                               IN THE
              ARIZONA COURT OF APPEALS
                             DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                JAMES NICHOLAS SHIVELY, Appellant.

                         No. 1 CA-CR 13-0309
                          FILED 5-13-2014


          Appeal from the Superior Court in Maricopa County
                       No. CR2011-144042-001
           The Honorable Justin Beresky, Judge Pro Tempore

       JUDGMENT AFFIRMED IN PART; VACATED IN PART


                              COUNSEL

Arizona Attorney General's Office, Phoenix
By Jana Zinman
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Tennie B. Martin
Counsel for Appellant


                              OPINION

Chief Judge Diane M. Johnsen delivered the opinion of the Court, in
which Presiding Judge Patricia A. Orozco and Judge Kenton D. Jones
joined.
                              STATE v. SHIVELY
                              Opinion of the Court

J O H N S E N, Judge:

¶1           James Nicholas Shively enrolled in a residential drug
treatment program as a condition of his probation for a drug offense, but
was expelled from the program a month later after he was discovered
using heroin. Ruling on a petition to revoke his probation, the superior
court found that by bringing a drug into the program, Shively "refused"
drug treatment, a finding that rendered him ineligible for mandatory
probation under Arizona Revised Statutes ("A.R.S.") section 13-901.01(G)
(2014). 1 We affirm the superior court's finding that Shively violated his
probation, but vacate its finding that he refused drug treatment by
possessing heroin while in the program.

                  FACTS AND PROCEDURAL HISTORY

¶2            Shively pled guilty to felony possession of marijuana in July
2012. The court imposed 18 months' probation pursuant to A.R.S. § 13-
901.01. In December 2012, Shively's probation officer petitioned the court
to revoke Shively's probation. Shively admitted he had failed to comply
with the condition requiring him to submit to drug testing, and the court
reinstated him on probation.

¶3            Shively entered a residential drug treatment program on
February 7, 2013. On March 3, he was terminated from the program after
heroin was found in his room at the treatment facility. The day he was
released from treatment, Shively was placed on a 24-hour suicide watch
through the Veterans Administration; he said he "knew [he] had screwed
up, and [he] didn't want to get kicked out of rehab." After Shively's
probation officer learned he had been expelled from the program, the
probation officer filed another petition to revoke, alleging Shively "did not
actively participate and cooperate in inpatient substance abuse counseling
or assistance," had been terminated from substance abuse counseling, and
"possessed or used heroin."

¶4              At the hearing on the petition to revoke, the probation
officer testified that when he met with Shively following his termination
from the drug program, Shively told him that he "just wants to be
reinstated to probation and get on with his life, work a job, make money."
The probation officer told Shively that to be reinstated on probation, he


1      Absent material revision after the relevant date, we cite a statute's current
version.



                                         2
                           STATE v. SHIVELY
                           Opinion of the Court

would have to complete substance abuse treatment. Shively applied to
another substance abuse program about a month after the first treatment
center discharged him, but had not yet been admitted at the time of the
hearing.

¶5            The court found Shively refused drug treatment "based on
bringing heroin into the program, in violation of the rules of the treatment
program; that he, in essence, did reject the treatment program that was
afforded to him." The court nevertheless reinstated Shively on probation.

¶6             Shively timely appealed the court's finding that he refused to
participate in treatment. We have jurisdiction pursuant to Article 6,
Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2014),
13-4031 (2014) and -4033(A) (2014). 2

                              DISCUSSION

¶7            Arizona law makes probation mandatory for certain first
and second drug convictions. Pursuant to A.R.S. § 13–901.01(A), (B),
unless a person "has been convicted of or indicted for a violent crime,"
upon a first or second conviction of "personal possession or use of a
controlled substance or drug paraphernalia" not involving
methamphetamine, the court "shall suspend the imposition or execution
of sentence and place the person on probation." With one exception, the
court may not thereafter revoke the defendant's probation; instead, upon a
violation of probation, it only may impose "new conditions of probation."
A.R.S. § 13–901.01(E).

¶8           The exception to mandatory probation occurs when a
probationer refuses drug treatment. Under the statute, the probation
department may petition to revoke probation if the probationer "fails or


2       The superior court reinstated Shively's probation even though it
found he refused to participate in treatment and was no longer eligible for
mandatory probation under A.R.S. § 13-901.01. The State argues Shively's
appeal therefore is moot. The matter is not moot, however, because the
superior court's finding may render Shively ineligible for mandatory
probation in a future proceeding. A.R.S. § 13-901.01(H) (person is not
eligible for mandatory probation under this section if the court finds the
person "[r]efused drug treatment as a term of probation"); see Raney v.
Lindberg, 206 Ariz. 193, 200 n.8, 76 P.3d 867, 874 n.8 (App. 2003).




                                     3
                            STATE v. SHIVELY
                            Opinion of the Court

refuses to participate in drug treatment." A.R.S. § 13–901.01(G). 3 But
upon filing of such a petition, the court may revoke probation and impose
a sentence of incarceration only if it finds the probationer "refused" to
participate in drug treatment. Id.; see State v. Vaughn, 217 Ariz. 518, 521, ¶
13, 176 P.3d 716, 719 (App. 2008). Thus, if the court finds a probationer
has "refused to participate in drug treatment," he or she loses the statutory
benefit of mandatory probation. Such a finding is called a "302" finding,
referencing Proposition 302, which was passed by voter referendum in
November 2002 and which added subpart (G) to § 13-9012.01. See Vaughn,
217 Ariz. at 520, ¶ 9 n.3, 176 P.3d at 718 n.3.

