STATE v. KONKUS

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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 STATE OF ARIZONA, Appellee, v. GEORGE EDWARD KONKUS, Appellant. ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 07/17/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0530 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2001-010653 The Honorable Jeffrey A. Rueter, Judge Pro Tempore AFFIRMED Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant George Edward Konkus has advised us that, after searching the entire record, she has been unable to find any arguable questions of law, and has filed a brief requesting us to conduct an Anders review of the record. Defendant was given the opportunity to file a supplemental brief but has not filed one. FACTS 1 ¶2 Defendant pled guilty to kidnapping, a class 2 felony, and aggravated assault, a class 4 felony, in February 2002. In accordance with the plea agreement, he was sentenced to three years in prison, given credit for 171 days of presentence incarceration, and ordered to complete seven years of probation, to begin upon his release from prison. After Defendant was released from prison, and based on the recommendation of his probation officer ( PO ), the court modified the probation terms and added sex offender terms. 2 ¶3 Defendant refused to acknowledge the July 2004 amended probation terms by signing the form. to revoke his probation, Defendant At the subsequent hearing admitted to possessing deadly weapon in violation of his probation terms. 1 a The court We review the facts in the light most favorable to sustaining the conviction[s] and [resolve] all reasonable inferences . . . against the defendant. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989) (citation omitted). 2 The PO based her recommendation on Defendant s 1980 conviction in Texas for sexual abuse of a minor. 2 reinstated Defendant on probation in August 2004, and added that Defendant had to register as a sex offender if required by law, participate and cooperate in counseling or assistance as directed by the Adult Probation Department ( APD ), and abide by sex offender special conditions. ¶4 Defendant sought to remove the sex offender conditions from his probation terms. The court held a ultimately reaffirmed the sex offender conditions. however, did not challenge the ruling by appeal hearing and Defendant, or special action. ¶5 A petition to revoke Defendant s probation was filed in March 2011 based on allegations that he had violated the special sex offender terms. After a hearing, the court found that Defendant had failed to successfully participate in sex offender counseling and abide by other special conditions. Defendant s probation was revoked and he was sentenced to five years in prison. to Article Arizona 6, Revised We have jurisdiction over this appeal pursuant Section 9, Statutes of the ( A.R.S. ) Arizona Constitution, and sections 12-120.21(A)(1), hearing, the 13-4031, and -4033(A) (West 2012). DISCUSSION ¶6 At a probation revocation State must prove a probation violation by a preponderance of the evidence. Ariz. R. Crim. P. 27.8(b)(3). We will not disturb the trial 3 court s finding so long as the court did not abuse its discretion. See State v. Stotts, 144 Ariz. 72, 79, 695 P.2d 1110, (1985) 1117 (citations omitted) ( An appeals court reviewing a revocation of probation proceeding will not reverse any finding of the trier of fact unless that finding is arbitrary and unsupported by any theory of the evidence. ). ¶7 Here, the State presented evidence that Defendant had been referred to every counseling program under contract with the APD. any The State also demonstrated that he did not complete program; rejected or Defendant had discharged, counseling program. declined before to participate, successfully or was completing any Thus, based on the evidence, the court did not err when it concluded that Defendant failed to satisfy the sex offender treatment term, and therefore had violated his probation. 3 ¶8 We have read and considered counsel s brief and have searched the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. We find none. See Leon, 104 The record, as presented, reveals that all of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, that Defendant was represented by counsel 3 at all stages of the Because we find that the court did not err by determining that Defendant did not complete sex offender counseling, we need not address whether the court erred by finding that Defendant also had violated the probation term that required him to wear undergarments while in any place where others may see him. 4 proceedings, and that the sentences imposed were within the statutory limits. CONCLUSION ¶9 Accordingly, Defendant had subsequent violated sentence. we affirm the terms After this the of his determination probation, decision has been that and his filed, counsel s obligation to represent Defendant in this appeal has ended. Counsel must only inform Defendant of the status of the appeal and Defendant s future options, unless counsel identifies an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 585, 684 P.2d 154, 157 (1984). Defendant can, if desired, file a motion for reconsideration or petition for review pursuant to the Arizona Rules of Criminal Procedure. /s/ __________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ _____________________________ ANN A. SCOTT TIMMER, Judge /s/ _____________________________ ANDREW W. GOULD, Judge 5

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