State v. Yak ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
YAK MADUT YAK, Appellant.
No. 1 CA-CR 16-0874
FILED 10-3-2017
Appeal from the Superior Court in Maricopa County
No. CR 2002-016724
The Honorable John R. Doody, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
STATE v. YAK
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.
C A M P B E L L, Judge:
¶1 Yak Madut Yak appeals the revocation of his probation and
resulting prison sentence. After searching the record on appeal and finding
no arguable, non-frivolous question of law, Yak’s counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon,
104 Ariz. 297 (1969). Counsel asks this court to search the record for
fundamental error. Yak was informed of his right to file a supplemental
brief, in propria persona. We have not received a brief. After reviewing the
entire record, we find no fundamental error and affirm.
FACTS AND PROCEDURAL BACKGROUND 1
¶2 In 2003 Yak pleaded guilty to aggravated driving under the
influence of intoxicating liquor or drugs, a class 4 felony. The trial court
sentenced him to a term of four months’ imprisonment and three years’
probation.
¶3 Yak’s standard probation began in October 2003. He was
reinstated to five years of intensive probation in May 2006 and reinstated
on standard probation for three years in April 2007. After Yak was released
from prison in December 2015 on another matter, he continued serving his
probation in this matter.
¶4 Yak’s conditions of probation required him to reside in an
adult probation department (“APD”) approved residence and participate
in approved counseling programs. Due to his failure to comply with the
terms and conditions of his probation, APD filed a petition to revoke his
probation.
1 We view the facts in the light most favorable to upholding the trial
court’s finding of a probation violation. See State v. Vaughn, 217 Ariz. 518,
n. 2 (App. 2008).
2
STATE v. YAK
Decision of the Court
¶5 At the revocation hearing, Yak’s probation officer testified he
provided written directives requiring Yak to report to an APD approved
residence and counseling program. Yak acknowledged his understanding
by signing the terms and conditions of his probation which were more fully
set forth in the written directives. Yak did report, but failed to stay, at the
APD approved residence, and failed to contact and participate in the
counseling program.
¶6 The trial court found that Yak violated probationary terms 4
and 10. The defendant waived any delay and the trial court proceeded to
disposition. The court revoked Yak’s probation and imposed the
presumptive term of two and one half years in prison. Yak timely filed a
notice of appeal.
DISCUSSION
¶7 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300. Yak was represented by counsel at all
stages of the proceedings. At the revocation hearing, the State presented
evidence sufficient to find, by a preponderance, Yak violated the terms of
his probation. It is not the function of this court to reweigh evidence. See
State v. Guerra, 161 Ariz. 289, 293 (1989). Yak had an opportunity to speak
at sentencing. Finally, the court weighed both aggravating and mitigating
factors presented and Yak’s sentence was within the range of permissible
sentences for his offense. We will uphold a trial court’s finding of a violation
“unless it is arbitrary or unsupported by any theory of evidence.” State v.
Moore, 125 Ariz. 305, 306 (1980).
CONCLUSION
¶8 We affirm the trial court’s probation violation finding and
resulting sentence. Counsel’s obligation pertaining to Yak’s representation
in this appeal has ended. Defense counsel need do nothing more than
inform Yak of the status of this appeal and his future options, unless, upon
review, counsel finds an issue appropriate for submission to the Arizona
3
STATE v. YAK
Decision of the Court
Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-
85 (1984). On the court’s own motion, we also grant Yak 30 days from the
date of this decision to file an in propria persona motion for reconsideration
or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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