Opinion
2 CA-CR 2023-0005
12-13-2023
The State of Arizona, Appellee, v. John Gabriel Sochor, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee Emily Danies, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Cochise County No. S0200CR201801046 The Honorable Timothy Dickerson, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee
Emily Danies, Tucson Counsel for Appellant
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
VÁSQUEZ, CHIEF JUDGE
¶1 John Sochor appeals the trial court's order revoking his probation following a contested probation violation hearing. Sochor contends the court abused its discretion in finding he violated his probation by failing to timely contact a probation officer upon his release from prison. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to sustaining the trial court's findings. See State v. Tatlow, 231 Ariz. 34, ¶ 15 (App. 2012). In 2019, pursuant to a plea agreement, Sochor pled no contest to weapons misconduct and marijuana possession after being restored to competency at the Arizona State Hospital. The trial court sentenced him to a three-year prison term on the weapons misconduct count and suspended the imposition of sentence for the possession count, placing him on a four-year term of supervised probation to commence on Sochor's release from the Arizona Department of Corrections, Rehabilitation, and Reentry (ADCRR). In a written document signed by Sochor, he agreed to the following condition of probation: "I will report to the [Arizona Probation Department (APD)] within 72 . . . hours of . . . absolute discharge from prison ...."
¶3 Upon his release from ADCRR in January 2021, an APD employee reviewed the terms and conditions of probation with Sochor, including the reporting condition, and Sochor signed and received a copy of a document implementing the conditions of probation. This implementation document also provided the name and contact information of the probation officer he was directed to contact "for further reporting instructions after release" from ADCRR and required him to "leave a message to include [his] name, address, phone number and a message phone number."
¶4 Approximately two days after his release, Sochor called the provided number from a pay phone but did not leave a message. After this failed attempt to make contact with the probation officer, he mailed APD a postcard that same day, stating his plans to be at U.S.VETS, a facility in Prescott that provides housing to veterans.
¶5 On February 4, 2021, the state filed a petition to revoke probation, alleging Sochor had failed to report to APD as directed, in violation of his conditions of probation, and "his whereabouts [were] unknown." Around February 11, APD learned Sochor was at U.S.VETS from the facility's outreach coordinator. APD provided the facility's outreach coordinator with contact information to provide to Sochor, but he never made contact. Sochor was arrested on March 22, pursuant to a warrant.
¶6 In December 2021, pursuant to Rule 11, Ariz. R. Crim. P., Sochor was found "not competent but restorable." After Sochor was restored to competency, the trial court held a probation violation hearing in April 2022. After considering the evidence, the court found "by a preponderance of the evidence" that Sochor had violated the conditions of his probation. In support of this determination, the court made the following findings:
Number 1, on or about October 21, 2019, Mr. Sochor was informed in writing that a condition of his probation was that he report to Probation within 72 hours of his release from incarceration.
And number 2, on or about January 14, 2021, Mr. Sochor was informed in writing that upon release from the Department of Corrections, he needed to contact Ofc. Julien at Yavapai Adult Probation.
And number 3, Mr. Sochor failed to report to Ofc. Julien at Yavapai Adult Probation within a reasonable amount of time.
In May 2022, the court revoked Sochor's probation, finding reinstatement of his probation was not appropriate, and sentenced him to a mitigated two-year term of imprisonment. Sochor appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
¶7 Sochor argues the trial court erred in finding he violated his probation because the degree to which his mental illness impeded him from successfully contacting his probation officer was unknown. In a probation violation proceeding, the state must prove by a preponderance of the evidence that the defendant violated the terms of his or her probation. Ariz. R. Crim. P. 27.8(b)(3). We review a court's determination that a defendant violated probation for an abuse of discretion. See State v. Portis, 187 Ariz. 336, 338 (App. 1996). Accordingly, we will uphold a trial court's finding that a defendant violated probation unless that finding "is arbitrary or unsupported by any theory of evidence." State v. Thomas, 196 Ariz. 312, ¶ 3 (App. 1999).
The state argues that we should dismiss this appeal as moot because Sochor has completed his prison term and subsequent community supervision. We decline to do so, however, because the trial court's finding that he violated his probation could negatively impact potential criminal proceedings in the future. Cf. State v. Brandt, 19 Ariz.App. 172, 172-73 (1973) (actual serving and completing sentence imposed by a revocation order does not make appeal from revocation order moot).
¶8 Sochor has not demonstrated that the trial court abused its discretion by determining he violated a condition of his probation by failing to report to APD upon his release from incarceration. The court found, based on Sochor's testimony, that "once [he] had made the one phone call attempt and the postcard attempt and [he] lost the number, [his] efforts were done." This finding is supported by Sochor's admission that he never called APD while he was at U.S.VETS and his only attempts to contact APD were the one unanswered phone call and postcard. The court concluded that these efforts were insufficient to meet his obligation to contact APD and ultimately found that he had violated the conditions of his probation.
¶9 Sochor points out that the "72 hour proviso was not given to him prior to being released." The trial court however noted that it used a "reasonable amount of time" standard, starting on January 27, when he was released from ADCRR and ending with his arrest on March 22, as opposed to the seventy-two-hour requirement in the reporting condition because it agreed with Sochor that the January 2021 implementation document "should've had a due date on it."
¶10 Sochor nonetheless maintains the trial court erred by finding there was "insufficient evidence . . . to conclude that he was unable to comply based on mental health problems." The court's finding was based on evidence that Sochor had been able to use multiple modes of transportation to travel from Tucson to Cochise County to Prescott. It also noted that he had used someone's phone to find the address for the Yavapai probation office in order to mail them a postcard informing them of his plans to go to U.S.VETS. The court concluded that these actions "took some thought" and weighed against his argument that his mental health impacted his ability to contact APD as required by his conditions of probation.
¶11 On appeal, Sochor argues that it is "plausible that he could be able to take a bus or write a postcard and still be suffering from his mental health disease." However, this argument amounts to a request that this court reweigh the evidence to determine its sufficiency; this we will not do. See State v. Guerra, 161 Ariz. 289, 293 (1989); see also State v. Sanchez, 19 Ariz.App. 253, 254 (1973) (revocation of probation is within the sound discretion of trial court).
¶12 Moreover, Sochor fails to connect how his mental health issues affected his ability to contact APD. He argues that the trial court's findings were "unrealistic" because he was expected to have the awareness, despite his "very significant" mental health issues, that he needed to continue trying to contact APD when he had no cell phone, was in quarantine, and it was unknown whether he was medicated. Sochor's testimony belies this argument. The reasons he provided for not continuing to try and make contact with APD were that he had lost the number and he was unaware of any phone at the facility other than in the office, which he had never asked anyone to use. At no point did he testify that his mental health issues impeded his ability to comply with the conditions of his probation. And in his closing argument, he conceded that "he was aware that he was on probation" and "did what he could" to contact APD.
¶13 Sochor seemingly argues that the conditions of his probation were met because his whereabouts were known to APD. However, he cites no authority, and we are aware of none, supporting his contention that APD's knowledge of his whereabouts in light of his previously diagnosed mental health condition changed his burden to contact APD under the conditions of his probation. Accordingly, the evidence presented at the hearing was sufficient to support the trial court's finding that Sochor had violated his probation.
Disposition
¶14 For the foregoing reasons we affirm the trial court's finding of a violation and its revocation of Sochor's probation.