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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                  AARON JACKSON YOUNG, Appellant.

                  Nos. 1 CA-CR 18-0201, 1 CA-CR 18-0193
                             (Consolidated)
                             FILED 12-18-2018


         Appeal from the Superior Court in Maricopa County
                      No. CR2015-107088-001
                            CR2013-458384-001
       The Honorable Christine E. Mulleneaux, 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 Kevin D. Heade
Counsel for Appellant
                             STATE v. YOUNG
                            Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined.


P E R K I N S, Judge:

¶1             Aaron Jackson Young timely filed this appeal in accordance
with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), after the trial court modified his probation. Young’s counsel has
searched the record and found no arguable question of law that is not
frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State
v. Clark, 196 Ariz. 530 (App. 1999). Young was given the opportunity to file
a supplemental brief but did not do so. Counsel now asks this Court to
search the record for fundamental error. After reviewing the entire record,
we affirm the continuance and modification of Young’s probation and the
imposition of his sentence.

            FACTUAL AND PROCEDURAL BACKGROUND

¶2            Upon review, we view the facts in the light most favorable to
sustaining the judgment and resolve all inferences against Young. State v.
Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998). Young pled guilty to one count
of possession of drug paraphernalia in October 2014, and the trial court
suspended his sentence and placed him on probation for two years. Young
violated probation and the court again suspended his sentence but
increased the length of probation to three years.

¶3            In May 2015, Young pled guilty to three counts of third degree
burglary. The trial court sentenced Young to concurrent terms of 2.5 years’
imprisonment on two of the burglary charges, and suspended the sentence
on a third burglary charge, imposing probation to begin upon his absolute
discharge. The court again suspended Young’s sentence on the
paraphernalia charge, imposing two years’ probation also to begin upon his
absolute discharge from prison on the burglary charges.

¶4           In August 2017, Young’s probation officer petitioned the
court to revoke probation, alleging Young had absconded. The trial court
issued a warrant, and police arrested Young on October 16, 2017. Young
admitted to violating his probation and the trial court again suspended his
sentence on the paraphernalia charge and imposed two years’ probation.


                                       2
                            STATE v. YOUNG
                           Decision of the Court
On the burglary charge, the trial court imposed three years’ probation and
sentenced Young to three months’ confinement in the county jail, which it
deferred to begin in January 2018.

¶5            Before Young entered confinement, his probation officer
again petitioned the court to revoke probation, alleging that Young
committed robbery and had possessed a prohibited weapon. The trial court
dismissed the petition without prejudice. Young could not start his deferred
jail time because he was incarcerated on another charge, so the superior
court “deleted” the incarceration term from the October 2017 probation
order.

¶6            On January 23, 2018, Young’s probation officer again
petitioned to revoke each probation, now alleging Young: committed the
crime of first degree trespass; possessed a prohibited weapon; failed to
report contact with law enforcement; absconded by failing to report to his
probation officer; absconded by failing to notify the officer of a change in
address; failed to participate in substance abuse counseling; and possessed
or used an illegal drug or controlled substance. The trial court issued
warrants, and police arrested Young on February 8 after responding to an
unrelated call. The probation officer amended the petition, further alleging
that Young committed shoplifting and assault in early January 2018.

¶7             The trial court held hearings on the petition at issue on
February 28 and March 6, 2018. At the March 6 hearing, the court heard
testimony from Young’s probation officer. She testified that, at the time of
the hearing, she had not seen Young since November 2017. Further,
although Young had taken a drug test at TASC, which tested positive for
amphetamines and opiates, Young had not completed any drug treatment
intake. At the end of the hearing, the court found that Young had absconded
by failing to apprise his probation officer of address changes and that he
had possessed or used an illegal drug or controlled substance. The court
dismissed the remaining allegations without prejudice.

¶8            The trial court suspended Young’s sentence and imposed
intensive probation on the paraphernalia charge. As to the burglary charge,
the trial court sentenced Young to three months’ in the county jail, but
otherwise suspended Young’s sentence, and imposed two years’ intensive
probation with an order to complete a mental health evaluation within 30
days of Young’s release. Young timely appealed and we have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) section 13-4033 and State v.
Regenold, 226 Ariz. 378, 378, 380, ¶¶ 1, 12 (2011) (“a defendant who pleads
guilty but later contests an alleged probation violation may appeal the
resulting sentence”).


                                     3
                            STATE v. YOUNG
                           Decision of the Court
                              DISCUSSION

¶9            Young was present and represented by counsel at all critical
stages of the revocation proceeding. See State v. Jackson, 16 Ariz. App. 476,
478 (1972) (“A defendant is entitled to the presence and participation of his
counsel at the hearing on revocation of probation and at the resulting
imposition of sentence.”). The record reflects that the superior court
afforded Young his rights under the federal and state constitutions and our
statutes, and the revocation proceedings were conducted in accordance
with the Arizona Rules of Criminal Procedure.

¶10           Pursuant to Arizona Rule of Criminal Procedure 27.8(b)(3),
the State must prove a probation violation by a preponderance of the
evidence. We will not reverse the court's determination that a defendant
violated a probation term unless the determination is unsupported by any
theory of the evidence. State v. Tatlow, 231 Ariz. 34, 39, ¶ 15 (App. 2012).

¶11            The court found the State proved by a preponderance of the
evidence that Young violated two terms of his probation: Term 7 requiring
Young to receive approval before changing addresses; and term 12
forbidding Young from using illegal drugs or controlled substances.
Sufficient evidence supports these findings. Young’s probation officer
testified that Young was repeatedly unavailable at the address he provided
to her and that Young had given conflicting addresses to law enforcement.
Also, a drug test report from TASC showed that Young tested positive for
amphetamines and opiates.

¶12           The court can modify probation only for a violation of a
condition of which Young had written notice. See Ariz. R. Crim. P.
27.8(c)(2). Young signed and received written copies of his probation
conditions, including the conditions he was accused of violating.

¶13          Before sentencing Young, the court provided him an
opportunity to speak. Thereafter, it modified and continued his probation
and imposed a three-month sentence.

                              CONCLUSION

¶14           We have reviewed the entire record for reversible error. See
Leon, 104 Ariz. at 300. We find none.

¶15          After the filing of this decision, defense counsel’s obligations
pertaining to Young’s representation in this appeal have ended. Defense
counsel need do no more than inform Young of the outcome of this appeal
and his future options, unless, upon review, counsel finds “an issue


                                     4
                             STATE v. YOUNG
                            Decision of the Court
appropriate for submission” to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). On the Court’s
own motion, Young has 30 days from the date of this decision to proceed,
if he wishes, with a pro per motion for reconsideration. Young has 30 days
from the date of this decision to proceed, if he wishes, with a pro per petition
for review.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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