State v. Lemole

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ELIZABETH ANNE LEMOLE, Appellant.

No. 1 CA-CR 18-0331
FILED 2-19-2019

Appeal from the Superior Court in Navajo County
No. S0900CR99000136
The Honorable Robert J. Higgins, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee

The Rigg Law Firm, PLLC, Pinetop
By Brett R. Rigg
Counsel for Appellant
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MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Kenton D. Jones and Chief Judge Samuel A. Thumma
joined.

W I N T H R O P, Judge:

¶1 Elizabeth Lemole appeals revocation of her probation,
claiming the revocation was based on a finding she had violated conditions
of probation that had not previously been provided to her in writing.
Because Lemole has shown no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In 1999, Lemole was indicted in Arizona for one count of
fraudulent schemes and artifices, and forty-nine counts of forgery. Two
years later, she was convicted of two counts of passing bad checks in
Pennsylvania, and one count of aggravated motor theft in Colorado. In
2003, while incarcerated in Pennsylvania, Lemole pleaded guilty in Arizona
to the count of fraudulent schemes and twenty-two counts of forgery—the
Mohave County superior court suspended her sentence and placed her on
seven years’ probation, to begin only after completing her non-Arizona
sentences.1

¶3 After finishing her Pennsylvania sentence, Lemole went to
Colorado to serve her sentences of incarceration and probation there. While
Lemole served her sentences in Colorado, Lemole’s Arizona probation
officer in September of 2011 sent “implementation” documents to her
Colorado probation officer. According to a Review and Acknowledgment
of Terms of Probation containing Lemole’s signature, those implementation
documents included her terms and conditions of probation, instructed

1 Although Lemole appeared telephonically at the Mohave County
hearing where she was placed on probation, the resulting minute entry
states, in part: “The written terms and conditions of probation are handed
to the Defendant for explanation, acceptance, and signature. . . . The
Defendant is advised concerning the consequences of failure to abide by the
conditions of probation.”

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Lemole to “[o]bey all laws and . . . not engage in any criminal activity,” and
provided details as to the length of probation and reporting requirements.
These implementation documents were returned to Arizona bearing
Lemole’s signature. Lemole later testified to signing the implementation
documents; she also testified, however, that she never signed her uniform
conditions of probation, which she claimed she never received until 2013.

¶4 Lemole’s Arizona probation began in April of 2011, when she
completed her Colorado sentences. Three years later, Lemole again
committed crimes in Pennsylvania, where she was charged with five counts
of passing bad checks and one count of theft by unlawful taking or
disposition. She was later convicted of four counts of bad checks, and
sentenced to prison. As relevant here, in July 2014, Lemole’s Arizona
probation officer petitioned the court to revoke her probation, citing her
Pennsylvania convictions. Following a series of evidentiary hearings, the
court found that Lemole had violated her probation by committing new
offenses in Pennsylvania, and on that ground, revoked her probation and
sentenced her to aggravated, concurrent prison terms of 10 and 2.5 years.

¶5 Lemole timely appealed revocation of her probation. We
have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution, and Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(1), 13-4031, and -4033(A).

ANALYSIS

¶6 We review a revocation of probation for abuse of discretion
and will reverse only upon a finding of “capriciousness or arbitrariness on
the part of the trial court.” State v. Sanchez, 19 Ariz. App. 253, 254 (1973)
(citing State v. Douglas, 87 Ariz. 182 (1960)).

I. Whether a Probationer Must Receive a Copy of Her Probation’s
Terms and Conditions for Probation to be Revoked for a Violation of
the Law

¶7 Section 13-901(C) and Arizona Rule of Criminal Procedure
(“Rule”) 27.1 together detail when and how the court may revoke
probation. Section 13-901(C) states in relevant part that “if the defendant
commits an additional offense or violates a condition, [the court] may
revoke probation in accordance with the rules of criminal procedure.” Rule
27.1, which dictates revocation implementation procedures, states that
“[t]he court and probation officer must give the probationer a written copy
of the conditions and regulations” of her probation.

