State v. Propst

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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, ) ) Appellant, ) ) v. ) ) EUGENE NEAL PROPST, ) ) Appellee. ) ) _________________________________ ) DIVISION ONE FILED: 12/16/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CR 09-0709 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2000-003828 The Honorable Warren J. Granville AFFIRMED William G. Montgomery, Maricopa County Attorney By Lisa Marie Martin, Deputy County Attorney, Attorneys for Appellant Phoenix James J. Haas, Maricopa County Public Defender By Stephen R. Collins, Deputy Public Defender, Attorneys for Appellee Phoenix W I N T H R O P, Presiding Judge ¶1 The State appeals from the trial court s September 3, 2009 order modifying the term of probation for Eugene Propst ( Appellee ) and ordering the Adult Probation Office ( the APO ) to calculate whether probation has been completed and to submit an order of discharge if warranted. trial court abused its discretion The State argues that the and misapplied the law by failing to review the order of discharge under Rule 32 of the Arizona Rules of Criminal Procedure and then erred in actually modifying the order. For the following reasons, we affirm the trial court s order. FACTS AND PROCEDURAL HISTORY ¶2 On March 8, 2000, Appellee was indicted on Count One, molestation of a child under the age of fifteen years, a class two felony, and Count Two, furnishing obscene or harmful items to a minor, a class four felony. 1 entered a plea agreement. On July 19, 2000, Appellee He pled guilty to Amended Count 1, attempted child molestation, a class three felony, and he also pled guilty to Count 2. Both offenses were committed on or between and January 1, 1997, December 31, 1997. The court accepted the plea agreement and on August 30, 2000, it suspended imposition of the sentence and placed Appellee on lifetime probation for Count 1 and 10 years probation for Count 2. The lifetime probation for Count 1 is the only issue on appeal. 1 We note that in Appellee s brief, counsel refers to Appellee as Dean though his name is Propst. We urge counsel to take greater care in reviewing their briefs before submission to this court. 2 ¶3 In November, 2008, the Arizona Supreme Court held in State v. Peek, 219 Ariz. 182, 183, ¶8, 195 P.3d 641, 642 (2008), that lifetime probation imposed between January 1, 1994 and July 21, 1997, ( the Peek period ) for convictions of attempted child molestation illegal. were Peek, Accordingly, unauthorized 219 the APO Ariz. by at statute, 185, registered ¶ and 195 order an 20, of P.3d Appellee filed a memorandum in support at 644. discharge Appellee s probation based on the holding in Peek. 2009, therefore, of of On July 14, the APO s motion. Almost half of the alleged range of dates of Appellee s offense fell within the Peek period, with the other half straddling the end of the Peek period. ¶4 A hearing was held on July 21, 2009, and the court ordered a subsequent hearing to allow the State to prove that Appellee s offense occurred outside of the Peek period. The subsequent hearing was held on September 2, 2009, and the State presented no further evidence. Accordingly, on September 3, 2009, the court ordered a modification of Appellee s probation under Count 1, decreasing the period of probation from lifetime to five years. 2 The court also directed the APO to calculate whether the modified probation term had been completed, and if 2 A term probation period. of five years probation available for Appellee s 3 was the maximum term of offense during the Peek so, ordered that the probation be discharged. This appeal followed. JURISDICTION ¶5 The State contends that we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and 134032(4) (2010). under those accept Without deciding whether we have jurisdiction statutes, special action we instead jurisdiction exercise our pursuant discretion to A.R.S. § to 12- 120.21(A)(4) and Arizona Rules of Procedure for Special Actions 8(a). one Special action jurisdiction is proper when an issue is of first impression of a purely legal question, is of statewide importance, and is likely to arise again . . . . Vo v. Superior Court In and For County of Maricopa, 172 Ariz. 195, 198, 836 P.2d 408, 411 (App. 1992); see also Summerfield v. Superior Court In and For County of Maricopa, 144 Ariz. 467, 469, 698 P.2d 712, 714 (1985) (accepting special action jurisdiction when several pending cases involved the same issue and finding that [n]ormal appellate procedures will result in unnecessary cost and delay to all litigants ). In the instant case, the State asks us to resolve an issue of first impression that is a pure legal issue of statewide importance. Further, multiple cases involving the same issues are either presently before us or inefficient. pending, rendering normal appellate procedures Accordingly, these factors lead us to conclude 4 that accepting special action jurisdiction in this case is appropriate. ANALYSIS ¶6 In State v. Dean, 1 CA-CR 09-0705, 2010 WL 5014334 (Ariz. App. Dec. 7, 2010) (refiled as amended Dec. 9, 2010), this court rejected already virtually this case. considered identical a similar arguments as fact scenario and those presented in We find no reason here to depart from our holding in Dean. ¶7 On its brief, the State relies on evidence that was not introduced at trial that suggests that Appellee s offense occurred outside of the Peek period. The State newly presented evidence consists of a statement made by Appellee s spouse in a presentence investigation that inconclusively suggests that Appellee s offense may have occurred outside the Peek period. The State does not claim to have presented this evidence during the modification evidentiary hearing, nor does anything in the record suggest purported that the State statement at the presented time of or relied Appellee s on this initial sentencing. Accordingly, we do not find that the court erred in determining that the State failed to offense occurred outside the Peek period. 5 demonstrate that the CONCLUSION ¶8 For the aforementioned reasons, we affirm the trial court s order modifying Appellee s period of probation. _________________/S/_________________ LAWRENCE F. WINTHROP, Presiding Judge CONCURRING: _____________/S/_________________ PATRICIA K. NORRIS, Judge _____________/S/_________________ PATRICK IRVINE, Judge 6

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