State v. Petrone

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. JEFF PETRONE, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 01/31/2012 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 11-0079 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause Nos. V1300CR820090098 V1300CR820090261 The Honorable Joseph C. Welty, Judge REVERSED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Barbara A. Bailey, Assistant Attorney General Attorneys for Appellee Yavapai County Public Defender By Abigail Jensen, Deputy Public Defender Attorneys for Appellant Phoenix Prescott N O R R I S, Judge ¶1 order Jeff James Petrone timely appeals the superior court s revoking his probation and imposing sentences for one count of attempted stalking and one count of tampering with a public record. at the time He argues an order entered by the superior court it suspended his sentences and placed him on probation -- that he was not to contact his attempted-stalking victims - was not a condition of [his] probation and thus did not support revocation. For the reasons discussed below, we agree. FACTS AND PROCEDURAL BACKGROUND ¶2 On February 10, 2010, relying on a plea agreement Petrone accepted and signed, the superior court placed Petrone on one year of unsupervised probation, and ordered him to have no contact in any manner with [his attempted-stalking victims] by any means what so ever, written, verbal or by third party for the next three (3) years ( no-contact order). On October 20, 2010, the Yavapai County probation office filed a petition to revoke his probation asserting he had violated the no-contact order. ample After an evidentiary hearing, the superior court agreed evidence showed violation of the order. Petrone had contacted the victims in Because Petrone argued at the hearing he had only violated the court s no-contact order and it was not a condition of his probation, the court found that included within the conditions of unsupervised release is the condition that the defendant shall have no contact [with his attemptedstalking victims]. The court subsequently revoked Petrone s 2 probation and imposed sentences of imprisonment. In doing so, it relied upon its finding the no-contact order was a condition of probation. DISCUSSION ¶3 As discussed, Petrone argues the no-contact order was not a condition of his probation and thus the court was not entitled to revoke his probation for violating it. record, we agree. On this Although it is clear in revoking Petrone s probation the superior court, without the benefit of the change of plea and sentencing ( sentencing hearing ) transcript, believed it had imposed the no-contact order as a condition of probation, the record before us does not reflect this. ¶4 First, the record is clear and the State agrees the document Petrone signed entitled Conditions Probation did not include the no-contact order. of Unsupervised Second, at the sentencing hearing, Petrone asked the court about the no-contact order, noting the court had imposed it for three years while only imposing probation for one year. The exchange that followed reflects the court believed the no-contact order was an order of the court rather than a term of probation. pertinent part, the exchange was as follows: THE COURT: My understanding of [the nocontact] provision, Mr. Petrone . . . is that that s an order of the Court, and that s an order of the Court that you ve agreed to by contract. 3 In DEFENDANT PETRONE: So, then it will be under subject to contempt? THE COURT: If you violate that Court order, you may be subject to contempt. DEFENDANT penalty. PETRONE: Or criminal contempt THE COURT: Or civil contempt. ¶5 Despite probation, the this, court the State necessarily argues that determined in that revoking the [no- contact] provision was a condition of [Petrone s] probation and the failure to include the order on the Conditions Unsupervised Probation form was a technical error. of We reject both arguments. ¶6 First, the court s discussion with Petrone at the sentencing hearing, see supra ¶ 4, undercuts these arguments. In explaining the potential consequences of violating the nocontact order to Petrone, the court did not say it could revoke his probation, and instead discussed contempt. Second, the State s arguments are undercut by the principle that when a term of probation absolutely, expires, Arizona Rule the of probationer Criminal is Procedure discharged 27.5(a), and [o]nce the period of probation has expired, the court lacks jurisdiction to revoke probation, State v. Johnson, 182 Ariz. 73, 73, 893 P.2d 73, 73 (App. 1995). Thus, because the court made no mention of retaining jurisdiction to enforce the no- 4 contact order after the expiration of Petrone s term of probation (assuming it could do so), interpreting the no-contact order as imposed a probation of probation prohibition a condition on conduct and would continue would that even mean the exceeded though court the Petrone had term had of been discharged absolutely. Although the superior court, after the fact, imposed believed it had the no-contact order as a condition of probation at the sentencing hearing, the record does not reflect it did so. Thus, it was not entitled to revoke Petrone s probation on this basis. CONCLUSION ¶7 For the foregoing reasons, we reverse the superior court s revocation of probation and imposition of sentences. _/s/_________________________________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: _/s/_________________________________ MARGARET H. DOWNIE, Judge _/s/_________________________________ JOHN C. GEMMILL, Judge 5

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