State v. Burress

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THOMAS BURRESS, Appellant.

No. 1 CA-CR 25-0160
FILED 05-07-2026

Appeal from the Superior Court in Navajo County
No. S0900CR202101484
The Honorable Michael S. Penrod, Judge Pro Tempore

AFFIRMED

COUNSEL

Navajo County Attorney’s Office, Holbrook
By Myles A. Braccio
Counsel for Appellee

Coolidge Law Firm, PLLC, Chandler
By Jennifer Booth
Counsel for Appellant

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Michael S. Catlett and Judge Jennifer M. Perkins joined.

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Decision of the Court

P A T O N, Judge:

¶1 Thomas Burress appeals his probation revocation and the
resulting sentence. Burress’s counsel advised us that after thoroughly
reviewing the record, she found no arguable, non-frivolous questions of
law and asks us to conduct an Anders review of the record. See Anders v.
California, 386 U.S. 738 (1967); State v. Leon, 104 Ariz. 297 (1969). Burress
filed a supplemental brief raising issues we address in this decision. We
have reviewed the record and Buress’s arguments and find no reversible
error. We therefore affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
conviction and resolve all reasonable inferences against Burress. See State
v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).

¶3 In February 2022, Burress, a former juvenile detention officer,
pled guilty to three counts of unlawful sexual conduct with a person in a
correctional facility, a class three felony. The superior court sentenced him
to 263 days’ incarceration with credit for time served, fifteen years of
supervised probation to begin on June 9, 2022, 60 hours of community
service, and lifetime sex offender registration. One of his probation
conditions directed him to “[n]ot initiate, establish, reside, or maintain
contact with any male or female child under the age of 18 nor attempt to do
so except under circumstances approved in advance and in writing by the
court” except he “can have contact with minor son, upon approval from
counselor.” Burress apparently received permission to have contact with
his son from his sex offender counselor on May 24, 2023.

¶4 In February 2024, Burress moved to modify his probation
terms to allow him to have contact with his newborn child and reside in the
same house as the child and the child’s mother (also his wife). Two months
later, the court granted the motion and modified the probation condition
language from “son” to allow contact with his minor “children” and the
ability to live with his newborn child and wife upon approval from his
counselor.

¶5 In October 2024, Burress was separately arraigned in Navajo
County Superior Court on two new criminal charges unrelated to his
probation case.

¶6 On January 26, 2025, a Coconino County probation officer
who knew Burress from their prior employment together, saw Burress
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holding his daughter at church. The officer reported what she saw to
Burress’s supervising probation officer. On January 30, 2025, while driving
by Burress’s wife’s residence, the supervising officer noticed Burress’s
pickup truck in front of her home and saw the garage door was closed. The
officer drove around the neighborhood looking for Burress but did not see
him, and upon returning to the home about thirty minutes later, saw the
garage door was open and Burress unloading wood from his truck. He
initiated contact with Burress in the front yard. During the conversation,
Burress said his wife was inside and that he believed his daughter was
inside sleeping. Burress admitted to passing his daughter off at church
during the previously discussed incident and that it was a mistake because
he knew he could not have contact with her. Upon entering the residence,
the officer confirmed Burress’s wife was inside and Burress’s daughter was
asleep inside.

¶7 The probation department petitioned to revoke Burress’s
probation, alleging Burress violated his probation by failing to attend sex
offender treatment in March 2024 and having “unapproved contact” with
his minor daughter on January 26 and January 30, 2025. After a revocation
hearing at which both probation officers testified, the court found the State
met its burden of proving by a preponderance of the evidence that Burress
violated his probation by having unauthorized contact with his minor
daughter on both dates.

¶8 At sentencing, the court imposed three concurrent aggravated
sentences of seven years for his probation violation. It originally credited
him with 406 days for time served but later corrected this number and gave
him 385 days for time served.

¶9 Burress timely appealed. 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), 13-4033(A)(1).

