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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) Appellant, ) ) v. ) ) TROY JASON LEWIS, ) ) Appellee. ) ) ) ) ) __________________________________) Arizona Supreme Court No. CR-10-0211-PR Court of Appeals Division One No. 1 CA-CR 09-0127 Apache County Superior Court No. CR2003-112 O P I N I O N Appeal from the Superior Court in Apache County The Honorable Donna J. Grimsley, Judge AFFIRMED ________________________________________________________________ Opinion of the Court of Appeals, Division One 224 Ariz. 512, 233 P.3d 625 (App. 2010) AFFIRMED ________________________________________________________________ MICHAEL B. WHITING, APACHE COUNTY ATTORNEY St. Johns By Martin Brannan, Chief Deputy County Attorney Attorneys for State of Arizona LAW OFFICE OF EMILY DANIES Tucson By Emily L. Danies Attorney for Troy Jason Lewis ________________________________________________________________ H U R W I T Z, Vice Chief Justice ¶1 A term of probation may be terminated at a time earlier than that originally imposed if in the court s opinion the ends of justice will be served and if the conduct of the defendant on probation warrants it. A.R.S. § 13-901(E) (2010).1 We granted review in this case to determine whether a court may terminate probation despite a defendant s failure to complete all required community service and pay all outstanding fees and fines. I. ¶2 In 2003, Troy Jason Lewis pleaded guilty to possession of a dangerous drug for sale. The superior court placed him on probation for five years and ordered him to perform forty hours per month of community service and pay $5400 in fines and fees. ¶3 While methamphetamine violation. inpatient on three probation, times Lewis and tested was positive incarcerated for for each After the third violation, Lewis was placed in an rehabilitation program for 180 days. Lewis successfully completed the program and has remained drug-free. Lewis completed vocational employed for several years. training and has been steadily He has married, has two children, and regularly attends church. ¶4 13, 2008. Lewis s term of probation was to expire on September His probation officer petitioned for termination of probation on September 3, 2008. The petition noted that Lewis had not completed all required community service and had not                                                              1 We cite the current version of the statute because it has not been materially revised since the events that gave rise to this case. 2 paid all outstanding fees and fines, but nonetheless recommended unsuccessful termination and the entry of a civil judgment for the remaining fees and fines. petition to revoke The State objected and filed a probation. Between October 2008, Lewis paid most of the delinquent fines. and December On December 4, 2008, his probation officer reported to the court that Lewis had completed 347 hours of community service, appeared sincere in his desire to improve his life, and opined that continued probation would be of little benefit. ¶5 At a disposition hearing on December 8, 2008, Lewis addressed the court and unpaid fines and fees. received finding letters that of Lewis acknowledged for the The trial court noted that Lewis had support had responsibility from neither the paid community. all required Although fines nor completed all required community service, the court nonetheless decided to terminate probation, stating: Mr. Lewis, I tend to agree with you that probation is designed for rehabilitation, and I m not certain that there s anything that probation can assist you with at this point in time to complete any rehabilitative process. It seems that those efforts have been made, and I don t think we re going to get better by keeping you on probation. Therefore, I am going to follow the recommendation. I will unsuccessfully terminate your probation today because there s . . . an outstanding amount, and that will be entered as a judgment against you. 3 ¶6 The State appealed. A divided court affirmed the termination of Lewis s probation. of appeals State v. Lewis, 224 Ariz. 512, 513 ¶ 1, 233 P.3d 625, 626 (App. 2010). Judge Hall dissented, arguing that § 13-901(E) does not authorize a trial court to grant early release to a defendant performance while on probation has been unsatisfactory. whose Id. at 517 ¶ 27, 233 P.3d at 630 (Hall, J., dissenting). ¶7 We granted statewide importance. review to resolve a See ARCAP 23(c)(3). recurring issue of We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003). II. A. ¶8 The trial court s power to grant probation is not inherent but is derived from . . . statutory authority. State v. Carter, 116 Ariz. 595, 597, 570 P.2d 763, 765 (1977). The legislature also has plenary power to determine when probation may be terminated. It has done so in § 13-901(E), which provides: The court, on its own initiative or on application of the probationer, after notice and an opportunity to be heard for the prosecuting attorney and, on request, the victim, may terminate the period of probation or intensive probation and discharge the defendant at a time earlier than that originally imposed if in the court's opinion the ends of justice will be served and if the conduct of the defendant on probation warrants it. 4 See also Ariz. R. Crim. P. 27.4(a) ( At any time during the term of probation, upon motion of the probation officer or on its own initiative, the court, after notifying the prosecutor, may terminate probation and discharge the probationer absolutely as provided by law. ). ¶9 Section 13-901(E) vests trial discretion to terminate probation. that the statute did not courts with broad The State argues, however, authorize the superior court to terminate Lewis s probation because he was unsuccessful that is, he had neither completed all required community service nor paid all fines within the five-year probation period. cites Arizona Rule of Criminal Procedure The State 27.8(c)(2), which provides that [u]pon a determination that a violation of a condition or regulation of probation occurred, the court may revoke, modify or continue probation, and argues that the superior court was limited to these three options. ¶10 Because the criteria for probation eligibility are a substantive Criminal matter Procedure directives. determined