State v. Hall
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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. WAYNE OLIVER HALL, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 11-0259 DIVISION ONE FILED: 05/24/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. S8015CR20071492 The Honorable Lee Frank Jantzen, Judge REVERSED Thomas C. Horne, Arizona Attorney General Phoenix By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section And Suzanne M. Nicholls, Assistant Attorney General Attorneys for Appellee Mohave County Appellate Defender s Office By Jill L. Evans, Deputy Public Defender Attorneys for Appellant O R O Z C O, Judge Kingman ¶1 Defendant, Wayne Oliver Hall, appeals from the trial court s modification of the November 2009 terms and conditions of his probation to require his compliance with sex offender special terms and conditions. He argues that the modification was an abuse of the trial court s discretion. For reasons set forth more fully below, we agree and vacate the trial court s order. FACTS AND PROCEDURAL HISTORY1 ¶2 In October 2007, the State charged Defendant with two counts of sexual conduct with his daughter, a child under the age of eighteen, each a Class 2 felony. Following a four-day trial that resulted in a deadlocked jury, the State offered, and Defendant accepted, an Alford2 plea to one count of child abuse, a Class 2 felony, for having intentionally caused or permitted the child to be placed in a situation where the person or health of the child was endangered. The stipulated plea agreement contains the following provision: (2) The defendant will receive a sentence of: PROBATION, LENGTH IN THE COURT S DISCRETION; consistent with the following additional terms: UP TO SIX MONTHS JAIL; THE DEFENDANT MUST NO[T] HAVE CONTACT WITH 1 We view the evidence in the light most favorable to sustaining [defendant s] convictions and resolve all reasonable inferences against [defendant]. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005) (citation omitted). 2 North Carolina v. Alford, 400 U.S. 25, 31 (1970). 2 FEMALES UNDER THE AGE OF 18 YEARS OLD UNLESS IN THE PRESENCE OF ANOTHER ADULT; ALL OTHER TERMS AT THE JUDGE S DISCRETION. [Defendant] not having to register [as a] sex offender. ¶3 At the change of plea hearing in September 2009, defense counsel specifically clarified with the trial court that no allegation of sexual motivation was being alleged respect to the offense to which defendant was pleading. with Counsel also specified that it was the intent of the parties that there is no [sex offender] registration requirement, which was why there was the provision requiring no contact with females under [the] age of 18. The State confirmed that it requiring [Defendant] to register as a sex offender. court found a factual basis for the plea and was not The trial accepted and entered the plea. ¶4 The probation trial court six months and sentenced in jail. Defendant to five Pursuant to the years Uniform Conditions of Probation, the trial court specifically ordered Defendant to, among other things: Not have any contact with the victim(s) whatsoever, (Term 18); Participate and cooperate in any counseling or assistance as directed by the [Probation Department], (Term 24); and [H]ave no contact with any female under the age of 18 unless in the presence of another adult, (Term 26). The Uniform Conditions of Supervised Probation also included the general condition that Defendant [c]omply with any 3 written directive of the [Probation Department] to enforce compliance with the conditions of probation, (Term #15). ¶5 On October 27, 2010, Defendant s probation officer filed a Petition to Modify probation. In it, the probation officer Investigation noted that the Pre-Sentence report indicated that the offense was sexually motivated, the victim was 10 years at the onset of the molestation and the sexual abuse continued approximately 6 years. Given the nature of the offense and the prolonged period of time during which the offense occurred, the probation officer believed that Sex Offender Special Conditions of probation should be implemented in order to adequately supervise [D]efendant on probation and to assist in ensuring safety to the community. ¶6 The request for modification was prompted by Defendant s refusal to sign an implementation form presented to him by his probation officer before conferring with counsel. Pursuant to Term #15, the implementation form directed defendant to: Not initiate, establish or maintain contact with any male or female child under the age of 18, or attempt to do sex offender (sic) without the written approval of your probation officer. Sign and abide by the probation department's definition of "no contact." Not knowingly date or socialize with any person who has male or female children under 4 the age of 18 without prior written approval of your probation officer. ¶7 In response, Defendant filed a pro per motion to vacate, to which he attached a copy of