In Re Fernando R.

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re FERNANDO R.

No. 1 CA-JV 13-0222
FILED 3-27-2014

Appeal from the Superior Court in Maricopa County
No. JV558594
The Honorable Shellie Smith, Judge Pro Tempore

AFFIRMED

COUNSEL

Maricopa County Office of the Public Advocate, Phoenix
By Katherine Badrick
Counsel for Appellant Fernando R.

Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Appellee State of Arizona
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MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.

S W A N N, Judge:

¶1 Fernando R. appeals from the juvenile court’s disposition
order committing him to the Arizona Department of Juvenile Corrections
(“ADJC”). Fernando contends that the court abused its discretion by
failing to understand alternatives to commitment, by relying on factual
mistakes in its disposition, and by failing to consider the Arizona Supreme
Court’s guidelines for the commitment of minors to ADJC (“Commitment
Guidelines”). We find no such errors, and affirm.

FACTS AND PROCEDURAL HISTORY

¶2 At age 15, Fernando pled delinquent to theft and possession
of marijuana, both class 1 misdemeanors, and was placed on standard
probation in February 2013. The court found Fernando in violation of
probation the next month, but he failed to appear for disposition after
cutting off his electronic monitoring unit and running away from home.
He was eventually arrested and placed on intensive probation, but within
a week his mother informed authorities that he had stolen her cell phone
and $200 of her rent money before running away once more.

¶3 Fernando was detained again in June 2013 for shoplifting
and for stealing a bicycle, which he told the arresting police officer that he
had sold for marijuana. He pled delinquent to one count of misdemeanor
theft and the court set disposition for July 12. Fernando thereafter
neglected to submit to required drug screenings, committed several house
arrest violations and ultimately failed to appear for disposition. He
possessed drug paraphernalia when police arrested him in mid-July, and
the court reset disposition for July 19.

¶4 Several parties presented disposition recommendations at
the July 19 hearing. Fernando’s probation officer and his guardian ad
litem both recommended commitment to ADJC. The guardian ad litem
explained that while the probation department had been willing to place
Fernando in a “residential treatment center, a locked facility,” Fernando
had responded “that he just absolutely would not do that [because h]e

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would not follow the rules [and h]e wasn’t going to participate.”
Fernando’s mother added, “I really don’t think that he’s going to obey the
rules either, because he’s been telling me that he’s going to do whatever
he can to run away.”

¶5 In contrast, defense counsel advocated for placement in a
residential treatment center over commitment because Fernando had only
misdemeanor adjudications on his record and suffered from low cognitive
functioning. Defense counsel and Fernando insisted that even though he
had been unwilling to explore residential treatment in the past, he was
now ready to remain in detention until such a placement became
available. Having considered the respective recommendations, the court
deferred disposition and asked the probation department to reevaluate
Fernando for residential treatment. The court told Fernando that it would
be inclined to follow the probation department’s updated
recommendation, and that his behavior in detention until disposition
would indicate whether he was in fact willing to undergo treatment.

¶6 The court heard renewed recommendations at the deferred
disposition. The probation officer and the guardian ad litem
acknowledged residential treatment as a possibility, but the probation
officer reaffirmed his recommendation for commitment, and the guardian
ad litem expressed concerns about residential treatment. An updated
psychological evaluation also recommended commitment. The updated
disposition report discussed commitment as a “last chance for
rehabilitative services” and as a way to hold Fernando accountable for his
delinquent conduct, emphasizing his numerous incident reports; his
continued drug abuse and gang involvement; his complete disregard for
authority; and his previously adamant resistance to residential treatment.
In addition, the report suggested that “[r]elease from secure care may be
based on [Fernando’s] . . . probability to no longer pose a risk to the
community.” A new staffing summary provided: “Fernando continues to
exhibit a pattern of behavior that is aggressive and violent. . . . Fernando
is a danger to himself and others and his need for supervision now
requires him to be committed to the [ADJC].” And an earlier information
report likewise noted that “Fernando places both himself and the
community in danger by the lifestyle he chooses to live.”

¶7 On the other hand, the state and defense counsel
recommended placement in a residential treatment center, and Fernando
in turn reiterated his interest in receiving treatment. In the end, “[b]ased
on the information presented,” the court revoked probation and ordered
Fernando, then 16, committed to ADJC until his 18th birthday, with a

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requirement that he serve at least 30 days in a locked facility. Fernando
timely appeals.

