State v. Hanes
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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. BILL BURHAN HANES, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 03/09/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-1099 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR 2005-1084 The Honorable Steven F. Conn, Judge VACATED AND REMANDED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals, Capital Litigation Section Melissa M. Swearingen, Assistant Attorney General Attorneys for Appellee Carlene Lacy, Acting Mohave County Public Defender By Jill L. Evans, Deputy Public Defender Attorney for Appellant J O H N S E N, Judge Kingman ¶1 that Bill Burhan Hanes appeals the superior court s finding he violated the conditions revocation of his probation. of his probation and its For the following reasons, we reverse and remand. FACTS AND PROCEDURAL HISTORY ¶2 On October 23, 2006, after Hanes entered into a plea agreement admitting to one count of fraudulent schemes and artifices, a Class 2 felony, the superior court placed Hanes on supervised probation for seven years, incarceration in the county jail. including one year of The terms of his probation required Hanes to report to the probation department within 72 hours report of his as release directed from by his incarceration probation and to officer. continue He also to was required to pay a $50 monthly probation services fee and $200 in reimbursement for attorney s fees at the rate of $10 monthly. ¶3 On August 13, 2008, Hanes s probation officer filed a petition to revoke probation, alleging Hanes failed to report as directed to the Adult Probation Department from May through August of 2008, failed to obtain prior approval before changing his residence and failed to make court-ordered payments after February 2008. At a hearing, the probation officer testified that in May 2008 he orally instructed Hanes to report to the probation office the following day. following day or at any time Hanes did not report the thereafter. 2 During the next several months, the officer made unsuccessful attempts contact Hanes by phone and at Hanes s residence. the probation officer, Hanes had a standing to According to agreement to report every month. ¶4 Hanes also testified, admitting he did not report to his probation officer from May through August 2008 even though he acknowledged the officer told him to report every two months. Hanes explained he did not report because his father had a stroke and he took his father to doctor s appointments. ¶5 The probation officer also testified that Hanes failed to make his monthly court-ordered payments after February 2008. Hanes was employed by a construction company, working 25 to 30 hours per week. garnished for Hanes testified, however, that his wages were child-support payments in the amount of approximately $1000 per month. ¶6 At the hearing s conclusion, the court found Hanes in violation of his probation for failing to report as ordered by his probation officer and failing to make monthly court-ordered payments. The court found the State had not proven, however, that Hanes had changed residences. The court revoked Hanes s probation and sentenced him to a presumptive term of five years imprisonment, with credit for 449 days served. 3 ¶7 Hanes timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2001) and -4033 (Supp. 2009). DISCUSSION ¶8 Hanes argues the court erred in finding him in violation of his probation in the absence of evidence of any written directives officer and ordering insufficient him to evidence report that his to his failure probation to make monthly payments was willful. ¶9 The State must prove preponderance of the evidence. a probation violation by a Ariz. R. Crim. P. 27.8(b)(3); State v. Elmore, 174 Ariz. 480, 483, 851 P.2d 105, 108 (App. 1992). We will uphold the superior court s finding that a probationer has violated probation unless the finding arbitrary or unsupported by any theory of evidence. is State v. Vaughn, 217 Ariz. 518, 521, ¶ 14, 176 P.3d 716, 719 (App. 2008) (quotation omitted). The decision to revoke probation lies within the superior court s discretion upon a finding that a violation of a condition or regulation of probation occurred. See State v. Sanchez, 19 Ariz. App. 253, 254, 506 P.2d 644, 645 (1973). A. ¶10 Failure to Report as Directed. Hanes first argues there was insufficient evidence for the court to find he violated the condition requiring him to 4 report as directed to the probation department because there was no evidence his probation officer ordered him to report in writing. Probation shall not be revoked for violation of a condition or regulation of received a written copy. which the probationer has not Ariz. R. Crim. P. 27.8(c)(2); see also State v. Jones, 163 Ariz. 498, 499, 788 P.2d 1249, 1250 (App. 1990). ¶11 1196, In State v. Robinson, 177 Ariz. 543, 543, 869 P.2d 1196 (1994), a written condition of the defendant s probation required him to [p]articipate and cooperate in and successfully complete any program of assistance, counseling or therapy, whether outpatient or residential, as directed by the probation officer. probation officer Pursuant to this condition, the defendant s orally directed specific counseling program. defendant did not comply him to participate Id. at 544, 869 P.2d at 1197. and the petition to revoke probation. Id. probation officer in a The filed a At the revocation hearing the defendant admitted he knew of the requirement to complete the specific counseling program and that he declined to do so. Id. Nevertheless, our supreme court held the superior court erred in finding a probation violation based on the defendant s failure to comply with the oral order, notwithstanding that the oral order was issued pursuant to a written boilerplate general directive. Id. at 545-46, 869 P.2d at 1198-99. 