State v. Adler

• Decision Date: 15 July 1997
• Docket Number: No. CR-96-0520-PR,CR-96-0520-PR
• Citation: 189 Ariz. 280,942 P.2d 439
• Parties: , 247 Ariz. Adv. Rep. 13 STATE of Arizona, Appellee. v. Seymour Harold ADLER, Appellant.
• Court: Arizona Supreme Court

Page 439

942 P.2d 439

189 Ariz. 280, 247 Ariz. Adv. Rep. 13

STATE of Arizona, Appellee. v. Seymour Harold ADLER, Appellant.

No. CR-96-0520-PR.

Supreme Court of Arizona.

July 15, 1997.

[189 Ariz. 281] Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, Dawn M. Northup, Assistant Attorney General, Phoenix, for Appellee.

Dean W. Trebesch, Maricopa County Public Defender by Lawrence S. Matthew, Deputy County Public Defender, Phoenix, for Appellant.

OPINION

MOELLER, Justice.

FACTS AND PROCEDURAL HISTORY

In 1987, Seymour Harold Adler ("defendant") pled guilty in Maricopa County Superior Court to seven counts of sale of unregistered securities, all class four felonies. The court placed defendant on probation for four years and probation authorities permitted defendant to move to California, expecting that he would be supervised by California authorities under the Interstate Compact Agreement. California authorities rejected supervision of defendant on October 29, 1987, but Arizona probation officials were unaware of the rejection until June 16, 1988. ¹ On July 15, 1988, defendant's probation officer filed a petition to revoke defendant's probation and the trial court issued a warrant for defendant's arrest. The petition alleged that defendant had violated his probation by failing to do the following: report to his probation officer from March through July, 1988; cooperate in the Interstate Compact program; notify the probation officer of changes in his employment status; obtain approval from his probation officer before changing his place of residence; and pay his probation fee of $30 per month.

The state made no effort to proceed with the probation revocation hearing in absentia. In 1990, almost two years after the petition to revoke probation was filed, Arizona probation officials were notified that defendant was arrested in Seattle on federal charges arising out of conduct that occurred before defendant was convicted in Arizona. Defendant pled guilty to the new charges and received a federal prison sentence. On December 16, 1991, from the federal prison, defendant filed a motion for speedy trial in his probation violation case or, in the alternative, for final disposition in absentia. ² The state responded by letter to the defendant that it could not obtain custody of defendant until after he had completed his federal sentence; therefore, defendant would have to wait until his federal sentence was completed before obtaining a hearing on the probation violation charges. After this exchange, defendant made additional efforts to obtain a hearing while he was in federal custody. The state, again by letter to the defendant, told him it would not initiate any proceeding to obtain custody of him because it had no legal obligation to do so. Notwithstanding, the state did obtain a writ of habeas corpus ad prosequendum to seek custody of defendant, but made no attempt to serve it.

On October 12, 1994, more than six years after the petition to revoke had been filed defendant moved to dismiss the petition, arguing that the lengthy delay by the state violated his constitutional right to due process of law. This motion was denied. The trial court held defendant's probation revocation hearing on January 6, 1995, at which time defendant appeared telephonically from the federal prison in Arizona and defendant's counsel was present in chambers. After the hearing, the trial court found that defendant violated his probation and set a date for the disposition hearing. Defendant, through counsel, requested that his sentence run concurrently with his federal sentence or that his sentence be ordered to begin as of the date defendant filed his motion for a speedy hearing. On January 27, 1995, with defendant again appearing telephonically, the trial court revoked defendant's probation and sentenced him to four years imprisonment on each count, to run concurrently with each other but consecutive to the federal sentence. Defendant appealed. The court of appeals affirmed the judgment of the trial court, finding "no constitutional basis for dismissing the petition to revoke." State v. Adler, 187 Ariz. 572, 575, 931 P.2d 1082, 1085 (App.1996). Judge Grant dissented, finding that the delay was unreasonable and violated defendant's due process rights. Id. (Grant, J., dissenting). Defendant petitioned this court for review. We have jurisdiction pursuant to Arizona Constitution article VI, section 5(3), and Arizona Rule of Criminal Procedure 31.19. Finding ourselves in agreement with Judge Grant's dissent, we vacate the opinion of the court of appeals and remand the case to the trial court for dismissal.

QUESTION PRESENTED

Whether defendant's due process rights were violated by the delay in his probation revocation proceedings.