STANDARD OF REVIEW

¶8 “The juvenile court has broad discretion to determine an
appropriate disposition for a delinquent juvenile” and “[w]e will not alter
that disposition absent an abuse of discretion.” In re Niky R., 203 Ariz. 387,
390, ¶ 10, 55 P.3d 81, 84 (App. 2002). In the analogous context of adult
sentencing, “[a]n abuse of discretion . . . is characterized by
capriciousness, arbitrariness or by failure to conduct an adequate
investigation into facts necessary for an intelligent exercise of the court’s
sentencing power.” State v. Grier, 146 Ariz. 511, 515, 707 P.2d 309, 313
(1985). We view the facts in the light most favorable to sustaining the
juvenile court’s orders and resolve all reasonable inferences against
Fernando. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994);
In re John M., 201 Ariz. 424, 426, ¶ 7, 36 P.3d 772, 774 (App. 2001).

DISCUSSION

¶9 Fernando contends that the juvenile court abused its
discretion by committing him to ADJC rather than placing him in secure
residential treatment. Specifically, Fernando alleges that the court
(1) failed to understand that secure residential treatment existed as an
alternative to commitment; (2) relied on an inaccurate number of incident
reports in its disposition; and (3) failed to consider the Commitment
Guidelines before ordering commitment.

I. UNDERSTANDING OF THE COMMITMENT ALTERNATIVES

¶10 Fernando’s contention that the court failed to understand
that lockdown residential treatment was available is premised on the
court’s remarks during disposition. At the July 19 hearing, the following
exchange took place:

[FERNANDO]: . . . . I didn’t see it back then that I
needed help and now I do. I see that I need help. I’m
willing to wait as long as I can just to get treatment. I can go
to a lock-down treatment center if you guys want me to.

THE COURT: Well, I don’t think that we have a lock-
down treatment center, do we?

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[PROBATION]: Well, it’s RTC [Residential Treatment
Center] like Park Place and RDI.

THE COURT: Okay.

And at the August 13 disposition, the court responded to Fernando’s
expressed interest in residential treatment:

THE COURT: Well, treatment might work out for you
if you stayed in one place long enough to be able to take
advantage of it. But, I mean, when I look through your
profile or your referral history and you have 9 to 12 citations
or incidents of runaway --

Fernando interrupted the court and continued:

[FERNANDO]: Well, like, you ask me, like, send me to a
lock-down treatment center or something like that, you
know what I mean? I don’t need home passes or anything.
You know, how you -- those kids that get home passes into
treatment center?

Like, I know I have a history of running
and I know you guys, like, probably want me in one, like --
because you guys think I’ll run away or you has . . . to send
me a lock-down treatment center, you know, without no --
no, like, you know what I mean, like, visits, like, going to,
like, on the weekends and stuff how some people get for the
weekends?

THE COURT: I understand that.

[FERNANDO]: Light duty. Like --

THE COURT: No. I understand what you’re saying. It
-- unfortunately, Park Place is not that kind of a facility. . . .

I mean, there’s just no other community-
based alternatives that are appropriate in the case any
longer.

¶11 Fernando’s argument relies on Grier. In Grier, 146 Ariz. at
515, 707 P.2d at 313, our supreme court held that a sentence must be set
aside if the defendant can show: “(1) that the information before the
sentencing court was false or misleading and, (2) that the court relied on

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the false information in passing sentence.” The court reasoned that
“[c]onvicted defendants have a due process right to a fair sentencing
procedure which includes the right to be sentenced on the basis of
accurate information.” Id.

¶12 Although Fernando concedes that the parties in this case
presented accurate information to the court regarding the availability of
lockdown residential treatment, he argues that the reasoning from Grier
still applies. He contends that the court did not correctly understand the
information presented to it and then relied upon its flawed understanding
in ordering commitment rather than placement in secure residential
treatment. According to Fernando, even if the court seemingly learned
that Park Place was an available lockdown treatment center at the July 19
hearing, its statement that “Park Place is not that kind of a facility” at the
August 13 disposition demonstrates that it ordered commitment “under
the mistaken belief that Park Place was not a secure treatment center.”

¶13 However, Fernando does not identify any part of the record
in which the court relied on this supposed misunderstanding in its
disposition. To the contrary, the record reflects that the court understood
that secure residential treatment centers were available at the July 19
hearing and decided to defer disposition precisely because it wished to
consider them as an alternative to commitment. It was for that reason the
court asked the probation department to reevaluate its disposition
recommendation, which the court told Fernando it would be inclined to
follow. When the court ultimately ordered commitment, it explicitly did
so based on its consideration of the provided recommendations and
information. Nowhere beyond Fernando’s personal interpretation of the
court reporter’s transcripts does the court appear to order commitment
because it failed to understand that secure residential treatment was
available. This case is thus unlike In re Eric L., 189 Ariz. 482, 486-87, 943
P.2d 842, 846-47 (App. 1997), in which we remanded a restitution order
because the transcript plainly indicated that the court awarded full
restitution under the incorrect belief that it could not partially reduce it.