the implementation form and asked the court to vacate the additional terms imposed by the form. In his motion, Defendant pointed out that the terms of the implementation form were in direct opposition to Term #26 of his terms and conditions of probation, which required only that he have no contact with any females under the age of eighteen without the presence of another adult. He also emphasized that there was never any indication in any of the prior court proceedings that he was a danger to any male under the age of eighteen. ¶8 On November 3, 2010, Defendant s probation officer filed a Petition to Revoke Probation, citing Defendant s violation of Uniform Condition # 15 for his failure to comply with any enforce written directive compliance with of the the [Probation conditions of Department] his to probation. Specifically, the petition alleged that on November 1, 2010, Defendant was in his home with his minor son with no supervision, in violation of a written directive dated October 15, 2010 to not have contact with any male or female child under the age of eighteen (18) years. 5 ¶9 On April 8, 2011, the trial court held a contested revocation of Defendant s probation motion to hearing which it also addressed Term vacate at #15 and the probation officer s motion to modify the terms of probation. stipulated that Defendant had refused to sign The parties the October written directive without first speaking to his attorney and that Defendant had unsupervised contact with his fifteen-yearold son in his home. ¶10 The trial court found that the written directive went beyond the scope of the negotiated terms of probation, and therefore found that Defendant had not violated his probation and denied the petition to revoke. also found that Defendant s However, because the court attitude about the written directives and the probation department s attempts to figure out what s going on in this case exhibited a kind of defiance, the court granted the motion to modify the terms of probation to add the sex offender special terms and conditions of probation. The court made an exception to the usual sex offender terms, permitting Defendant to have contact with his minor son.3 Furthermore, the trial court specifically stated 3 Although the court stated that it was not imposing an additional term that [Defendant] not have contact with male children under the age of 18, the implementation form for the new terms and conditions that Defendant signed following the revocation hearing contains the prohibition against contact 6 that, in accordance with the sex offender terms, Defendant was required to register as a sex offender.4 ¶11 Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 (2003), 13-4031 (2010) and 13-4033.A.3 (2010). DISCUSSION Appellate Jurisdiction ¶12 The parties agree, and we concur, that we have jurisdiction to review Defendant s arguments on direct appeal. Defendants who plead guilty are not entitled to direct appellate review. A.R.S. § 13-4033.B; Ariz. R. Crim. P. 17.1.e. However, a defendant has a right to a direct appeal from a post-judgment change or modification in the terms and conditions of probation that affects his substantial rights. A.R.S. § 13-4033.A.3; see also State v. Regenold, 226 Ariz. 378, 379-80, ¶¶ 9-10, 249 P.3d 337, 338-39 (2011) (defendant who gives up right of appeal by pleading guilty does not waive right to direct appeal from later contested rulings in the case). Here, Defendant contested the addition terms of the sex offender of probation and the with any male or female child under the age of 18 (except for your own children). 4 The court denied Defendant s request to stay implementation of the new sex offender terms pending the resolution of this appeal. 7 modification clearly affected his substantial rights. Defendant is therefore entitled to challenge the addition and modification on direct appeal. See A.R.S. § 13-4033.A.3. Modification of Terms of Probation ¶13 We review a trial court s decision to modify or revoke probation for an abuse of discretion. See Green v. Superior Court, 132 Ariz. 468, 470-71, 647 P.2d 166, 168-69 (1982). An abuse of discretion is discretion manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. State v. Sandoval, 175 Ariz. 343, 347, 857 P.2d 395, 399 (App. 1993) (quoting Quigley v. City Court of Tucson, 132 Ariz. 35, 37, 643 P.2d 738, 740 (App. 1982)). ¶14 The trial court retains the authority to modify or clarify any condition or regulation of probation at any time prior to absolute discharge upon appropriate notice. Crim. P. 27.3. Ariz. R. The court is also given wide discretion to revoke or modify the terms of probation for any reasonable reason. Burton v. Superior Court, 27 Ariz. App. 797, 800, 558 P.2d 992, 995 (1977). In addition, the court retains the power to for modify probation revocation of probation. reasons that would not warrant Green, 132 Ariz. at 470, 647 P.2d at 168. ¶15 However, [a] reasonable basis must exist in order for the judge to either modify or revoke the terms of probation. 