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¶8 Lemole contends Rule 27.1 requires she be provided the terms
and conditions of her probation before such probation may be revoked for
any reason, including the further violation of criminal statutes, and that the
alleged failure to do so constitutes fundamental error. The State urges us
to reject this reading of the Rule, and argues that State v. Acosta, 25 Ariz.
App. 44 (1975), provides that when probation is revoked because of a
subsequent violation of criminal law, Rule 27.1 does not prohibit the court
from revoking probation even if the defendant did not receive a copy of the
terms and conditions of her probation.

¶9 Lemole’s implication that she was not on notice that the terms
of her probation prohibited her from violating the law, or that her probation
could be revoked as a result of such subsequent criminal behavior, is
unsupportable. At a November 19, 2015 hearing, Lemole testified that she
signed the implementation documents (which included that requirement)
provided to her in September 2011. Lemole also testified to receiving her
uniform conditions of probation by the end of 2013, months before her
probation officer alleged she violated probation by committing the new
Pennsylvania offenses.

¶10 Regarding the application of A.R.S. § 13-901(C), we first note
the legislature’s care in disjunctively stating the two qualifying grounds for
revocation: (1) committing an additional offense, or (2) violating a condition
of probation. The disjunctive nature of the statute clearly indicates that
commission of an additional criminal offense, even if not explicitly
forbidden by the conditions of probation, is sufficient grounds to revoke
probation. See State v. Crowder, 103 Ariz. 264, 265 (1968) (interpreting
A.R.S. § 13-1657, the predecessor to A.R.S. § 13-901).

¶11 The court must further ensure, however, that it revokes
probation “in accordance with the rules of criminal procedure.”
A.R.S. § 13-901(C). In Acosta, this court addressed the application of Rule
27.1 when a court revokes probation for violation of a criminal law, stating:

Rule 27.1 does not require . . . that a probationer be furnished
with a copy of a written prohibition against violation of the
laws. The purpose of Rule 27.1 as to written conditions and
regulations is to apprise a probationer of [a]dditional
conditions which might be grounds for revocation other than
the general conditions enumerated in A.R.S. Sec. 13-1657. . . .
It is these special conditions and regulations that must be in
writing and furnished to the probationer so that . . . [the
defendant] cannot later be heard to say that he did not

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understand and concomitantly will be protected from
arbitrary action on the part of probation officers.

25 Ariz. App. at 45 (internal footnote, quotations, and citation omitted). To
be sure, Acosta addressed the now-repealed predecessor statute to
A.R.S. § 13-901(C). Because the two statutes are sufficiently similar,
however, we find the reasoning in Acosta regarding the applicability of Rule
27.1 to still be good law. Compare the operative language of the repealed
statute, A.R.S. § 13-1657 (allowing revocation when the defendant is
“violating the conditions of his probation, or engaging in criminal practices,
or has become abandoned to improper associates, or a vicious life”)
(emphasis added), with the operative language of the successor statute,
A.R.S. § 13-901 (allowing revocation when the defendant “commits an
additional offense or violates a condition” of probation) (emphasis added);
see also State v. Brodie, 127 Ariz. 150 (App. 1980) (upholding under
A.R.S. § 13-901 the court’s rule regarding offsetting pre-sentence jail time
against probation under A.R.S. § 13-1657).