¶9            Shively argues the superior court erred by concluding he
refused treatment based solely on a relapse in residential treatment. We
will uphold a superior court's finding of fact "unless the finding is
arbitrary or unsupported by any theory of evidence." Vaughn, 217 Ariz. at
521, ¶ 14, 176 P.3d at 719; State v. Moore, 125 Ariz. 305, 306, 609 P.2d 575,
576 (1980).

¶10           The State argues § 13-901.01(G) allows a court to revoke
probation and sentence a probationer to prison "if after having a
reasonable opportunity to do so the defendant fails or refuses to
participate in drug treatment." A.R.S. § 13-901.01(G). As stated above,
however, under the statute, the court may impose incarceration only if it
finds the probationer refused to participate in drug treatment, and may not
do so based on a mere finding that he or she failed to do so. Id.

¶11          At the hearing, Shively's probation officer and a social
worker from the Phoenix VA Medical Center testified Shively was
expelled from the residential drug treatment program for possessing and




3      Section 13-901.01(G) provides: "At any time while the defendant is
on probation, if after having a reasonable opportunity to do so the
defendant fails or refuses to participate in drug treatment, the probation
department or the prosecutor may petition the court to revoke the
defendant's probation. If the court finds that the defendant refused to
participate in drug treatment, the defendant shall no longer be eligible for
probation under this section but instead shall be sentenced pursuant to
chapter 34 of this title."




                                      4
                          STATE v. SHIVELY
                          Opinion of the Court

using heroin. The State argues that evidence supports the court's finding
that Shively refused treatment. 4

¶12          After hearing the evidence, the court commented:

             I'm struggling with the 302 issue because I agree with
      the State, in part, that at some point, continuing to use while
      you're in a program, despite wanting to get treatment, at
      some point there has to be a finding that you're rejecting that
      treatment by continuing to use.

              At the same time, I recognize the power of addiction
      and that someone may very -- in their heart want to address
      their treatment and address the addiction issues, but are just
      having a hard time physically dealing with the addiction.

             I mean, there's a difference between violating the
      rules of a treatment program and rejecting the treatment.

Without further explanation, the court found "that based on bringing
heroin into the program, in violation of the rules of the treatment
program; that he, in essence, did reject the treatment program."

¶13          We conclude insufficient evidence supported the superior
court's conclusion that Shively "refused" drug treatment within the
meaning of § 13-901.01(G). The only evidence offered at the hearing was
that Shively used and possessed heroin while in a residential drug
treatment program. But we have held that "evidence that one possessed
or used drugs is not equivalent to evidence that one refused to participate
in drug treatment." Vaughn, 217 Ariz. at 523, ¶ 25, 176 P.3d at 721.
Likewise, possession or use of a drug while in treatment, in violation of
the rules of treatment, does not by itself amount to a refusal of drug
treatment. That is particularly so here, in light of evidence Shively
participated in the treatment program for nearly four weeks without
apparent incident, required a suicide watch immediately after he was

4      The State also argues Shively possessed heroin on two other
occasions before he entered the residential drug treatment program. The
State does not explain how drug use before a probationer enters treatment
demonstrates he has refused treatment. Beyond the bare allegations of the
revocation petition, moreover, no evidence of the other alleged occasions
was offered at the hearing and no reference to them appears in the record.




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                            STATE v. SHIVELY
                            Opinion of the Court

expelled and later applied for entry into another drug treatment program.
Section 13-901.01(G) draws a distinction between a failure to complete
drug treatment and a refusal to participate in drug treatment. Shively
failed to complete drug treatment when he relapsed and was expelled.
That evidence, however, does not by itself support a finding that he
refused drug treatment.

¶14             To conclude that a relapse while in drug treatment by itself
is a refusal to participate in treatment is to deny the realities of addiction
recovery. 5 Although the evidence was that Shively possessed and used
heroin in violation of his probation and treatment program rules, the
circumstances reflect a person falling short of completing a treatment
program, not a person rejecting treatment. Shively was at the treatment
facility, as he was supposed to be, and no evidence was offered, and the
court did not find, that he failed or refused to participate in any meetings,
counseling sessions or other activities of the treatment program. After
Shively was forced to leave the program, he went that same day to seek
help at the VA. When his probation officer told Shively that to remain on
probation he would have to participate in treatment, instead of refusing,
Shively enrolled in another program a few weeks later.

¶15          Because insufficient evidence supported a finding that
Shively refused to participate in drug treatment, the superior court erred
in determining he refused treatment and therefore was not eligible for
mandatory probation pursuant to A.R.S. § 13-901.01(G).

5       "Recovery from drug addiction is a long-term process and
frequently requires multiple episodes of treatment. As with other chronic
illnesses, relapses to drug abuse can occur and should signal a need for
treatment to be reinstated or adjusted." Principles of Drug Addiction
Treatment: A Research-Based Guide 3 (Nat’l Inst. on Drug Abuse, Nat’l Insts.
of Health, U.S. Dept. of Health and Human Servs., eds., 3d ed. 2012),
available at http://www.drugabuse.gov/publications/principles-drug-
addiction-treatment-research-based-guide-third-edition/principles-
effective-treatment. "Unfortunately, when relapse occurs many deem
treatment a failure. This is not the case: Successful treatment for addiction
typically requires continual evaluation and modification as appropriate,
similar to the approach taken for other chronic diseases." Id. at 12,
available at
http://www.drugabuse.gov/publications/principles-drug-addiction-
treatment-research-based-guide-third-edition/frequently-asked-
questions/how-effective-drug-addiction-treatment



                                      6
                          STATE v. SHIVELY
                          Opinion of the Court

                            CONCLUSION

¶16          For the reasons stated above, we affirm the order reinstating
Shively on probation but vacate the finding that he refused drug
treatment pursuant to A.R.S. § 13-901.01(G).




                                        :MJT




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