State v. Graham ( 2017 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
JEFF DAVID GRAHAM, Appellant.
No. 1 CA-CR 16-0642
FILED 5-25-2017
Appeal from the Superior Court in Mohave County
No. S8015CR201400567
The Honorable Lee Frank Jantzen, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. GRAHAM
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.
J O N E S, Judge:
¶1 Jeff Graham appeals the revocation of his probation imposed
following his conviction for one count of fraudulent schemes and artifices.
After searching the entire record, Graham’s defense counsel identified no
arguable question of law that is not frivolous. Therefore, in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), defense counsel asked this Court to search the record for
fundamental error. Graham was granted the opportunity to file a
supplemental brief in propria persona but did not do so. After reviewing the
entire record, we find no error. Accordingly, Graham’s sentence is
affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 In July 2014, Graham pleaded guilty to one count of
fraudulent schemes and artifices, a class two felony. The following month,
the trial court suspended imposition of sentence and placed Graham on
supervised probation for a period of four years. The conditions of
Graham’s probation required he refrain from using illegal drugs and
alcohol, report to the probation department as directed, and submit to drug
and alcohol testing. In September 2015, with Graham’s consent, his
probation was modified to require he be screened for and, if appropriate,
participate in the drug court program.
¶3 In November 2015, the probation department petitioned to
revoke Graham’s probation. At the August 2016 contested hearing,
Graham’s probation officer testified and the State presented documents
evidencing the terms and conditions of his probation and the purported
violations. Graham did not testify. At the conclusion of the hearing, the
trial court found Graham had violated the conditions of his probation on at
least seven occasions by: (1) failing to comply with a written directive to
participate in substance abuse counseling; (2) failing to submit to drug and
alcohol testing on September 16 and 30, October 9 and 19, and November
2, 2015; and (3) using methamphetamine.
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STATE v. GRAHAM
Decision of the Court
¶4 At disposition, the trial court revoked Graham’s probation
and sentenced him as a non-dangerous, non-repetitive offender to five
years’ imprisonment. Graham was also given credit for 226 days of
presentence incarceration. Graham timely appealed, and this Court has
jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-
120.21(A)(1),1 13-4031, and -4033(A)(3).
DISCUSSION
¶5 Our review reveals no fundamental error. See Leon, 104 Ariz.
at 300 (“An exhaustive search of the record has failed to produce any
prejudicial error.”). The record contains sufficient evidence upon which the
trial court could find the State had proved by a preponderance of the
evidence that Graham violated his probation. See Ariz. R. Crim. P.
27.8(b)(3); State v. Moore, 125 Ariz. 305, 306 (1980) (“The conclusion of the
trial court will be upheld unless it is arbitrary or unsupported by any theory
of evidence.”) (citing State v. LeMatty, 121 Ariz. 333, 336 (1979)). The court
acted within its discretion by revoking Graham’s probation and sentencing
him to a term of imprisonment. See A.R.S. § 13-901(C) (“[I]f the defendant
. . . violates a condition, [the court] may revoke probation in accordance
with the rules of criminal procedure at any time before the expiration or
termination of the period of probation.”). And the sentence imposed was
within the range authorized by law. See A.R.S. § 13-702(D).
CONCLUSION
¶6 Graham’s sentence is affirmed.
¶7 Defense counsel’s obligations pertaining to Graham’s
representation in this appeal have ended. Defense counsel need do no more
than inform Graham of the outcome of this appeal and his future options,
unless, upon review, counsel finds an issue appropriate for submission to
our supreme court by petition for review. State v. Shattuck, 140 Ariz. 582,
584-85 (1984).
¶8 Graham has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See Ariz.
1 Absent material changes from the relevant date, we cite a statute’s
current version.
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STATE v. GRAHAM
Decision of the Court
R. Crim. P. 31.19(a). Upon the Court’s own motion, we also grant Graham
thirty days from the date of this decision to file an in propria persona motion
for reconsideration.
AMY M. WOOD • Clerk of the Court
FILED: AA
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