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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JO DEAN MCDONALD, Appellant.

No. 1 CA-CR 19-0598 

Appeal from the Superior Court in Yavapai County

No. V1300CR82009-0017 

The Honorable Michael R. Bluff, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Michael O’Toole

Counsel for Appellee

Zickerman Law Office, Flagstaff

By Adam Zickerman

Counsel for Appellant

FILED 6-4-2020
STATE v. MCDONALD

Decision of the Court

2

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which Presiding 

Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.

G A S S, Judge:

¶1 Jo Dean McDonald appeals the superior court’s judgment 

finding he violated his probation for attempted sexual conduct with a 

minor under 15 years of age. After searching the entire record, McDonald’s 

counsel identified no arguable, non-frivolous question of law. McDonald’s 

counsel asked this court to search the record for fundamental error in 

accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 

104 Ariz. 297 (1969). After reviewing the entire record, this court finds no 

error. Accordingly, this court affirms McDonald’s convictions and 

sentences.

FACTUAL AND PROCEDURAL HISTORY 

¶2 This court views the facts in the light most favorable to 

sustaining the verdict and resolves all reasonable inferences against 

McDonald. See State v. Felix, 237 Ariz. 280, 283, ¶ 2 (App. 2015).

¶3 In January 2009, the grand jury indicted McDonald on 20 

felony charges—10 counts of knowingly engaging in sexual contact with a 

child under 14 years of age and 10 counts of molestation of a child under 14 

years of age. After McDonald moved to dismiss the indictment, the State 

returned to the grand jury and indicted McDonald on 8 counts of 

knowingly engaging in sexual contact with a child under 14 years of age. 

M.A., McDonald’s daughter, was the victim on all counts. M.A. alleged 

McDonald sexually abused her between 1993 and 1994.

¶4 In 2010, McDonald pled guilty to three counts of attempted 

sexual conduct with a minor under 15 years of age. All three counts were 

class 3 felonies and dangerous crimes against children. Under the plea 

agreement, McDonald agreed to lifetime probation on counts 1 and 2 and a 

prison sentence of 7-10 years on count 3. M.A. made a statement at the 

sentencing hearing, as did McDonald. The superior court sentenced 

McDonald to the presumptive term of 10 years imprisonment on count 3.

McDonald was given 472 days presentence incarceration credit. The 
STATE v. MCDONALD

Decision of the Court

3

sentencing order was subsequently amended to award M.A. $673.90 in 

restitution.

¶5 Following his sentencing in 2010, McDonald moved for postconviction relief, raising an ineffective assistance of counsel claim. After 

searching the record, counsel for McDonald was unable to find any claims 

for relief to raise in the post-conviction relief proceeding. McDonald was 

permitted to proceed in propria persona but failed to file a timely petition for 

post-conviction relief. McDonald’s Notice of Post-Conviction Relief was 

dismissed. McDonald was released from the Arizona Department of 

Corrections on July 31, 2017, and began the two terms of lifetime probation.

¶6 About a year after McDonald’s release, the Yavapai County 

Adult Probation Department petitioned the superior court to revoke his 

probation. The Probation Department requested revocation because 

McDonald was unsuccessfully discharged from mandatory counseling.

McDonald was found not to be amendable to counseling or treatment

because of his continued denial of, and failure to accept responsibility for,

his offenses. The superior court revoked McDonald’s probation and issued 

a warrant for his arrest.

¶7 The superior court initially found McDonald to be 

incompetent but likely to be restorable within 15 months. The superior 

court ordered McDonald to be committed to a restoration to competency 

program. In May 2019, McDonald was deemed to be mentally competent to 

proceed to trial.

¶8 The superior court then conducted a probation violation 

hearing. At the hearing, Scott Poole, an adult probation officer, testified 

McDonald was discharged unsuccessfully from treatment in violation of his 

probation. McDonald did not present any evidence. The superior court 

found McDonald violated his probation because he did not actively 

participate in sex offender treatment, resulting in his unsuccessful 

discharge. The superior court scheduled a sentencing hearing.

¶9 After McDonald briefly spoke at the sentencing hearing, the 

superior court sentenced him to a slightly mitigated term of 8 years in 

prison on count 1 and gave him credit for 376 days for time served. The 

superior court reinstated McDonald on lifetime probation on count 2 upon 

his release under count 1.
STATE v. MCDONALD

Decision of the Court

4

ANALYSIS

¶10 This court has read and considered counsel’s brief and fully 

reviewed the record for reversible error, finding none. See Leon, 104 Ariz. at 

300; State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011). 

¶11 All proceedings were conducted in compliance with the 

Arizona Rules of Criminal Procedure. The record shows McDonald was 

present for, and represented by counsel at, all critical stages of the 

proceedings. See State v. Bohn, 116 Ariz. 500, 503 (1977); State v. Conner, 163 

Ariz. 97, 104 (1990). McDonald was aware of the conditions of his probation, 

which he willfully violated. See State v. Alve, 174 Ariz. 504, 506 (App. 1992). 

The superior court acted properly when it tried McDonald only after he was 

restored to competency in a period shorter than 15 months. See State v. Silva, 

222 Ariz. 457, 462, ¶¶ 25-26 (App. 2009). Additionally, McDonald was

present and given the opportunity to speak at sentencing, the sentence 

imposed on count 1 was within the statutory guidelines, and the superior 

court acted within its discretion to reinstate McDonald on lifetime 

probation under count 2. See Ariz. R. Crim. P. 26.9, 26.10(b)(1); A.R.S. §§ 13-

1001, 13-1405, 13-701, 13-705.

CONCLUSION

¶12 McDonald’s convictions and sentences are affirmed.

¶13 Defense counsel’s obligations pertaining to McDonald’s 

representation in this appeal have ended. Defense counsel need only inform 

McDonald of the outcome of this appeal and his future options, unless, 

upon review, counsel finds an issue appropriate for submission to our 

supreme court by petition for review. See State v. Shattuck, 140 Ariz. 582, 

584-85 (1984).
STATE v. MCDONALD

Decision of the Court

5

¶14 McDonald has thirty days from the date of this decision to 

proceed, if he wishes, with an in propia persona petition for review. See Ariz. 

R. Crim. P. 31.21. This court, on its own motion, also grants McDonald thirty 

days from the date of this decision to file an in propia persona motion for 

reconsideration. See Ariz. R. Crim. P. 31.20.