¶14 We therefore conclude that the juvenile court’s disposition
was neither arbitrary nor capricious, but considered, fully informed and
well within its discretion.

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II. RELIANCE ON THE NUMBER OF INCIDENT REPORTS

¶15 Fernando’s contention that the juvenile court relied on an
inaccurate number of incident reports is also based on the court’s
statements. The court addressed Fernando at the August 13 disposition:

It looks like, just in the year 2013, there have been five
warrants for your arrest. You spent over a 100 days in
detention . . . and during those 100 days, according to
probation, you had 63 incident reports. You’ve been on
electronic monitoring. You’ve been on juvenile intensive
probation.

....

Based on the information presented, the court finds
probation is no longer appropriate and it is ordered
committing [you] to the [ADJC].

For the first time on appeal, Fernando asserts that the record fails to
support the court’s statement that he had 63 incident reports, and that the
court erred by relying on this allegedly inaccurate number when it
ordered him committed. According to Fernando, “[t]he court’s specific
mentioning of the number of incident reports . . . indicates this was a fact
the court granted solid weight to in the decision to commit [him].”

¶16 We have reviewed the record and find no reversible error on
this issue. The updated disposition report from August 6 shows that
Fernando’s actions in detention had until then generated 58 incident
reports. In addition, the record contains an incident report dated August
7 and a probation department email explaining a separate incident on
August 9. The record is silent as to how many additional incident reports,
if any, Fernando accumulated before the August 13 disposition, but it
clearly shows that he had 60 incident reports as of August 9. Even
assuming the court inaccurately believed that he had accrued three more
reports at disposition, an issue we need not decide, Fernando has failed to
carry his burden of showing how this alleged discrepancy caused him any
prejudice. See In re Natalie Z., 214 Ariz. 452, 455, ¶ 7, 153 P.3d 1081, 1084
(App. 2007) (requiring juvenile to establish “fundamental and prejudicial
error . . . to justify a reversal of her adjudication based on a claim she
failed to raise below”); State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20, 115
P.3d 601, 607 (2005) (“Fundamental error review . . . applies when a
defendant fails to object to alleged trial error. . . . To prevail under this

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standard of review, a defendant must establish both that fundamental
error exists and that the error in his case caused him prejudice.”). There
comes a point at which the number of incidents so far surpasses the limits
of reason that a minor inaccuracy in the number could not conceivably
have changed the result. Sixty reports falls well beyond this point. We
also reject Fernando’s position, advanced without reference to any
authority, that “[i]nformation-only reports are not behavior based, and
should not concern the court at disposition.”1 See Ariz. R.P. Juv. Ct.
32(E)(3) (providing that during a probation violation hearing, “[t]he court
may admit any reliable evidence not legally privileged” (emphasis
added)).

III. CONSIDERATION OF THE COMMITMENT GUIDELINES

¶17 Failure to consider the Commitment Guidelines before
ordering commitment to ADJC is an abuse of discretion. See Niky R., 203
Ariz. at 390, ¶¶ 10-11, 55 P.3d at 84. But the Commitment Guidelines do
not otherwise constrain the court’s discretion to determine whether
commitment is a proper disposition in a delinquency case. Id. at ¶ 12; see
also In re Melissa K., 197 Ariz. 491, 495, ¶ 14, 4 P.3d 1034, 1038 (App. 2000)
(“A juvenile court is not required to follow the guidelines, but it must
consider them in making disposition.”).

¶18 The Commitment Guidelines advise the juvenile court to:

a. Only commit those juveniles who are adjudicated for a
delinquent act and whom the court believes require
placement in a secure care facility for the protection of the
community;

b. Consider commitment to ADJC as a final opportunity for
rehabilitation of the juvenile, as well as a way of holding the
juvenile accountable for a serious delinquent act or acts;

c. Give special consideration to the nature of the offense, the

1 Fernando correctly points out that the August 6 disposition report
does not specify how many of his incidents resulted in physical restraint
or confinement as opposed to an information-only report. But the report
does reveal that 12 out of 19 incident reports generated between July 16
and August 6 concerned his behavior problems or destruction of county
property.

