State v. Bradley
| Decision Date | 07 September 1993 |
| Docket Number | No. CR-92-0460-PR,CR-92-0460-PR |
| Citation | 858 P.2d 649,175 Ariz. 504 |
| Parties | STATE of Arizona, Appellee, v. Kevin Lee BRADLEY, Appellant. |
| Court | Arizona Supreme Court |
We are asked to decide whether a criminal offender placed on intensive probation supervision conditioned on shock incarceration may be sentenced to prison after having been found ineligible for the shock incarceration program. We hold that he may.
Kevin Lee Bradley was placed on probation for two class 2 felony convictions. He violated the terms of his probation and, after hearing, the trial court placed him on intensive probation supervision with the condition that he participate in the shock incarceration program established by A.R.S. § 13-915. Pursuant to § 13-915(A), Bradley was incarcerated in the department of corrections for eligibility screening for the shock incarceration program. The department discovered that Bradley had previously served a prison term and was thus, ineligible for the program. 1 He was, therefore, returned to the superior court for further disposition. Section 13-915(A). Another hearing was held. The trial court vacated its previous order and, because shock incarceration was unavailable, sentenced Bradley to prison.
The court of appeals vacated this sentence on appeal. It held that the trial court could not resentence Bradley absent a finding that he violated the terms of his probation. Instead, it held that the trial court could only modify the conditions of that probation. A finding of ineligibility is, of course, not a violation of a term of probation. It is, though, a failure of a condition of probation. We granted the state's petition for review and now vacate the decision of the court of appeals and affirm the trial court.
The court of appeals relied upon Nieuwenhuis v. Kelly, 164 Ariz. 603, 795 P.2d 823 (App.1990), for the proposition that an offender found ineligible for shock incarceration may not be sentenced to prison or even subjected to harsher probation conditions absent a finding that he or she violated probation. See also State v. Gatlin, 171 Ariz. 418, 831 P.2d 417 (App.1992) (). Nieuwenhuis acknowledged that a violation of probation is not a necessary precondition to the court's power to modify probation terms, but assumed that once placed on probation, it is final, absent violation, even if a precondition to probation fails. 164 Ariz. at 606, 795 P.2d at 826. We disagree.
Section 13-915(A) states that:
the court may order that an offender who is granted a period of intensive probation and who meets all of the criteria in subsection B of this section shall be incarcerated in the state department of corrections for a period of not to exceed forty-five days for the purpose of eligibility screening for the shock incarceration program. If determined eligible the offender shall complete as a condition of intensive probation a program of incarceration in a special shock incarceration unit ... for a period of one hundred twenty days.... If determined ineligible the offender shall be returned to the court for further disposition.
(Emphasis added.) It is thus understood that some offenders will be found ineligible to participate in the shock incarceration program. In such an event, the offender is returned to the trial court for "further disposition." The most common sense understanding of this language is that the sentencing process is back to "square one," as the trial court assumed in this case. 2
A person can only be placed on intensive probation if the court first suspends the imposition or execution of sentence under A.R.S. § 13-901(A). And, under § 13-915(A), it may further condition intensive probation upon the person's eligibility for and completion of incarceration in a special shock unit of the department of corrections. This is a military style program designed for youthful offenders "in an attempt to shock the youth with a preview of prison life." Section 13-915(G). By definition, if the person is not eligible, the condition of shock incarceration cannot be satisfied, and if that condition cannot be satisfied, the condition for intensive probation itself fails. Thus, the trial court is back to ground zero and must then decide, ab initio, an appropriate disposition. Intensive probation without shock might be indicated. Or, it might not. The judge may have conditioned probation on shock as an alternative to prison--not probation. The statutory language "shall be returned to the court for further disposition" is broad enough to include a continuation of the suspension of sentence (which preceded probation) or sentencing itself. Thus, the court has the power to sentence unconditionally or conditionally, and, therefore, may sentence the person to prison, or place him on intensive probation supervision with revised terms.
This reading furthers the purpose of the shock incarceration program, which is a last ditch effort to keep youthful offenders out of...
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State v. Rogers
...review cases are decided without oral argument and without additional briefs. For recent examples, see, e.g., State v. Bradley, 175 Ariz. 504, 858 P.2d 649 (1993) (CR-92-0460-PR); State v. Arana, 173 Ariz. 370, 843 P.2d 652 (1992) (CR-92-0193-PR) (both authored by the The rules permit, but ......
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State v. Nelson
...Nieuwenhuis v. Kelly, 164 Ariz. 603, 606, 795 P.2d 823, 826 (App. 1990), disagreed with on other grounds by State v. Bradley, 175 Ariz. 504, 858 P.2d 649 (1993). The evidence presented at that hearing "must establish a reasonable basis for the modification and, if an additional burden is im......