State v. Yak
1 CA-CR 16-0874
| Ariz. Ct. App. | Oct 3, 2017Background
- In 2003 Yak Madut Yak pleaded guilty to aggravated DUI (class 4 felony) and received 4 months' imprisonment and three years' probation.
- Probation was modified and reinstated several times; Yak remained under supervision after a 2015 release from prison on another matter.
- Probation conditions required residence at an APD-approved residence and participation in approved counseling programs; Yak signed written directives acknowledging those conditions.
- APD petitioned to revoke probation after Yak failed to stay at the approved residence and failed to contact/participate in counseling.
- At the revocation hearing the probation officer testified to these failures; the trial court found violations of probation terms 4 and 10, revoked probation, and imposed the presumptive 2.5-year prison term. Yak appealed; appellate counsel filed an Anders brief and Yak did not file a supplemental pro se brief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence supported revocation of Yak's probation | State: Probation officer testimony and signed directives show Yak failed to reside at approved location and failed to participate in counseling | Yak (no substantive pro se appellate argument; counsel raised no nonfrivolous issues) | Court: Evidence by a preponderance supported the violations; revocation upheld |
| Whether the sentence was improper | State: Sentence (presumptive 2.5 years) is within permissible range and court considered aggravating/mitigating factors | Yak: asserted no preserved, nonfrivolous sentencing challenge on appeal | Court: Sentence within lawful range and not arbitrary; affirmed |
| Whether any procedural or fundamental error occurred at revocation | State: Hearing complied with requirements; Yak had counsel and opportunity to speak | Yak: waived any delay; no timely, arguable issues presented on appeal | Court: No fundamental or reversible error found |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (procedures for counsel filing a brief asserting no meritorious issues on appeal)
- State v. Leon, 104 Ariz. 297 (Ariz. 1969) (appellate screening following Anders)
- State v. Guerra, 161 Ariz. 289 (Ariz. 1989) (appellate court will not reweigh evidence supporting probation revocation)
- State v. Moore, 125 Ariz. 305 (Ariz. 1980) (probation violation finding will be upheld unless arbitrary or unsupported by any theory of evidence)
- State v. Shattuck, 140 Ariz. 582 (Ariz. 1984) (counsel’s duties after filing an Anders brief; informing client of options for petition for review)
- State v. Vaughn, 217 Ariz. 518 (App. 2008) (viewing facts in the light most favorable to upholding a probation violation finding)