DISCUSSION

¶10 Burress raises several issues in his supplemental brief. He
first contends that a statement made by the judge at his arraignment
hearing for his other criminal charges modified his probation terms in this
proceeding such that he did not need prior counselor approval to have
contact with his minor daughter. He argues the court failed to provide him
with necessary accommodations to ensure he could understand the terms
of his probation. He contends the prosecutor committed ethical violations
by failing to challenge the court’s oral pronouncement in the other criminal

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proceeding that Burress contends modified his probation terms in this case,
and then later arguing it had no bearing on the probation terms in this case.
Finally, he argues the superior court improperly delegated a judicial duty
to a non-judicial officer when it included the probation condition that his
sex offender counselor should decide whether it was safe for Burress to
have contact with his children.

¶11 During his arraignment hearing in the other criminal case, the
judge stated Burress could have “[n]o contact with minors under 18 except
[his] own children” as a condition of his release in that case. Burress now
contends, as he did at his probation revocation hearing in this matter, that
that oral pronouncement modified his original probation terms in this case
by removing the requirement that he get prior approval to contact his
children from his counselor. He therefore contends that he did not violate
his probation by having contact with his minor daughter on the two
January dates.

¶12 Not so. Burress made the same argument during his
probation revocation hearing in this proceeding, which the superior court
rejected, noting that the court’s statement in the other matter had no bearing
on his probation terms in this matter. We agree. A subsequent order in a
separate criminal proceeding regarding contact with minor children had no
bearing on Buress’s original probation terms in this case. See Ariz. R. Crim.
P. 7.3(d) (“The court may impose as a condition of release one or more of
the following conditions . . . .”).

¶13 Arizona Rule of Criminal Procedure (“Rule”) 27.1(b) states
that only “[t]he sentencing court may impose conditions on a probationer.”
And Rule 27.3(b) says the court—referring to the sentencing court already
referenced in Rule 27.1—“may modify . . . any condition . . . of probation.”
The court overseeing the arraignment hearing was different from the
sentencing court that imposed Burress’s probation in this case. Therefore,
even if that court attempted to modify his probation here, as Burress
contends, it had no authority to do so.

¶14 Burress’s alleged confusion is also belied by the record, which
indicates he fully understood that he could not have unauthorized contact
with his daughter even after the other proceeding. Burress repeatedly
asked his supervising officer and counselors to approve contact with his
minor daughter and continued to do so after the allegedly conflicting
statement in the other proceeding.

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¶15 To the extent Burress’s alleged confusion stemmed from the
court’s failure to provide disability accommodations as he now contends,
nothing in the record shows Burress sought additional accommodations or
clarification from the superior court. He specifically argues the court failed
to provide “[c]lear, reconciled explanations of [his] probation terms;
[w]ritten clarification resolving conflicting orders; [and] [c]oordination
between cases to prevent confusion.” But to the extent Burress or his
counsel (who represented him in the instant case as well as at the
arraignment hearing in the other case) were confused, Burress could have
sought clarification or accommodations from the court prior to having
unauthorized contact with his minor daughter. And, as also previously
discussed, his failure to understand claim is undercut by his repeated
efforts to seek approval to contact his daughter even after the court’s
statement in the other case. Had he been truly confused he would have
ceased making those requests.

¶16 Burress next argues the prosecutor violated Arizona Rule of
Professional Conduct 3.8, which requires the prosecutor to “make timely
disclosure to the defense of all . . . information known to the prosecutor that
tends to negate the guilt of the accused,” by failing to challenge the release
condition during the unrelated arraignment hearing, and then later arguing
that it had no impact on Burress’s original probation terms. See Ariz. R.
Sup. Ct. 42, ER 3.8(d).

¶17 For the reasons discussed above, the oral pronouncement in
Burress’s other criminal case had no bearing on Burress’s probation terms
or whether he violated those terms as part of this proceeding. As
previously mentioned, after the arraignment hearing, Burress had multiple
conversations with his probation officer about wanting to see his daughter
and was well informed that he did not yet have the necessary approval.
Therefore, this argument that the prosecution attempted to withhold
information from the defense is without merit.

¶18 Burress also contends the superior court unlawfully
delegated the decision of whether he could contact his minor children to his
sex offender counselor. This argument, however, misapplies the rule
against delegation of judicial authority in Arizona. “[T]he [superior court]
must be given substantial latitude in [probation] in light of the uncertainty
as to how rehabilitation is actually accomplished.” State v. Donovan, 116
Ariz. 209, 212 (App. 1977); see also State v. Nickerson, 164 Ariz. 121, 122-23
(App. 1990) (upholding a probation condition requiring the defendant to
get prior written consent from his probation officer to have personal contact
with his wife).

