State v. Diamond ( 2018 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    AUSTIN NASHAT DIAMOND, Appellant.
    No. 1 CA-CR 17-0670
    FILED 5-1-2018
    Appeal from the Superior Court in Mohave County
    No. S8015CR201500910
    The Honorable Richard D. Lambert, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Joseph T. Maziarz
    Counsel for Appellee
    Janelle A. McEachern Attorney at Law, Chandler
    By Janelle A. McEachern
    Counsel for Appellant
    STATE v. DIAMOND
    Decision of the Court
    MEMORANDUM DECISION
    Judge Maria Elena Cruz delivered the decision of the Court, in which
    Presiding Judge Michael J. Brown and Judge David D. Weinzweig 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 Austin
    Nashat Diamond has advised this Court that counsel found no arguable
    questions of law and asks us to search the record for fundamental error.
    Diamond was convicted of theft, a Class 3 felony, and trafficking in stolen
    property in the first degree, a Class 2 felony. Diamond was given an
    opportunity to file a supplemental brief in propria persona, but he has not
    done so. After reviewing the record, we affirm Diamond’s convictions and
    sentences.
    FACTUAL AND PROCEDURAL HISTORY
    ¶2           We view the facts in the light most favorable to sustaining the
    convictions and sentences and resolve all reasonable inferences against
    Diamond. See State v. Fontes, 
    195 Ariz. 229
    , 230, ¶ 2 (App. 1998).
    ¶3           In 2013, the two victims employed Diamond in their business
    in Fort Mohave and allowed him to stay in their home for short periods of
    time because he did not have a place to stay. By December 2013, Diamond
    had stopped staying at the house, and one of the victims noticed their two
    Omega watches were missing. There were no signs of a break-in. The other
    victim called the police and gave them the serial number of one of the
    missing watches. A few months later, she provided the other watch’s serial
    number and notified the police that the victims had discovered several
    other items were missing from their home.
    ¶4           Because Diamond had previously mentioned to the victims
    that he went to pawn shops, the victims told the police to check the local
    pawn shops for Diamond’s name. The next day, the police told the victims
    they had found two watches with the correct serial numbers by entering
    2
    STATE v. DIAMOND
    Decision of the Court
    Diamond’s name into the Leads Online system.1 The police were only able
    to recover one of the watches from a pawn shop in Mohave County. They
    were unable to recover the second watch.
    ¶5             The State indicted Diamond for theft, a Class 3 felony, and
    trafficking in stolen property in the first degree, a Class 2 felony, in August
    2015. It alleged Diamond committed the offenses while on felony probation
    and the aggravating factors of substantial value of the property taken,
    Diamond committed the offense in expectation of receipt of something of
    pecuniary value, the victims suffered emotional or financial harm, and
    Diamond was convicted of a felony offense within ten years prior to the
    commission of the offense.
    ¶6            After trial, a jury found Diamond guilty of both counts. It also
    found Diamond committed the offenses while on probation for a conviction
    of a felony offense and in the expectation of the receipt of anything of
    pecuniary value. The court found Diamond was convicted of a felony
    offense within ten years prior to the commission of the offense. The
    superior court sentenced Diamond to 9.25 years’ imprisonment for
    trafficking in stolen property and a concurrent sentence of 6.5 years’
    imprisonment for theft. It also ordered Diamond to complete a term of one
    year and one month of community service and credited Diamond with 218
    days served prior to sentencing. Finally, it required Diamond to pay several
    fees2 and $15,885.80 in restitution to the victims.
    ¶7          Diamond timely appealed. We have jurisdiction pursuant to
    Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
    13-4033.
    DISCUSSION
    ¶8            We review Diamond’s convictions and sentences for
    fundamental error. See State v. Flores, 
    227 Ariz. 509
    , 512, ¶ 12 (App. 2011).
    Counsel for Diamond 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
    1       The Leads Online system is a resource for pawn shops. The shops
    enter items into the system, and law enforcement may look up items by
    serial number to discover who had pawned or sold the items and when.
    2      $20 probation assessment; $13 assessment fee pursuant to A.R.S.
    § 12-116.04; $20 time payment fee pursuant to A.R.S. § 12-116.
    3
    STATE v. DIAMOND
    Decision of the Court
    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
    Diamond at all stages of the proceedings, and the sentences imposed were
    within the statutory guidelines. We decline to order briefing and affirm
    Diamond’s convictions and sentences.
    ¶9            Upon the filing of this decision, defense counsel shall inform
    Diamond 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). Diamond 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
    ¶10          For the foregoing reasons, we affirm Diamond’s convictions
    and sentences.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    4
    

Document Info

Docket Number: 1 CA-CR 17-0670

Filed Date: 5/1/2018

Precedential Status: Non-Precedential

Modified Date: 4/18/2021