State v. Rodriguez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

DIONDRE LAMON RODRIGUEZ, Appellant.

No. 1 CA-CR 21-0523
FILED 8-9-2022

Appeal from the Superior Court in Apache County
No. SO100CR202000267
The Honorable Michael D. Latham, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Kathryn A. Damstra
Counsel for Appellee

The Brewer Law Office, Show Low
By Benjamin M. Brewer
Counsel for Appellant
 STATE v. RODRIGUEZ
Decision of the Court

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Maria Elena Cruz and Judge Angela K. Paton joined.

S W A N N, Judge:

¶1 Diondre Lamon Rodriguez appeals the superior court’s order
revoking his probation. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In May 2021, Rodriguez pleaded guilty to one count of
possession or use of a dangerous drug. The superior court suspended his
sentence and placed Rodriguez on four years of supervised probation.

¶3 Rodriguez received and signed a copy of the Uniform
Conditions of Supervised Probation. Rodriguez acknowledged that his
probation could be revoked if he violated any of the conditions.

¶4 The probation conditions permitted Rodriguez to apply for
Interstate Compact supervision in California. Believing Rodriguez’s
application to transfer to California was complete, his probation officer
allowed him to travel to California. Within a day, Rodriguez’s probation
officer discovered that Rodriguez had two outstanding criminal issues that
needed to be resolved before he could be transferred to California. He
called Rodriguez and directed him to return to Arizona until the issues
were resolved. Rodriguez told his probation officer that he would return
to Arizona, but never did.

¶5 The probation officer filed a petition to revoke Rodriguez’s
probation in July 2021, alleging three violations. Condition 6 required
Rodriguez to report to the probation department within 72 hours of
sentencing and to continue to report to the probation department “as
directed.” The petition alleged that Rodriguez violated Condition 6 by
failing to return to Arizona to report to probation as directed. Condition 7
required Rodriguez to reside in a residence approved by the probation
department. The petition alleged that Rodriguez violated Condition 7 by
absconding and failing to live in an approved residence. Condition 9
required Rodriguez to refrain from leaving for California until the
probation department issued a travel permit and the Arizona probation

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 STATE v. RODRIGUEZ
Decision of the Court

department received reporting instructions from California. The petition
alleged that Rodriguez violated Condition 9 because he did not finish his
application for Interstate Compact transfer and left Arizona before
receiving reporting instructions from California.

¶6 After a hearing, the court found that the state proved all three
violations by a preponderance of the evidence. The court revoked
Rodriguez’s probation and sentenced him to the presumptive term.

¶7 Rodriguez appeals.

DISCUSSION

¶8 Rodriguez contends the court abused its discretion in
revoking his probation because none of his probation conditions required
him to return to Arizona at the oral directive of his probation officer if an
issue with Interstate Compact arose, and probation did not modify the
conditions in writing to allow this directive.1 We review the court’s
decision to revoke probation for abuse of discretion, State v. Sanchez, 19
Ariz. App. 253, 254 (1973), and will uphold the court’s violation findings
unless they are “arbitrary or unsupported by any theory of evidence,” State
v. Thomas, 196 Ariz. 312, 313, ¶ 3 (App. 1999).

¶9 Under Arizona Rule of Criminal Procedure 27.1(b), all
probation conditions must be in writing and given to the probationer. Any
modification of a probation condition also must be in writing and given to
the probationer. Ariz. R. Crim. P. 27.3(c). “An oral modification may not
be the sole basis for revoking probation unless the condition or regulation
is in writing and both the probationer and the probation department
received a copy before the violation.” Id.

¶10 Here, Condition 6 required Rodriguez to report to probation
as directed. There was no requirement that the directive be in writing.
According to the probation officer’s testimony, when probation discovered
an error with Rodriguez’s Interstate Compact application, the probation
officer called Rodriguez and directed him to return to Arizona to resolve
the issues. The probation officer’s directive to return to Arizona to resolve
the issues with Rodriguez’s Interstate Compact application did not need to

1 Rodriguez does not challenge the court’s revocation based on his
violations of Condition 7 and Condition 9. Because it is unclear from the
court’s order whether it would have revoked Rodriguez’s probation on
those two violations alone, we review Rodriguez’s argument on the merits.

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Decision of the Court

be in writing because the condition to report to probation as directed was
already in writing and given to Rodriguez.

¶11 To support his argument that the directive modified
Condition 6, Rodriguez relies on State v. Jones, 163 Ariz. 498 (App. 1990),
State v. Robinson, 177 Ariz. 543 (1994), and In re Richard M., 196 Ariz. 84
(App. 1999), in which the superior court erred in revoking probation based
on verbal directives to participate in certain counseling or testing programs.
The verbal directives in those cases are unlike the directive at issue here. In
those cases, the verbal directives modified written conditions by adding
specific requirements that required ongoing compliance by the
probationers. Jones, 163 Ariz. at 499; Robinson, 177 Ariz. at 543–45; In re
Richard M., 196 Ariz. at 85–86, ¶¶ 4–8. Here, the probation officer directed
Rodriguez to report to probation in Arizona to resolve the issues with his
Interstate Compact application. This was not an added obligation or
modification of a condition. Rodriguez agreed to report to probation as
directed and probation directed him to report. In other words, Condition 6
“specifically [told] the defendant what he must do.” See Robinson, 177 Ariz.
at 544. There was no modification and no requirement for a writing.

CONCLUSION

¶12 The court did not abuse its discretion in revoking Rodriguez’s
probation. We affirm.

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

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