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level of risk the juvenile poses to the community, and
whether appropriate less restrictive alternatives to
commitment exist within the community; and

d. Clearly identify, in the commitment order, the offense or
offenses for which the juvenile is being committed and any
other relevant factors that the court determines as reasons to
consider the juvenile a risk to the community.

Ariz. Code Jud. Admin. § 6-304(C)(1). We have interpreted these
guidelines to require the juvenile court to consider “(1) protection of the
community; (2) accountability; and (3) least-restrictive alternatives to
ADJC.” Niky R., 203 Ariz. at 391, ¶ 15, 55 P.3d at 85. Additionally, A.R.S.
§ 41-2816(A) provides that commitment is appropriate for “youth who
pose a threat to public safety [or] who have engaged in a pattern of
conduct characterized by persistent and delinquent offenses that, as
demonstrated through the use of other alternatives, cannot be controlled
in a less secure setting.”

¶19 In Niky R., a juvenile appealed his commitment to ADJC,
arguing that the court “failed to explore all alternatives to commitment”
and that there was insufficient “evidence showing that [he] posed a
significant risk to the community.” 203 Ariz. at 390, ¶ 10, 55 P.3d at 84. In
affirming the disposition, we focused on the fact that the juvenile had
been under court supervision for more than three years, had run away,
continued to commit delinquent acts, tested positive for marijuana and
failed to participate in rehabilitation programs. Id. at 392, ¶ 22, 55 P.3d at
86. There was also evidence that the juvenile “was a danger to himself
and the community” and that he “was violent, sold and used drugs, and
had no regard for the property of others.” Id. We concluded that the
court did not abuse its discretion by “hold[ing] the [juvenile] accountable
for his conduct and commit[ting] him to ADJC.” Id. at ¶ 23.

¶20 In this case, Fernando similarly argues that the court
disregarded the Commitment Guidelines, and in particular that it failed to
consider whether secure residential treatment would be an appropriate
less restrictive alternative for “a non-violent misdemeanor offender with
no serious adjudications.” Fernando’s argument rests on his assertions
that “[t]he court [did] not mention the guidelines in the hearing or while
ruling,” and that the court could not have considered secure residential
treatment as an alternative to commitment “because [it] did not know
secure residential treatment was available.”

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¶21 We do not agree with Fernando’s argument. First, “courts
should not apply the guidelines in a mechanical fashion but determine
whether, under the unique circumstances of the particular juvenile,
commitment to ADJC is appropriate.” Id. at 390, ¶ 13, 55 P.3d at 84. It is
not our role to prescribe how the individual factors weigh in the balance
of the court’s discretion. See In re James P., 214 Ariz. 420, 425, ¶ 24, 153
P.3d 1049, 1054 (App. 2007) (reviewing court “will not reweigh the
evidence”). Second, because “[w]e assume that judges follow and apply
the law,” we have held that “[n]either the new guidelines, the statute
[A.R.S. § 41-2816], nor our prior decisions require specific findings, or a
record showing, that the trial judge has ‘explored all alternatives’ to ADJC
prior to an adjudication committing a juvenile to ADJC.” Niky R., 203
Ariz. at 392, ¶ 21, 55 P.3d at 86. See also In re Maricopa Cnty., Juv. Action
No. JS-3594, 133 Ariz. 582, 585, 653 P.2d 39, 42 (App. 1982) (“[T]rial court
will be deemed to have made every finding necessary to support the
judgment.”). And third, as discussed above, it is reasonable to infer from
the record before us that the court considered secure residential treatment
as an alternative to commitment.

¶22 Though the court here did not explicitly reference the
Commitment Guidelines in making its decision, we find no abuse of
discretion. In fact, the court clearly stated that it ordered commitment
based on its consideration of the information presented, which revolved
around the appropriateness of residential treatment as an alternative to
commitment, Fernando’s danger to others and himself, and commitment
as an approach to holding Fernando accountable and as a last chance for
rehabilitation -- all the factors that the Commitment Guidelines advise the
court to contemplate. See Ariz. Code Jud. Admin. § 6-304(C); Niky R., 203
Ariz. at 391, ¶ 15, 55 P.3d at 85. The court’s finding that “[c]ommitting
[Fernando] to the [ADJC] . . . is the least restrictive alternative available”
further supports our conclusion that the court did not fail to consider the
Commitment Guidelines. On this record, the court could properly find
that Fernando posed a threat to the community and that he had engaged
in repeated delinquent offenses that could not be controlled through less
restrictive alternatives such as probation, electronic monitoring or
residential treatment. See A.R.S. § 41-2816(A).

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CONCLUSION

¶23 For the foregoing reasons, we affirm.

:MJT

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