State v. Akuar

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

PRIMO AKUAR AKUAR, Appellant.

No. 1 CA-CR 17-0276
No. 1 CA-CR 17-0282
(Consolidated)
FILED 4-10-2018

Appeal from the Superior Court in Maricopa County
Nos. CR2015-149260-001
CR2016-139752-001
The Honorable George H. Foster, Jr., Judge

AFFIRMED

COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Edward F. McGee
Counsel for Appellant
 STATE v. AKUAR
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Peter B. Swann and Judge James P. Beene joined.

T H O M P S O N, Presiding Judge:

¶1 This case comes to us as 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 Primo Akuar Akuar (defendant) has advised us that, after
searching the entire record, he has been unable to discover any arguable
questions of law and has filed a brief requesting this court conduct an
Anders review of the record. Defendant has been afforded an opportunity
to file a supplemental brief in propria persona, but he has not done so.

¶2 Defendant was convicted in 2015 of one count of unlawful
discharge of a firearm, a class 6 non-dangerous felony. Imposition of
defendant’s sentence was suspended, and the court placed him on
probation for a term of three years to begin on December 2, 2015.

¶3 On August 20, 2016, a security guard at a Glendale apartment
complex received reports from several residents of an unruly tenant. The
security guard responded to defendant’s apartment to investigate the
reports, where he observed a strong odor of alcohol on defendant. During
this encounter, the security guard described defendant as appearing upset,
yelling, slurring his speech, while proceeding to spit at the guard when
asked to calm down.

¶4 Upon the security guard’s request for assistance, three officers
in uniform responded to the balcony outside of defendant’s third-floor
apartment where officers observed defendant leaning over the balcony
yelling slurred profanities “very loudly” over and over. According to one
officer’s testimony, the echoing profanities caused many tenants to gather
in the apartment complex’s courtyard. Two officers detained defendant
and escorted him down the three flights of stairs to the patrol car. Upon
reaching the bottom of the stairwell, both officers testified that defendant
kicked backwards with his right foot, striking one officer either on the shin
or “across both thighs just below [the] groin.”

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 STATE v. AKUAR
Decision of the Court

¶5 The two officers further testified that defendant, once led to
the patrol car and in between yelling profanities, spit towards the officer
holding his left arm, narrowly missing the officer’s face and “misting” him
with spittle. The spitting continued, forcing the officers to lower defendant
to the ground where he was laid upon his stomach. Officers then obtained
a spit hood and placed it over defendant’s head. An audio recorder in one
of the officer’s pocket recorded a majority of this encounter.

¶6 Based on this incident, the state filed a petition to revoke
probation. The state then charged defendant with: (1) one count of
aggravated assault of a peace officer, to wit, kick(s), a non-dangerous class
5 felony; (2) one count of aggravated assault of a peace officer, to wit, spit
to the face, a non-dangerous class 5 felony; and (3) one count of disorderly
conduct, a class 1 misdemeanor. A jury convicted defendant of counts two
and three, and found defendant not guilty as to count one. The state alleged
aggravating circumstances, including conviction of a prior felony within
ten years immediately preceding the date of the offense, and that defendant
was on probation when the current offense was committed. A jury found
the state proved both aggravating circumstances as to count two.

¶7 The trial court sentenced defendant to the presumptive term
of 2.25 years imprisonment as to count two and gave him 227 days of
presentence incarceration credit. With respect to count three, the trial court
sentenced him to one day imprisonment, with credit for one day time
served. The trial court did not revoke defendant’s probation, but found him
in violation of his probation conditions. The trial court reinstated
defendant’s probation for two years to begin upon his release from
imprisonment on the current charge.

¶8 In his brief, defense counsel raises a potential claim of
ineffective assistance of counsel. Counsel may not raise such a claim in an
Anders appeal. See State v. Chavez, 243 Ariz. 313, 318, ¶ 21, n.7 (App. 2017).

¶9 We have read and considered defendant’s Anders brief, and
we have searched the entire record for reversible error. See Leon, 104 Ariz.
at 300. We find none. All of the proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure, and the sentence imposed
was within the statutory limits. Pursuant to State v. Shattuck, 140 Ariz. 582,
584-85 (1984), defendant’s counsel’s obligations in this appeal are at an end.
Defendant has thirty days from the date of this decision in which to
proceed, if he so desires, with an in propria persona motion for
reconsideration or petition for review.

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 STATE v. AKUAR
Decision of the Court

¶10 We affirm the convictions and sentences.

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

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