State v. Akins

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL THOMAS AKINS, Appellant.

Nos. 1 CA-CR 17-0556
1 CA-CR 17-0565
(Consolidated)
FILED 3-1-2018

Appeal from the Superior Court in Yavapai County
Nos. P1300CR201501035
P1300CR201700085
The Honorable Tina R. Ainley, Judge

AFFIRMED

COUNSEL

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

Nicole T. Countryman, Attorney at Law, Phoenix
By Nicole T. Countryman
Counsel for Appellant
 STATE v. AKINS
Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.

C R U Z, Judge:

¶1 This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for Michael
Thomas Akins has advised this Court that counsel found no arguable
questions of law and asks us to search the record for fundamental error.
Akins was convicted of theft of means of transportation, a class three
repetitive felony and unlawful flight from law enforcement, a class five
repetitive felony.1 Akins was given an opportunity to file a pro per
supplemental brief; he has not done so.

FACTUAL AND PROCEDURAL HISTORY2

¶2 Officer McGinnis was patrolling in his fully-marked patrol
car on November 17, 2016, when he saw Akins driving a motorcycle that
did not have a license plate. Officer McGinnis had been looking for Akins
regarding another matter and was able to identify Akins because Akins was
not wearing a helmet. Officer McGinnis noticed the motorcycle was a
newer motorcycle that had been spray-painted black. He began to follow
Akins, activating his emergency lights and siren. Akins accelerated away
from Officer McGinnis.

¶3 Officer McGinnis followed Akins and saw a skid mark on the
side of the road leading to a wash and some brush, and Officer McGinnis
exited his vehicle to investigate. A few seconds later, Akins came out of the

1 Akins committed the two offenses in this case while on probation for
shoplifting, a class four felony. The court revoked Akins’ probation during
these proceedings, but that revocation is not part of this appeal.

2 We view the facts in the light most favorable to sustaining the
judgment and resolve all reasonable inferences against Appellant. See State
v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).

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 STATE v. AKINS
Decision of the Court

brush and Officer McGinnis told him to stop. Akins looked at the officer,
then turned around and ran back into the brush. Officer McGinnis sent out
an attempt-to-locate on Akins, then found the motorcycle in the brush. He
noted the motorcycle had no license plate, was painted black in a manner
that struck him as suspicious, had its wiring harness on the ignition cut, and
had wiring nuts holding the wires together. He then checked the
motorcycle’s vehicle identification number and ascertained that it was
stolen.

¶4 At trial, the motorcycle’s owner said he had not given anyone
permission to use his motorcycle, including Akins. The jury found Akins
guilty on both counts.

¶5 The trial court conducted the sentencing hearing in
compliance with Akins’ constitutional rights and Arizona Rule of Criminal
Procedure 26. Akins admitted to the aggravating factors of prior
convictions and committing the offense while on probation. The court
sentenced Akins to the presumptive sentence of 11.25 years for theft of
means of transportation and 5 years for unlawful flight from law
enforcement, with both sentences to run concurrently with each other and
no presentence incarceration credit.3 The court also ordered Akins to pay
several fees4 and $1,370.24 in restitution to the motorcycle’s owner.

¶6 Akins timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1), 13-4031, and 13-4033(A)(1).

DISCUSSION

¶7 We review Akins’ convictions and sentences for fundamental
error. See State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011). Counsel for
Akins has advised this Court that after a diligent search of the entire record,
counsel has found no arguable question of law. We have read and
considered counsel’s brief and fully reviewed the record for reversible
error, see Leon, 104 Ariz. at 300, and find none. All of the proceedings were
conducted in compliance with the Arizona Rules of Criminal Procedure. So
far as the record reveals, counsel represented Akins at all stages of the

3 Akins received presentence incarceration credit for the sentence
resulting from his violation of probation in the prior shoplifting matter.

4 $20 probation surcharge, $13 criminal assessment, $25 public
defender fee, and the balance from Akins’ probation case.

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 STATE v. AKINS
Decision of the Court

proceedings, and the sentences imposed were within the statutory
guidelines. We decline to order briefing and affirm Akins’ convictions and
sentences.

¶8 Upon the filing of this decision, defense counsel shall inform
Akins of the status of the appeal and of his future options. Counsel has no
further obligations unless, upon review, counsel finds an issue appropriate
for submission to the Arizona Supreme Court by petition for review. See
State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Akins shall have thirty days
from the date of this decision to proceed, if he desires, with a pro per motion
for reconsideration or petition for review.

CONCLUSION

¶9 For the foregoing reasons, we affirm.

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

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