cannot by the directly legislature, conflict with Rules of statutory See Ariz. Const. art. 6, § 5(4) (giving this Court [p]ower to make rules relative to all procedural matters in any court ); Seisinger v. Siebel, 220 Ariz. 85, 92 ¶ 26, 203 P.3d 483, 490 (2009) ( [O]nce we determine that a statute conflicting 5 with a court-promulgated rule is substantive, the statute must prevail. ). Thus, if Rule 27.8(c)(2) were read to prohibit a court from terminating probation despite its conclusion that the ends of justice will be served . . . and the conduct of the defendant on probation warrants it, A.R.S. § 13-901(E), the Rule would exceed this Court s rule-making powers. ¶11 But, as the court of appeals noted, there is inherent tension between Rule 27.8(c)(2) and § 13-901(E). Lewis, 224 Ariz. at 515 ¶ 18, 233 P.3d at 628. no See The Rule simply recites options available to the trial court when a defendant violates the terms of probation. But the legislature provided another option under certain limited circumstances. has If the superior court finds that, notwithstanding the defendant s failure to complete all terms of probation successfully, he has nonetheless rehabilitated himself and no good purpose will be served by further probation, § 13-901(E) provides the judge with the discretion to terminate the probation. ¶12 Citing State v. Moore, the State argues that § 13- 901(E) does not grant authority to terminate probation that is unsuccessfully completed. 481 (App. 1986). successfully But completed 149 Ariz. 176, 177, 717 P.2d 480, technically, until it no term expires. of Thus, probation the is State s broad reading of Moore would vitiate § 13-901(E) by disallowing early termination. 6 ¶13 But more importantly, Moore does not stand for the proposition advanced by the State. Moore expressly recognized that the trial court may terminate probation under § 13-901(E) when the ends of justice will be served and the defendant s conduct so warrants. Id. The court then correctly explained that, by its terms, § 13-901(E) allows termination only if the defendant s conduct is such as to indicate rehabilitation. The Moore court s dictum that the statute does not Id. allow termination when probation is unsuccessfully completed simply reinforces the termination, the legislative mandate trial must court that find that before the ordering defendant s conduct on probation was such as to demonstrate rehabilitation.2 C. ¶14 court The court of appeals thus correctly held that a trial may terminate probation under § 13-901(E) defendant has not completed all terms of probation. when the To be sure, such a failure will typically indicate that the defendant is not                                                              2 The State also relied below on State v. Hensley, which stated that once the court finds that a defendant has violated probation, its only options are to revoke, modify, or continue the terms of probation. 201 Ariz. 74, 79 ¶ 21, 31 P.3d 848, 853 (App. 2001). But, as the opinion below noted, Hensley interpreted A.R.S. § 13-901.01(E), which requires a court to impose new probationary terms when a person violates the terms of probation for a conviction for personal possession or use of a controlled substance. Lewis was convicted of possession for sale and § 13-901.01(E) does not apply to his case. See Lewis, 224 Ariz. at 515 ¶ 16 n.6, 233 P.3d at 628 n.6. 7 sufficiently rehabilitated to deserve termination, or, in the words of the statute, that neither the ends of justice nor the conduct of termination. the But, defendant in an on probation appropriate justify case, the early statute authorizes the trial court to terminate probation even if a probationer has been unsuccessful in fulfilling all conditions of probation within the original term. ¶15 The trial court here did not abuse its discretion in terminating probation. See State v. Patel, 160 Ariz. 86, 89, 770 P.2d 390, 393 (App. 1989) (reviewing early termination of probation for abuse of discretion). recommended after early termination, completing rehabilitation. the and inpatient Section The probation officer had Lewis s exemplary program 13-901(E), which conduct demonstrated expressly his allows termination decisions to be based on the opinion of the trial court, entrusts broad discretion to the judges most able to determine the situation of a particular defendant in deciding whether sufficient termination. rehabilitation has occurred to warrant The judge here had ample evidence from which she could so conclude. The court s conclusion that the ends of justice would not be defendant who had already served by continuing completed 8 on hundreds probation of hours a of community service and paid most of his fines and fees was well within its statutory discretion.3 ¶16 Nor was continuing probation necessary payment of Lewis s outstanding fines and fees. is required terminated, to enter affirming a the civil judgment obligation of probation defendant outstanding costs, fees, fines, and restitution. 805(A)(1), (A)(2) (2010). ensure The trial court when a to to is pay A.R.S. § 13- The superior court appropriately did so here. III. ¶17 For the foregoing reasons, we hold that § 13-901(E) permits a court to terminate the probation of a defendant who has not completed all required community service or paid all outstanding fines and fees if the statutory prerequisites are met. We also hold that the superior court did not abuse its discretion in finding that the interests of justice and Lewis s conduct while probation. on probation warranted termination of his We therefore affirm the opinion of the court of appeals and the order of the superior court.                                                              3 We encourage trial judges to make a record of their reasons for concluding that termination of probation is appropriate under § 13-901(E) when the defendant has failed to satisfy all conditions of probation. Such a record serves to ensure compliance with the statutory requisites and facilitates appellate review. 9 _______________________________________ Andrew D. Hurwitz, Vice Chief Justice CONCURRING: ___________________________________ Rebecca White Berch, Chief Justice ___________________________________ W. Scott Bales, Justice ___________________________________ A. John Pelander, Justice   10