STATE v. MORGAN

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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 DIVISION ONE FILED: 10/25/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. JAMES MICHAEL MORGAN, Appellant. ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 11-0891 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR1989-005389 The Honorable Jeffrey A. Rueter, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Maricopa County Public Defender s Office By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix G E M M I L L, Judge ¶1 2011 James probation Michael Morgan revocation and appeals the from resulting his November prison 28, sentence; Morgan was serving probation in connection with Count 3 of his 1990 attempted child molestation conviction. Morgan s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record and found no arguable question of law and requesting that this court examine the record for reversible error. Morgan was afforded the opportunity to file a pro se supplemental brief but did not do so. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 We therefrom view the in the light convictions. facts and most all reasonable favorable to inferences sustaining the State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). ¶3 Since 1990, Morgan has sentences and time on probation. period, Morgan has attended variously served prison During that twenty-two year numerous hearings, sought post- conviction relief, and been assigned several probation officers. Because Morgan s record is convoluted and stretches across three decades, extensive review is necessary. ¶4 On January 23, 1990, Morgan was convicted on three counts of attempted child molestation. Initially, Morgan was sentenced to eight years imprisonment on Count 1, followed by intensive life-time probation thereafter on both Count 2 and 2 Count 3. In 1997, Morgan was released completing his Count 1 prison term. from prison after Over the next six years, Morgan violated probation at least twice, including his failure to obtain proper permission before associating with a woman with two minor daughters. As a result, Morgan s Count 2 probation was revoked and he was sentenced to a second, mitigated ten-year prison term. He began serving that Count 2 term in March of 2003. ¶5 On February 14, 2011, Morgan completed his Count 2 prison term. He was then required to comply with life-time probation stemming from his last remaining count, Count 3. On September 8, 2011, however, Morgan was arrested during a routine visit with his parole officer. discovered that Morgan During that meeting, the officer seemingly violated two terms of his probation: Morgan (1) knowingly associated with a person having a criminal possessed record without prior approval photographs sexually-suggestive written of and (2) children, similarly-aged to his 1989 victims, as well as children s toys and books. ¶6 During October and November of 2011, an evidentiary hearing was conducted on four separate days to receive evidence regarding whether Morgan s Count 3 probation should be revoked. The State called three of Morgan s parole officers to testify as to their experiences in supervising him. 3 At the conclusion of the hearing on November 14, 2011, the court found Morgan in violation of certain terms of his probation disposition hearing for November 28, 2011. hearing, the revocation of and scheduled a At the disposition court decided that Morgan s conduct his probation and imposition of warranted prison time. Morgan was then sentenced to a third, eight-year prison term. Morgan timely appealed. DISCUSSION ¶7 Having considered defense counsel s brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find none. The evidence presented supports the revocation of probation and the prison sentence imposed falls within the range permitted by law. As far as the record reveals, Morgan was represented by counsel at all stages of the proceedings, and these proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶8 684 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, P.2d 154, 156-57 appeal have ended. (1984), counsel s obligations in this Counsel need do no more than inform Morgan of the disposition 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. Morgan has thirty days from the date of this decision in which to proceed, 4 if he desires, with a pro se motion for reconsideration or petition for review. CONCLUSION ¶9 The probation revocation and resulting prison sentence are affirmed. _____/s/__________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: ___/s/___________________________ PETER B. SWANN, Judge ___/s/___________________________ ANDREW W. GOULD, Judge 5

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