In re Fabian C.

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NOTICE: 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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE IN RE FABIAN C. ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 02-23-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-JV 09-0204 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JV164058 The Honorable Cathy M. Holt, Judge AFFIRMED Andrew P. Thomas, Maricopa County Attorney by Jeffrey W. Trudgian, Deputy County Attorney Appeals Bureau Chief Attorneys for Appellee The Law Offices of Kevin Breger, PLLC By Kevin Breger Attorneys for Appellant B A R K E R, Judge Phoenix Scottsdale ¶1 Fabian C. appeals from his disposition order committing him to the Arizona Department of Juvenile Corrections ( ADJC ) until his eighteenth register as sex offender a birthday until the and ordering age of him to twenty-five. Fabian s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and Maricopa County Juvenile Action No. JV-117258, 163 Ariz. 484, 486, 788 P.2d 1235, 1237 (App. 1989), finding no searching the record. arguable grounds for appeal after This court s obligation under Anders is to search the record for fundamental error. 386 U.S. at 744. Having done so, we affirm. Facts and Procedural History ¶2 On October 1, 2009, Fabian entered into a plea agreement that was accepted by the juvenile court in which he admitted to the following three charges: 1) threatening or intimidating, a class one misdemeanor; 2) solicitation of sexual contact with misdemeanor; a minor and 3) over the touching age of the with provoke, a class three misdemeanor. fifteen, intent a to class two injure or On October 29, 2009, after considering less restrictive alternatives, the juvenile court committed Fabian to ADJC until his eighteenth birthday and ordered him to register as a sex offender until age twenty-five with full community notification. pattern of sexually offending 2 The court considered Fabian s and that the numerous opportunities for outpatient and inpatient treatment were not successful. ¶3 This timely appeal followed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, Arizona Revised Statutes sections 12-120.21(A)(1) (2003) and 8235(A) (2007), and Arizona Rule of Procedure for the Juvenile Court 103(A). Discussion ¶4 We have read and considered the entire record and have found no fundamental error. Fabian was present and represented by counsel at all proceedings. The juvenile court informed Fabian of his constitutional rights, and the record indicates Fabian knowingly, voluntarily, and intelligently waived his rights pursuant to Arizona Rule of Procedure for the Juvenile Court 28(C)(5) when he entered an admission pursuant to the plea agreement. Fabian was advised in open court of the nature of the charges and the nature of the possible disposition. Fabian was under eighteen years of age at the time of the final order and was within the jurisdiction of the juvenile court. ¶5 determine It is the adjudication of within the disposition delinquency juvenile of a and, court s juvenile absent discretion to following an clear discretion, we will not disturb that disposition. abuse In re Sean M., 189 Ariz. 323, 324, 942 P.2d 482, 483 (App. 1997). 3 of Fabian alleges the juvenile court abused its discretion by committing him to ADJC. However, we find the court did not abuse its discretion because of Fabian s sexual offense history and his pattern of re-offending even after treatment. 1 See In re Niky R., 85 203 Ariz. 387, 391, ¶ 17, 55 P.3d 81, (App. 2002) (holding commitment to ADJC not an abuse of court s discretion where commitment rehabilitation). constitutes Fabian also a final argues opportunity the court s for order to register as a sex offender with community notification until age twenty-five was an abuse of discretion. The juvenile court may require a juvenile to register as a sex offender if he has been adjudicated 3821(A). delinquent of an act specified in A.R.S. § 13- In re Sean M., 189 Ariz. at 324, 942 P.2d at 483. Fabian falls within this restriction; therefore, the juvenile court did not abuse its discretion in ordering Fabian to register as a sex offender with community notification. 1 The charges in this matter involved Fabian encouraging or requesting sexual conduct with S.H. and touching S.H. with the intent to insult or provoke by placing his genitals and hands on S.H. without S.H. s consent. Fabian s first offense involved the attempted molestation of a child. He violated his probation twice and was ordered to secure care for nine months. The current offenses occurred while he was in sex offender treatment. 4 Conclusion ¶6 The disposition by the juvenile court is affirmed. Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984), the obligations of Fabian s counsel in this appeal have ended subject to the following. Counsel need do no more than inform Fabian of the status of the appeal and of his future options, appropriate for unless counsel s submission petition for review. to the review Arizona reveals Supreme an issue Court See Ariz. R.P. Juv. Ct. 107(A), (J). /s/ _______________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ____________________________________ PATRICIA K. NORRIS, Presiding Judge /s/ ___________________________________ PETER B. SWANN, Judge 5 by

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