5 The court explained that the written general directive that the defendant participate in a program as directed by his probation officer did not constitute the requisite written notice because it did not specifically tell the defendant what he must do, nor did it give the superior court or appellate courts guidance as to what he was supposed to do. Id. at 544, 896 P.2d at 1197. Instead, it was the oral directive to complete a specific program that the defendant was alleged to have violated. Id. at 545, 869 P.2d at 1198. ¶12 The circumstances here are directly analogous to those in Robinson. The written conditions of Hanes s probation contained the boilerplate general directive that he [r]eport to the APD within 72 (or __) hours of sentencing, absolute discharge from prison, release from incarceration or residential treatment, and continue to report as directed. According to the testimony, Hanes s probation officer orally directed him to report one day in May 2008 and Hanes had a standing agreement to report either every month, according to the officer, or every two months, according to Hanes. that the probation instructions to officer report. The State presented no evidence delivered to Additionally, Hanes the any written general written directive did not satisfy the notice rule because it did not tell Hanes specifically when he must report; though the petition to revoke quoted the written general 6 directive, Hanes was alleged to have violated his probation by failing to report as orally directed by his probation officer. Accordingly, we set aside the finding that Hanes violated his probation for failure to report to his probation officer. B. Failure to Pay Court-Ordered Fees. ¶13 The sentence a nonpayment pay. superior defendant without court to may not imprisonment inquiring into the revoke solely probation on and grounds of ability to defendant s Bearden v. Georgia, 461 U.S. 660, 672 (1983); State v. Davis, 159 Ariz. 562, 563, 769 P.2d 1008, 1009 (1989). Hanes argues there was insufficient evidence on which the court to find his failure to pay court-ordered fees was willful. ¶14 finding Sufficient that Hanes evidence supported violated the the condition superior of his court s probation requiring him to pay probation fees and reimbursement. The probation officer testified Hanes stopped making the payments after February 2008 and the State introduced exhibits supporting the officer s statements. With respect to ability to pay, Hanes testified that his child-support payments caused him financial difficulty; he did not, however, testify he was unable to make the probation payments. At the revocation hearing s conclusion, the superior court acknowledged that the evidence showed Hanes had approximately $175 left over from his paycheck after child 7 support was deducted but stated, I don t know anything else about his financial obligations. ¶15 solely The due to court could not his failure have revoked to make payments inquiry into his ability to pay. Hanes probation without further Davis, 159 Ariz. at 563, 769 P.2d at 1009; State v. Wilson, 150 Ariz. 602, 605, 724 P.2d 1271, 1274 (App. 1986). The court, however, did not base its revocation of probation solely on Hanes s failure to pay. In fact, the court told Hanes at the disposition hearing, I am focusing on the failure to report because the failure to make payments is not why you are here now. 1 ¶16 When we set aside at least one finding of a probation violation, the revocation and disposition also must be set aside and the case remanded for a new disposition hearing unless the record clearly shows the superior court would have made the same disposition without the violation set aside on appeal. State v. Ojeda, 159 Ariz. 560, 562, 769 P.2d 1006, 1008 (1989). The court s statements at the disposition hearing in this case do not support the conclusion that it would have made the same 1 Because the court did not revoke Hanes s probation solely for his failure to make the payments and because we set aside the court s finding that Hanes violated his probation for failing to report to his probation officer, we need not reach the issue of whether the court sufficiently inquired into his ability to pay. 8 disposition had it not found Hanes in violation for failure to report. CONCLUSION ¶17 For the foregoing reasons, we vacate the order of revocation and disposition and remand for proceedings consistent with this decision. See Ojeda, 159 Ariz. at 562, 769 P.2d at 1008. /s/_____________________________ DIANE M. JOHNSEN, Judge CONCURRING: /s/________________________________ PATRICIA A. OROZCO, Presiding Judge THOMPSON, Judge, dissenting. ¶18 prescribes Rule a 27.8, Arizona violation Rule hearing of to Criminal determine Procedure, whether a probationer has violated a written condition or regulation of probation . . .. The writing requirement serves to assure that a probationer is aware of any special obligations beyond the general obligations of probation. State v Acosta, 25 Ariz. App. 44, 45, 540 P.2d 1263, 1264 (1975). The comment to Rule 27.1 notes that the usual practice in the superior courts . . . is for the court to impose a few conditions such as to obey the rules or regulations imposed by the probation officer, and that the Rule retains this general procedure. Thus special 9 conditions requiring a prescribed treatment regimen must be in writing to support revocation. State v Heasley, 23 Ariz. App. 345, 533 P.2d 556 (1975)(alcohol treatment); State v Robinson, 177 Ariz. 543, 869 P.2d 1196 (1994) (counseling). By contrast, the reporting requirement that Hanes violated is of the general nature of rules or regulations referenced in the Rule comment and in Acosta. Hanes knew he was supposed to report at least once every two months but did not report for four months. He violated the written condition that he report as directed and I would affirm revocation of his probation. /s/____________________________ JON W. THOMPSON, Judge 10
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