State v. Gray

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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. ROBERT DAVID GRAY, Appellant. No. DIVISION ONE FILED: 03/09/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0687 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2001-095339 The Honorable Christine E. Mulleneaux, Judge Pro Tempore AFFIRMED Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James Haas, Maricopa County Public Defender by Spencer D. Heffel, Deputy Public Defender Attorneys for Appellant Phoenix H A L L, Judge ¶1 Robert David Gray appeals from the revocation of his probation and the sentence imposed. ¶2 Defendant=s appellate counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that, after a diligent search of the record, he was unable to find any arguable grounds for reversal. This court granted defendant an opportunity to file a supplemental brief, which he has not done. See State v. Clark, 196 Ariz. 530, 537, & 30, 2 P.3d 89, 96 (App. 1999). ¶3 We review for fundamental error, error that goes to the foundation of a case or takes from the defendant a right essential to his defense. See State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). We view the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, 182, & 2, 68 P.3d 407, 408 (2003). ¶4 Finding no reversible error, we affirm. Defendant was charged by indictment with one count of sexual conduct with a minor, a class two felony and dangerous crime against children, in violation of Arizona Revised Statutes (A.R.S.) section 13-1405(A) (Supp. 2008). Defendant pled guilty to attempted sexual conduct with a minor, a class three felony and dangerous crime against children in the second degree. December 6, 2001, the trial court 2 suspended sentencing On and placed defendant on lifetime probation with a one-year term of incarceration in county jail as a condition of probation. ¶5 On July 16, 2009, defendant's probation officer filed a petition to revoke probation alleging defendant violated his probation by failing to: (1) maintain employment; (2) participate and cooperate in counseling, programs of assistance, sex offender treatment; and (3) actively participate and remain in sex offender treatment at Family Transition. ¶6 At the witness violation hearing, defendant's probation officer testified she reviewed the terms of probation with defendant. She informed defendant that he was to maintain full-time employment or apply for five to seven jobs per day and keep a log of where he applied. The probation officer and defendant's surveillance officer both testified that defendant was not employed except for a remodeling job that he worked five hours a week. They also testified that defendant never presented a log of jobs he applied for. ¶7 Defendant's probation officer also testified that defendant was discharged from Family Transitions for failure to participate. She also stated that he was thereafter referred to Psychological and Consulting Services (PCS). However, he was not accepted into PCS's program because he was found not to be amenable for treatment. 3 ¶8 After the hearing, the trial court found defendant had violated his probation. probation The trial and reinstated court also defendant placed on defendant lifetime on house arrest until seen by his adult probation officer. ¶9 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. See Leon, 104 We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was given an opportunity to speak before sentencing, and the sentence imposed was within statutory limits. Furthermore, based on our review of the record, there was sufficient evidence to find that defendant violated his probation. ¶10 After obligations appeal have the pertaining ended. filing to of this defendant=s Counsel need do decision, counsel=s representation no more than in this inform defendant of the status of the appeal and his future options, unless counsel=s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 15657 (1984). Defendant has thirty days from the date of this 4 decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. Accordingly, defendant's conviction and sentence are affirmed. _/s/______________________________ PHILIP HALL, Judge CONCURRING: /s/ SHELDON H. WEISBERG, Presiding Judge . /s/ JOHN C. GEMMILL, Judge . 5

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