State v. Nash ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ALBERT EDWARD NASH, JR., Appellant.
No. 1 CA-CR 16-0075
FILED 5-17-2016
Appeal from the Superior Court in Yavapai County
No. P1300CR14337
The Honorable Michael R. Bluff, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
David Goldberg Attorney at Law, Ft. Collins, CO
By David Goldberg
Counsel for Appellant
STATE v. NASH
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Patricia K. Norris joined.
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
Albert Edward Nash, Jr., has advised us that he has been unable to discover
any arguable questions of law after searching the entire record, and has
filed a brief requesting us to conduct an Anders review of the record. Nash
did not take the opportunity to file a supplemental brief.
FACTS1
¶2 Nash pled guilty to two counts of attempted child molestation
in 1990, and was sentenced to prison for one count, and given a suspended
sentence of twenty years’ probation for the second count. State v. Nash, 1
CA-CR 15-0162, 2015 WL 6499499, at *1, ¶ 2 (Ariz. App. Oct. 27, 2015) (mem.
decision). In 2009, while on probation, Nash pled guilty to furnishing
harmful items to minors, and was sentenced to six years in prison. Id. at
¶ 2. Because the offense was a violation of the conditions of his probation,
the court ordered that probation be reinstated for his lifetime upon his
release from prison for the 2009 offense. Id.
¶3 In October 2014, Nash’s probation officer filed a petition to
revoke Nash’s probation, alleging that Nash was in possession of sexually
explicit material, and had been near a park or school primarily used by
children on two occasions. Id. at ¶¶ 3-4. After a contested hearing, the
superior court revoked Nash’s probation, sentenced him to six years in
prison, and Nash appealed. Id. at *1-3, ¶¶ 5-13.
1We view the facts “in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” State v.
Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).
2
STATE v. NASH
Decision of the Court
¶4 On appeal, we found there was insufficient evidence to
support the allegation that Nash had been near a park primarily used by
minors, id. at *8, ¶ 37, and remanded the case because we could not
determine “whether the superior court would have still revoked probation
and sentenced Nash to six years’ imprisonment based only on the two
violations that remaine[d].” Id. at *10, ¶ 46.
¶5 On remand, and after a disposition hearing, the superior court
took into consideration the mitigating evidence previously filed, and the
fact that only two of the violations were upheld on appeal, and changed
Nash’s sentence. The court revoked Nash’s probation, sentenced him to a
term of five years in prison, and gave him 608 days of presentence
incarceration credit. Nash appeals, and we have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).2
DISCUSSION
¶6 We have read and considered counsel’s brief and have
searched the entire record for reversible error. We find none. See Leon, 104
Ariz. at 300, 451 P.2d at 881. All of the proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure. The record, as
presented, reveals that Nash was represented by counsel at all stages of the
proceedings, and the sentence imposed was within the statutory limits.
¶7 After this decision is filed, counsel’s obligation to represent
Nash in this appeal has ended. Counsel must only inform Nash of the
status of the appeal and Nash’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, 584-85, 684 P.2d 154, 156-57
(1984). Nash may, if desired, file a motion for reconsideration or petition
for review pursuant to the Arizona Rules of Criminal Procedure.
2We cite the current version of the applicable statutes absent changes
material to this decision.
3
STATE v. NASH
Decision of the Court
CONCLUSION
¶8 Accordingly, we affirm the sentence.
:ama
4