THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

(Not for Publication — Rule 111, Rules of the Arizona Supreme Court)

MEMORANDUM DECISION

SWANN, Judge.

¶1 Defendant Ramon Jesus Gonzalez timely appeals from the determination that he violated the terms of his probation. This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Defendant's appellate counsel has searched the record on appeal, found no arguable nonfrivolous question of law, and asks us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Defendant was given the opportunity to file a supplemental brief in propria persona but did not do so.

¶2 We have searched the record for fundamental error and find none. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶3 On January 12, 1999, Defendant was indicted for two counts of molestation of a child under 15 years of age (Counts 1-2). On April 28, 1999, Defendant entered into a plea agreement and pled guilty to attempted sexual conduct with a minor in exchange for the state's dismissal of Counts 1-2. The plea agreement set forth that the crime carried a maximum sentence of 15 years in prison but provided that probation was available. On June 4, 1999, the superior court placed Defendant on supervised probation for 15 years and imposed a 365-day period of confinement as a condition of probation. Defendant was credited with 20 days of presentence incarceration. As a condition of his probation, Defendant agreed to abide by the special regulations of probation for sex offenders.

¶4 In November 2009, the state filed a petition to revoke Defendant's probation. The state alleged that Defendant violated special regulations 20-(D)(8)1 and 20-(D)(12).2 On January 15, 2010, Defendant admitted to violating special regulations 20-(D)(8) and 20-(D)(12). Defendant's probation was reinstated on January 22, 2010, with seventy-three days of non-compliance added and a new discharge date of August 15, 2014.

¶5 On October 18, 2010, the state filed a second petition to revoke Defendant's probation, and Defendant was arrested because he failed to actively and meaningfully participate in a recognized sex offender treatment program. Defendant's probation was eventually reinstated on February 18, 2011, but was extended for 130 days resulting in a new discharge date of December 23, 2014.

¶6 Under the reinstated probation agreement, Defendant was required to "request and obtain written permission of the APD [Adult Probation Department] prior to leaving [Arizona]" ("Condition 8"). The conditions of Defendant's probation also included a requirement that Defendant abide by the special regulations of probation for sex offenders. Special Regulation 1 set forth that Defendant was not to "initiate, establish, or maintain contact whatsoever with any child (under the age of 18) nor attempt to do so as defined by the Definition of Terms Regarding Contact with Minors, except under circumstances approved in advance and in writing by the APD." Special Regulation 17 required Defendant to "not use any computer equipment or electronic media that accesses the [I]nternet without prior written approval of the APD."

¶7 On February 10, 2012, the state filed a third petition to revoke probation. The petition set forth that "[u]pon information and belief," Defendant violated Special Regulation 1 by "initiat[ing], establish[ing], and maintain[ing] contact with minors without the written approval from the Adult Probation Department[,]" and Defendant violated Special Regulation 17 by "us[ing] a computer or other electronic media to access the internet without prior written approval of the Adult Probation Department." In an addendum, the state further alleged that Defendant violated Condition 8 by leaving Arizona without permission.

¶8 On May 17, 2012, a probation violation hearing took place. The superior court found that Defendant violated Condition 8 because he impermissibly left the state, and he violated Special Regulations 1 and 17 because he admitted to accessing the Internet on his iPod and had contact with minors through a social networking website. After considering the evidence, the court revoked Defendant's probation. On August 2, 2012, the disposition hearing took place. Due to the fact that this was the court's third finding of a probation violation, the court did not reinstate Defendant's probation because it found "that the defendant knew what he was doing was a violation of probation" and Defendant would likely violate probation again.

¶9 Defendant received a 5.5 year term of imprisonment and was credited with 728 days of time previously served.

¶10 We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

DISCUSSION

¶11 The record reveals no fundamental error. Defendant was represented by counsel at all critical proceedings.

¶12 We will uphold the finding of the superior court regarding a violation of probation "unless it is arbitrary or unsupported by any theory of evidence." State v. Moore, 125 Ariz. 305, 306, 609 P.2d 575, 576 (1980). In this case, the evidence that the state presented at trial was properly admissible. The state presented evidence that Defendant violated his probation by traveling out of state to California without permission. Also, Defendant accessed the Internet on his iPod and conversed with minors through his son's Facebook account. The superior court found that the state presented reasonable evidence to show that Defendant's actions violated probation. We conclude that the findings of the superior court were supported by evidence and were not arbitrary.

¶13 The court, in its discretion, imposed a sentence of 5.5 years in prison. The court correctly calculated Defendant's presentence incarceration credit of 728 days.

¶14 We acknowledge that the disposition hearing took place more than 20 days after the violation of probation, therefore violating Ariz. R. of Crim. P. 27.8(c).3 But, "[i]n order to justify reversal . . . the trial error must be prejudicial to the substantial rights of the appealing party[,]" and "[t]he prejudicial nature of the error will not be presumed but must affirmatively appear from the record." Walters v. First Fed. Savs. & Loan Ass'n of Phoenix, 131 Ariz. 321, 326, 641 P.2d 235, 240 (1982). We find no prejudice.

CONCLUSION

¶15 We have reviewed the record for fundamental error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881.

¶16 Defense counsel's obligations pertaining to this appeal have come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Defendant of the status of this appeal and his future options. Id. Defendant has 30 days from the date of this decision to file a petition for review in propria persona. Ariz. R. Crim. P. 31.19(a). Upon the court's own motion, he has 30 days from the date of this decision in which to file a motion for reconsideration.

PHILIP HALL, Presiding Judge and SAMUEL A. THUMMA, Judge, concurring.