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¶19 The sentencing court was permitted to impose probation
conditions that promote rehabilitation. See Ariz. R. Crim. P. 27.1(b)
(permitting the sentencing court to impose conditions on a probationer that
promote rehabilitation and protect any victim); see also United States v.
Fellows, 157 F.3d 1197, 1204 (9th Cir. 1998) (upholding the defendant’s
probation condition that allowed his therapist to impose lifestyle
restrictions or treatment requirements on the defendant). It follows then
that the sentencing court here did not improperly delegate the question of
whether Burress could have contact with his minor daughter to his sex
offender counselor.

¶20 Having reviewed and considered the briefs and searched the
entire record for reversible error, we find none. See State v. Clark, 196 Ariz.
530, 537, ¶ 30 (App. 1999) (instructing the court to review the record for
reversible error).

¶21 The record contains sufficient evidence from which the
superior court could determine, by a preponderance of the evidence, that
Burress violated the terms of his probation by having unauthorized contact
with his minor daughter. Ariz. R. Crim. P. 27.8(b)(3) (“A [probation]
violation must be established by a preponderance of the evidence.”). This
evidence included testimony describing Burress holding his daughter at
church and an audio recording in which Burress indicated to his
supervising probation officer that the reported incident at church was a
“mistake” and “it was stupid of [him].” It also included testimony that
Burress’s probation officer saw Burress at his wife’s residence, watched him
exit the garage that had previously been closed, and say his daughter was
sleeping inside the house—a detail later confirmed by Burress’s wife.

¶22 The court, in its ruling, noted the key piece of evidence in
finding Burress had contact with his daughter while at his wife’s residence,
was that Burress knew specific details about the daughter sleeping inside.
In sum, the court found the fact that because Burress was at his wife’s
residence and had details about the daughter, Burress again had
unauthorized contact with his daughter. It was therefore established by a
preponderance of evidence that he engaged in unauthorized contact that
day as well.

¶23 Further, the record demonstrates that (1) all proceedings
complied with the Arizona Rules of Criminal Procedure, (2) Burress was
represented by counsel at all stages of the proceeding, and (3) Burress was
present at all critical stages. State v. Conner, 163 Ariz. 97, 104 (1990) (right

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STATE v. BURRESS
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to counsel); State v. Bohm, 116 Ariz. 500, 503 (1997) (right to be present at all
critical stages).

¶24 Finally, the court’s imposition of an aggravated sentence did
not violate Arizona sentencing guidelines or present any Blakely issues.
Blakely v. Washington, 542 U.S. 296 (2004). The concurrent aggravated seven-
year sentences complied with Sections 13-701(C) and 13-702(D) for a class 3
felony because the court correctly found multiple aggravating factors. See
A.R.S. § 13-701(C) (“The . . . maximum term . . . may be imposed only if one
or more circumstances alleged to be in aggravation are found to be true . . .
.”); A.R.S. § 13-702(D) (the maximum sentence for a class 3 felony is seven
years). Also, as part of his plea, Burress consented to “judicial fact-finding
by preponderance of the evidence as to any aspect or enhancement of
sentence.” The superior court stated all aggravating and mitigating factors
on the record and each factor was sufficiently supported by the record.
Blakely, 542 U.S. at 310 (“When a defendant pleads guilty, the State is free
to seek judicial sentence enhancements so long as the defendant . . . consents
to judicial factfinding.”).

CONCLUSION

¶25 We have reviewed the entire record and Burress’s
supplemental brief for arguable issues of law and find none. We thus affirm
Burress’s probation revocation and sentence. See Leon, 104 Ariz. at 300-01.

¶26 Upon filing of this decision, defense counsel must only inform
Burress of the outcome of this appeal and his future options. Defense
counsel has no further obligations, unless, upon review, counsel finds “an
issue appropriate for submission” to the Arizona Supreme Court by
petition for review. See State v. Shattuck, 140 Ariz. 583, 584-85 (1984).
Burress will have thirty days from the date of this decision to proceed, if he
desires, with a pro se motion for reconsideration or petition for review.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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