State v. Davis

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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.Sup.Ct. 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. FREDERICK LEE DAVIS, II, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 09/07/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CR 09-0736 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. S1400CR200701222 The Honorable John P. Plante, Judge AFFIRMED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Paul J. Mattern Attorney for Appellant Phoenix I R V I N E, Presiding Judge ¶1 This appeal is timely filed in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Frederick Lee Davis, II, asks this court to search the record for fundamental error. Davis was given an opportunity to file a supplemental brief in propria persona. He has not done so. After reviewing the record, we affirm his probation revocation and sentences for two counts of stalking involving domestic violence, class 3 felonies in violation of Arizona Revised Statutes section 13-2923(A)(2) (2010). 1 FACTS AND PROCEDURAL HISTORY ¶2 We view the facts in the light most favorable to sustaining the trial courts judgment and resolve all inferences against Davis. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). From March to September 2007, Davis made numerous threats to harm the victim and her family during a contentious divorce. As a result of threats he made to the victim at work, she lost her job. ¶3 On September 19, 2007, a grand jury indicted Davis on twenty-five aggravated counts assault involving (Count domestic 1, a class violence, 6 felony); including criminal trespass (Count 2, a class 6 felony); robbery (Count 3, a class 4 felony); ten counts of stalking (Counts 4, 8 and 10, class 5 felonies; and Counts 9, 12, 15, 16, 18, 20 and 24, class 3 felonies); and twelve counts of aggravated harassment (Count 5, 1 We cite to the current version of statutes since no revisions material to this case have occurred. 2 a class 6 felony; and Counts 6, 7, 11, 13, 14, 17, 19, 21, 22, 23, 25, class 5 felonies). ¶4 On June 11, 2008, Davis pled guilty to Counts 9 and 15 for making death threats to the victim at work on June 18 and 26, 2007, respectively. In exchange for dismissal of the remaining counts, Davis agreed to testify as a witness in an unrelated homicide case and to delay sentencing until afterward. Due to unexpected remained delays incarcerated in longer the other than case, anticipated however, and Davis moved to withdraw the plea agreement. At a hearing on the matter, Davis agreed to proceed with sentencing instead. ¶5 of On March 25, 2009, Davis received a suspended sentence five years intensive probation. The trial court ordered Davis to report to the adult probation department ( APD ) by five p.m. the next day. Term 3 of his probation also required him to report to APD within seventy-two hours, and Term 4 required him to get APD s prior approval before moving. Davis never reported to his parole officer, and he moved to petition to California. ¶6 On March revoke Davis s 30, probation 2009, the and for State a filed bench a warrant. Davis was arrested in San Francisco on June 8, and extradited to Yuma on July 8, 2009. At the revocation hearing, Davis admitted he knew he was to report to APD on March 26 and called, explaining to 3 the secretary, that he could not come in. His probation officer testified that she never received a message from Davis and that he never reported to APD. She also said APD received numerous calls from concerned citizens who saw Davis at various bars across town from March 26 to 27. The trial court found by a preponderance of the evidence that Davis violated his probation. ¶7 On September 11, concurrent, slightly aggravated imprisonment for both 2009, counts. the trial terms Davis was presentence incarceration credit. 2 He was victim $30,000 in restitution for lost court imposed of five years given 601 days of ordered to pay the wages and any unpaid balance of the $1654.33 for his extradition. Davis was sentenced in compliance with his constitutional rights and Rule 26 of the Arizona Rules of Criminal Procedure. DISCUSSION ¶8 We review Davis s probation revocation and sentences for fundamental error. See State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). Counsel for Davis has advised this court that after a diligent search of the entire record, he has 2 The trial court initially awarded 706 days of presentence incarceration. Although the trial court subsequently adjusted it to 601 days, it appears that Davis should have received less. Since the State has not filed a cross-appeal and the miscalculation favors the appellant, we will not correct it. See State v. Dawson, 164 Ariz. 278, 281-82, 792 P.2d 741, 744-45 (1990). 4 found no arguable question of law. The court has read and considered counsel s brief and fully reviewed the record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So far as the record reveals, Davis was represented by counsel at all stages of the proceedings, and the sentence imposed was within the statutory limits. We decline to order briefing. We affirm Davis s probation revocation and sentences. ¶9 Upon the filing of this decision, defense counsel shall inform Davis of the status of his appeal and of 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. 582, 584-85, 684 P.2d 154, 156-57 (1984). Davis shall have thirty days from the date of this decision to proceed, if reconsideration he or desires, with petition for a pro review. per On motion the for court s own motion, we extend the time for Davis to file a pro per motion for reconsideration to thirty decision. 5 days from the date of this CONCLUSION ¶10 We affirm. ______/s/_________________________ PATRICK IRVINE, Presiding Judge CONCURRING: _____/s/_____________________________ MICHAEL J. BROWN, Judge ____/s/______________________________ DONN KESSLER, Judge 6

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