¶12 Lemole argues that our Supreme Court’s ruling in State v.
Stotts, 144 Ariz. 72 (1985), effectively overturned Acosta. In Stotts, however,
the Supreme Court held only that “a court may not revoke probation for a
violation of a condition or regulation of which the probationer has not
received a written copy.” Stotts, 144 Ariz. at 78 (citations omitted). There,
the defendant was charged with violating a specific condition of probation
that he successfully complete an in-patient treatment program in the State
of Washington. Id. at 77. Stotts did not receive a copy of the terms and
conditions of his probation at the time of sentencing, as required by Rule
27.1. Id. at 76. He did, however, receive and acknowledge the applicable
terms and conditions some years later at the time transfer of his probation
from Washington to Arizona was in process. Id. at 77. The Supreme Court
held that, after receipt, the defendant was on notice of the behavior
expected of him, and this cured any due process violation, as the probation
violation did not occur until after Stotts received the terms and conditions.
Id. at 79.

¶13 The record in this case is disputed as to whether Lemole
received the terms and conditions of her probation at the time of imposition,
but, similar to Stotts, there is evidence, including Lemole’s own testimony,
that she indeed received those terms and conditions of probation some
years later from a Colorado probation officer as part of a process to transfer
responsibility for supervision of the Arizona probation term to Colorado
authorities. We further note that Stotts cites Acosta with approval and does
not comment on or otherwise overrule its clear holding that a revocation

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may proceed for a probationer’s post-sentencing violation of criminal law
notwithstanding the failure of the State to provide a copy of the terms and
conditions of probation at the time of sentencing. See id. at 78. Finally, we
note that while Lemole later denied receiving a copy of the terms and
conditions of probation from the Colorado probation officer, there is
documentary evidence showing otherwise, and the court in Stotts
specifically held that circumstantial proof of receipt of probation conditions
is sufficient. Id. at 79-80.

¶14 We hold that, under the authority of Acosta, Arizona’s Rules
of Criminal Procedure do not require that Lemole be provided a copy of the
conditions of her probation before the court may revoke such probation for
a subsequent violation of criminal law. In the alternative, under the
authority of Stotts, there was sufficient circumstantial evidence in the
record to show that Lemole was advised, at least by 2011, as to the terms
and conditions of her Arizona probation—specifically, the prohibition
against engaging in further criminal behavior—and this cured any violation
of Rule 27.1 before Lemole engaged in the criminal conduct that led Arizona
authorities to file the amended petition to revoke in 2014.

¶15 Accordingly, we find no error occurred, fundamental or
otherwise. See State v. Escalante, 245 Ariz. 135, 141, ¶ 21 (2018) (stating the
first step in fundamental error review is determining whether error
occurred). We note, however, that even if error had occurred—that is, if the
State had been required to provide Lemole her probation conditions in
writing for her probation to be revoked for subsequent criminal offenses—
Lemole would still be required to show prejudice. Id.2 Even if the court did
not comply with Rule 27.1, however, Lemole fails to show prejudice
because the record reflects she did, in fact, receive her conditions of
probation before the date of the alleged violation. Therefore, there was no
reversible fundamental error.

II. Admission of the Implementation Documents

¶16 Finally, Lemole asks this Court to determine whether the
superior court properly admitted the signed implementation forms. While

2 Escalante holds that “[a] defendant establishes fundamental error by
showing that (1) the error went to the foundation of the case, (2) the error
took from the defendant a right essential to his defense, or (3) the error was
so egregious that he could not possibly have received a fair trial.” If found,
the first two require a subsequent finding of prejudice; the third is
inherently prejudicial. Escalante, 245 Ariz. at 142, ¶ 21.

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it is true that, at a March 2016 evidentiary hearing, Lemole’s attorney
objected to the documents’ admission for lack of foundation, such objection
was too late. At an earlier evidentiary hearing in November of 2015, the
very same documents were admitted into evidence without any objection
by Lemole or her counsel. As such, the court’s rejection of the untimely
foundational objection in the 2016 hearing was entirely proper. We further
note that in her own testimony, Lemole admitted having received and
signed the documents in question. In short, we perceive no error,
fundamental or otherwise.

CONCLUSION

¶17 The superior court did not abuse its discretion or otherwise
err. We affirm revocation of Lemole’s probation.

AMY M. WOOD • Clerk of the Court
FILED: AA

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