8 Burton, 27 Ariz. App. at 800, 558 P.2d at 995. This is because when a trial court decides to place a defendant on probation based on specified conditions are terms fixed and conditions, pending an reasonable basis to change them. ¶16 event those which terms and constitutes a Id. The record in this case contains no evidence of any event that constitutes a reasonable basis for modifying the terms of Defendant s probation by adding sex offender special terms and conditions, including sex offender registration. The trial the court therefore abused its discretion in granting petition to modify without justification. ¶17 The original terms of probation only prohibited Defendant from unsupervised contact with female children under the age of eighteen. Therefore, as the trial court correctly held, Defendant s unsupervised contact with his minor son was not a violation of the original terms of probation. Moreover, the facts trial court acknowledged that the underlying of Defendant s case did not indicate any issues with regard to male children. ¶18 At the revocation hearing, the State conceded that it had no proof . . . whatsoever of any inappropriate behavior by Defendant with his son. Instead, the State could only point to the probation officer s best investigative skills, which led her to believe that Defendant and his son were taking a nap 9 in the same bed and whatever that leads to. (Emphasis added.) According to the State, the trial court therefore ha[d] the right to assume the worst, which was that [Defendant] now maybe [sic] molesting his son, and impose the additional sex offender terms of probation. The State argued that, on the basis of the probation officer s beliefs, the officer and the court had the authority to prohibit Defendant from having any contact with any child whatsoever. ¶19 Although directive went the beyond trial the court scope found of the that the negotiated written terms of probation and therefore found that Defendant had not violated his probation, the court appears to have found justification for modifying Defendant s attitude, defiance which of the the probation court probation because of characterized as officer s Defendant s son and male minors. Defendant s a directives This was error. kind of regarding There was nothing in the record that Defendant violated the terms of his probation or otherwise did anything that could constitute a reasonable basis for modifying the terms of his probation. The probation officer thus lacked the authority to impose the additional onus of special condition. the directive or any other sex offender Accordingly, Defendant s refusal to comply with the officer s directives cannot be grounds to modify his probation. 10 ¶20 In support of the addition of special sex offender terms, the probation officer s request for modification cites the fact that the Pre-Sentence Investigation indicates that the underlying offenses in this case were sexually motivated. But this is not new information or a new event that supports modification. The fact that Defendant s offenses were sexually motivated was well known to the State and the trial court at the time the terms of the plea agreement were negotiated accepted, when the terms of probation were imposed. and In fact, at the change of plea hearing, the judge who presided over the trial specifically remarked that he would considered imposing sex offender registration. otherwise have Therefore, had the trial court believed that the terms of the plea agreement were unacceptable or inadequate to properly supervise defendant and protect the public, the court was free to either reject the plea agreement therein. altogether or reject any specific accepted Ariz. R. Crim. P. 17.4(d) and (e). the plea agreement and its provision However, having stipulations in their entirety, the court had no authority to thereafter modify the conditions of probation without reasonable basis for doing so. evidence giving rise to a Burton, 27 Ariz. App. at 800, 558 P.2d at 995. ¶21 On appeal the State concedes that the trial court exceeded its authority when it ordered sex offender registration 11 despite the plea agreement s specific agreement that it was not required. The State suggests, however, that we should uphold the trial court s imposition of the other provisions of the sex offender special conditions. We decline to do so. Because we find no reasonable basis in the record for any modification, the addition of any unwarranted. of the sex offender special conditions was Id. CONCLUSION ¶22 order For the foregoing reasons, we vacate the trial court s modifying probation to add the the terms sex and conditions offender special of Defendant s conditions probation. /S/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ____________________________________ JON W. THOMPSON, Judge /S/ ____________________________________ DIANE M. JOHNSEN, Judge 12 of
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