DISCUSSION

I. Introduction

A person whose probation is subject to revocation is protected by the Due Process Clauses of the Fifth and Fourteenth Amendments and is entitled to a revocation hearing. Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973). The hearing must be held within a reasonable time. See id.; Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 2602, 33 L.Ed.2d 484 (1972). Federal courts have held that revocation of probation after unreasonable delay is an abuse of discretion. See, e.g., United States v. Hamilton, 708 F.2d 1412, 1415 (9th Cir.1983) (three-year delay unreasonable). The purpose of providing a timely hearing is to hold the proceeding "while information is fresh and sources are available." Morrissey, 408 U.S. at 485, 92 S.Ct. at 2602. We turn, then, to a discussion of the factors and authorities that lead us to conclude that defendant's rights were violated.

A. Reason for the delay

The state argues that it was neither required nor authorized to obtain custody of the defendant for the purpose of holding a probation revocation hearing. In a letter from the county attorney to defendant's attorney, the county attorney stated, "Maricopa County would not initiate the extradition of Mr. Adler on his probation revocation warrant because there is no legal requirement that we do so. This decision is also based on the cost factor." Letter from Richard Mesh, Maricopa County Attorney, to Louis Katz, defendant's attorney, June 20, 1994.

Although the Interstate Agreement on Detainers did not authorize the state to obtain defendant for a probation revocation hearing, the state could have sought defendant's presence through a writ of habeas corpus ad prosequendum. See 28 C.F.R. §§ 527.30-.31. "It is generally true that the state may use a writ of habeas corpus ad prosequendum to return the accused to the county where charges have been filed." State v. Loera, 165 Ariz. 543, 545, 799 P.2d 884, 886 (App.1990). The state, in fact, procured such a writ from the state court but never served it or requested it to be honored. The only reason the state gave for failing to make such a request was that the federal warden has discretion as to whether the writ will be honored. We fail to see how the fact that the warden might have refused to comply with the request excuses the state's failure to make the request, particularly in light of defendant's request for a timely hearing.

B. Proceeding in absentia

At any time after the filing of the petition to revoke until the state learned that the defendant was in federal custody, the state could have proceeded in absentia. See Ariz. R.Crim. P. 27.9(b); ³ State v. Bly, 120 Ariz. 410, 412, 586 P.2d 971, 973 (1978). If good faith efforts had been made to locate and notify defendant in 1988, the probation officer could have petitioned the court to revoke defendant's probation in absentia sixty days after his whereabouts became unknown. See Ariz. R.Crim. P. 27.9. The sentencing, however, would have waited until defendant was present. See Bly, 120 Ariz. at 413, 586 P.2d at 974; see also State v. Fettis, 136 Ariz. 58, 59, 664 P.2d 208, 209 (1983) (holding that a defendant could not be sentenced in absentia, absent exceptional circumstances); Ariz. R.Crim. P. 26.9. Had the state proceeded in absentia, defendant could have been sentenced when he went into federal custody in 1990, either by securing his presence in state court by use of a writ or in the manner in which he was finally sentenced in 1995.

After defendant was in federal custody, he requested a prompt hearing and offered to waive his right to be present in his "Motion for Speedy Trial or the Alternate [sic] Defendant's Request for Final Disposition in Absentia" of December 16, 1991. The state did nothing and the hearing did not take place until January 6, 1995, more than three years after defendant made his request.

When the hearing and sentencing were finally held, the defendant appeared telephonically rather than in person. This could have been accomplished three years earlier when defendant initially requested a speedy disposition. Although defendant, in his 1991 motion, did not specifically offer to appear telephonically, he offered to waive his presence entirely. As Judge Grant noted in her dissent, "Clearly, the leap from full waiver of presence to a waiver of physical presence is not a long one. The state's claim that it did not consider allowing Defendant to be present telephonically because Defendant did not specifically ask for a telephonic hearing is meritless." State v. Adler, 187 Ariz. 572, 577, 931 P.2d 1082, 1087 (App.1996) (Grant, J., dissenting). The state is familiar with telephonic proceedings. It participates in such hearings with defendants involved in the Probation Reconciliation Program. The state could have had defendant appear telephonically when defendant made his initial request for a hearing.

C. State v. Flemming

The court of appeals sought to distinguish State v. Flemming, 184 Ariz. 110, 907 P.2d 496 (1995), from the present case. In Flemming, the defendant was arrested on new charges in Pinal...