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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    DAVID LAYNE BURNEY, Appellant.

                             No. 1 CA-CR 18-0725
                               FILED 5-23-2019


            Appeal from the Superior Court in Apache County
                        No. S0100CR201200163
            The Honorable C. Allan Perkins, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Law Office of Elizabeth M. Hale, Lakeside
By Elizabeth M. Hale
Counsel for Appellant
                             STATE v. BURNEY
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.


J O N E S, Judge:

¶1             David Burney appeals from the revocation of his probation
and imposition of sentence on his 2013 conviction for theft of means of
transportation. After searching the entire record, Burney’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 asks this Court to search the record for
fundamental error. Burney was granted an opportunity to file a
supplemental brief in propria persona but did not do so. After reviewing the
entire record, we find no error. Accordingly, Burney’s probation revocation
and disposition are affirmed.

                 FACTS AND PROCEDURAL HISTORY

¶2            In June 2013, Burney pleaded guilty to one count of theft of
means of transportation.1 The trial court suspended the imposition of
sentence and placed Burney on standard probation for five years. As part
of his probation, Burney was instructed, in writing, to “report to the [adult
probation department (APD)] . . . as directed” and “receive prior approval
of the APD before changing [his] residence.”

¶3             After Burney violated the terms of standard probation, the
trial court placed him on intensive probation for two years, beginning in
May 2018. Burney was again instructed, in writing, as part of the terms of
intensive probation, “to report to the APD . . . as directed” and “receive
prior approval of the APD before changing [his] residence.”

¶4           On May 30, 2018, Burney’s probation officer approved his
request to move and transfer his probation services from Apache County to
Maricopa County. However, the APD was unable to verify that Burney was


1       We view the facts in the light most favorable to upholding the trial
court’s decision to revoke probation. See State v. Vaughn, 217 Ariz. 518, 519,
¶ 3 n.2 (App. 2008) (citing State v. Maldonado, 164 Ariz. 471, 473 (App. 1990)).


                                       2
                            STATE v. BURNEY
                           Decision of the Court

living at the Maricopa County address he had provided. When the
probation officer learned Burney had moved to a different location in
Maricopa County without permission, she directed him to return to Apache
County by June 6. Burney moved yet again but did not return to Apache
County until June 13.

¶5            On June 15, 2018, the probation officer approved a second
request to transfer Burney’s probation services to Maricopa County and
directed him, in writing, to report to the APD on June 17. Burney did not
contact the APD and, as of June 19, his whereabouts were unknown.

¶6           Burney’s probation officer filed a petition to revoke his
probation upon the grounds that Burney failed to report to probation as
directed and moved residences without prior approval. At the violation
hearing, Burney presented evidence and testimony suggesting he was
unable to report as directed because he was having difficulty with finances
and transportation and never received contact information for the APD in
Maricopa County.

¶7            After the hearing, the trial court found the State proved that
Burney violated the conditions of his probation by a preponderance of the
evidence. At disposition, the court revoked Burney’s probation and
sentenced him as a non-dangerous, non-repetitive offender to a
presumptive term of 3.5 years’ imprisonment with credit for 130 days of
presentence incarceration.      Burney timely appealed, and we have
jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-
120.21(A)(1),2 13-4031, and -4033(A)(3). See State v. Regenold, 226 Ariz. 378,
380, ¶ 12 (2011) (holding a defendant may appeal a sentence imposed after
a contested hearing on a probation violation).

                               DISCUSSION

¶8             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 trial court’s finding that Burney violated a
condition of his probation is supported by the evidence. See Vaughn, 217
Ariz. at 521, ¶ 14 (“This court will uphold the superior court’s ‘finding that
a probationer has violated probation unless the finding is arbitrary or
unsupported by any theory of evidence.’”) (quoting State v. Thomas, 196
Ariz. 312, 313, ¶ 3 (App. 1999)); Ariz. R. Crim. P. 27.8(b)(3) (“A violation


2      Absent material changes from the relevant date, we cite the current
version of rules and statutes.


                                      3
                             STATE v. BURNEY
                            Decision of the Court

must be established by a preponderance of the evidence.”). So far as the
record reveals, Burney was represented by counsel at all stages of the
proceedings, and all of the proceedings were conducted in compliance with
the Arizona Rules of Criminal Procedure. See generally A.R.S. § 13-901(C);
Ariz. R. Crim. P. 27. Further, the revocation of Burney’s probation and
imposition of a prison term was a permissible disposition for the violation,
see Ariz. R. Crim. P. 27.8(c)(2), and the prison term imposed was within the
statutory limits, A.R.S. § 13-702(D).

                                CONCLUSION

¶9           The trial court’s orders finding Burney violated the terms of
his probation and sentencing him to a term of imprisonment are affirmed.

¶10            Defense counsel’s obligations pertaining to Burney’s
representation in this appeal have ended. Defense counsel need do no more
than inform Burney 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).

¶11            Burney has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See Ariz.
R. Crim. P. 31.21(b)(2)(A). On the court’s own motion, we also grant Burney
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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