State v. Flemming
| Decision Date | 05 December 1995 |
| Docket Number | No. CR-94-0428-PR,CR-94-0428-PR |
| Citation | 184 Ariz. 110,907 P.2d 496 |
| Parties | STATE of Arizona, Appellee, v. Craig Richard FLEMMING, Appellant. |
| Court | Arizona Supreme Court |
Defendant's probation was revoked in a Maricopa County case and he was sentenced to two years imprisonment to be served consecutively to sentences he was serving in a Pinal County case. In a published opinion, the court of appeals rejected defendant's argument that he should not have been found to be in "automatic" violation of his probation because Rule 27.7(e), Ariz.R.Crim.P., which permits such findings, did not apply to his case. See State v. Flemming, 182 Ariz. 239, 240, 895 P.2d 1002, 1003 (App.1994). The court of appeals also rejected defendant's argument that the petition to revoke should have been dismissed because of untimely prosecution. Id. at 242, 895 P.2d at 1005. We granted review to consider the propriety of those two rulings by the court of appeals. We have jurisdiction pursuant to Ariz. Const art. VI, § 5(3), and Ariz.R.Crim.P. 31.19. We reverse.
On December 5, 1988, Craig Flemming, the defendant, pled guilty in Maricopa County Superior Court to attempted robbery. Flemming had attempted to rob a Thrifty drugstore of about $130 by snatching the cash from the register as the cashier opened the drawer. The court suspended imposition of sentence and placed defendant on probation for three years. While on that Maricopa County probation, Flemming was arrested in Pinal County in November 1990, on various charges involving the sale and possession of marijuana.
Based upon his arrest in Pinal County and his failure to pay a monthly probation fee, the Maricopa County Probation Department filed a petition to revoke Flemming's probation, and the Maricopa court issued a warrant for his arrest on December 3, 1990. No action was taken on the petition or the warrant by the state, the court, the prosecutor, or the probation office at that time.
Because of Flemming's status as a probationer, he was held in the Pinal County jail without bond pending resolution of his Pinal County charges. On October 21, 1991, some eleven months after his arrest, defendant pled guilty to two of the Pinal County charges, agreeing to stipulated sentences in return for certain concessions by the state. The Pinal County trial judge who took the plea made sure Flemming understood that the plea could be used against him in a probation violation hearing in Maricopa County and that he could receive a consecutive sentence at that hearing. Flemming asked the court when the proceedings on the probation violation would take place, but the judge did not know. Flemming's lawyer indicated that defendant was in "warrant status" on his "probation violation" but that proceedings had not yet been initiated. The prosecutor did not know what, if anything, had been done in Maricopa County.
Pursuant to the plea agreement, defendant was sentenced in Pinal County on November 18, 1991, to concurrent terms of seven and ten years. The presentence report reflected that defendant's Maricopa County probation officer, Elizabeth Maceo, had advised that revocation proceedings were pending defendant's return to Maricopa County and that she "anticipate[d] submitting a recommendation for a presumptive incarceration in the Arizona Department of Corrections concurrent to any sentence imposed in this matter."
Following sentencing in Pinal County, defendant was transported to the Department of Corrections to begin his prison term. Several times during his incarceration he inquired of the Department of Corrections whether there were any "holds" on him and was told that there were none. Ultimately, he became concerned that he might someday reach his parole eligibility date and find the Maricopa County charge still extant. Accordingly, on his own initiative, he filed what he described as a "speedy execution form" to bring the matter to a head. The Maricopa County Attorney's office then petitioned to bring defendant to Maricopa County on the probation violation on March 9, 1993, more than twenty-seven months after the filing of the petition to revoke and the issuance of the warrant. Three days later the Maricopa court issued an order for defendant's presence and, on March 16, 1993, the warrant was served. 1
On March 23, 1993, defendant appeared before a judge pro tempore in the Maricopa County Superior Court. No revocation arraignment was held on the petition to revoke, and no probation violation hearing was held. The judge pro tempore, the prosecutor, and the defense counsel were operating on the assumption that the Pinal County plea agreement made the violation "automatic." The only record of the Pinal County proceedings in court at that time was a copy of the plea agreement that the defendant had brought with him.
The judge pro tempore asked whether Flemming had been informed that he would be found in automatic violation of his probation. Flemming responded that he had been so informed, and that the plea agreement had been determined acceptable in part because Elizabeth Maceo, the monitoring probation officer, recommended that the probation violation run concurrent to the sentence imposed. Flemming said he was ready to proceed and would accept any sentence so long as it ran concurrently. The judge pro tempore informed Flemming that Maceo's recommendation was not binding on the court. Defense counsel asked the judge pro tempore to proceed to sentencing. Ultimately, the judge pro tempore concluded that she could not have a disposition hearing that day, and she reset it for April 6, 1993.
When defendant appeared again on April 6, it was before a different judge pro tempore. Probation officer Elizabeth Maceo was not present but was represented by another probation officer who conveyed Maceo's recommendation of a concurrent presumptive term. Although the state did not object to the recommendation, and although the pro tempore judge was advised concerning the circumstances of the delay, she nevertheless ordered consecutive sentencing, stating that she was bound to do so in the absence of evidence which
On review, the court of appeals rejected defendant's arguments that he should not have been held in automatic violation under Rule 27.7(e) and that the petition to revoke should have been dismissed for untimely prosecution. 2 We granted review to consider the correctness of those two rulings.
1. Under Rule 27.7(e), Arizona Rules of Criminal Procedure, may a superior court in one county find a defendant in automatic violation of his probation in that county based on a finding of guilt by a superior court in another county?
2. Did Maricopa County bring the probation violation proceeding to a timely resolution under Rule 27.7?
A defendant may, of course, be found in violation of his probation for committing a crime in another county. Indeed, we recognize that in many such cases defendants will admit to probation violations when they have pled to, or been found guilty of, a crime in another county. This case is not about whether a defendant may be found in violation by reason of an out-of-county crime. This case is about the procedure that is to be used for making that determination.
In the typical case, the Rules of Criminal Procedure and considerations of due process contemplate that there will be three court proceedings before a defendant's probation is revoked and he is sentenced because of a probation violation. The first court proceeding is a revocation arraignment to determine whether the defendant wishes to admit or deny the allegations of the petition to revoke. Rule 27.7(a), Ariz.R.Crim.P. Next comes the violation hearing to determine whether those defendants who have denied any violation have, in fact, violated their probation. Rule 27.7(b), Ariz.R.Crim.P. The third court proceeding is a disposition hearing, usually held after preparation of a presentence report, at which the trial judge, after listening to arguments or evidence concerning aggravation and mitigation, determines and imposes the appropriate disposition. Rule 27.7(c) Ariz.R.Crim.P.
However, Rule 27.7(e), Ariz.R.Crim.P., provides an exception to the usual procedure. It states:
If there is a determination of guilty, as defined by Rule 26.1(c) of a criminal offense by the court which placed a probationer on probation, no violation hearing shall be required and the court shall set the matter down for a disposition hearing at the time set for entry of judgment on the criminal offense.
(Emphasis added.)
In this case, the court of appeals invoked Rule 27.7(e) to dispense with the revocation arraignment and violation hearing steps of the revocation procedure and held that defendant had correctly been found to be in automatic violation of his Maricopa County probation because of his guilty plea in Pinal County. The court reasoned that because "[t]here is but one superior court in the state of Arizona," Flemming, 182 Ariz. at 241, 895 P.2d at 1004 (quoting Massengill v. Superior Court, 3 Ariz.App. 588, 591, 416 P.2d 1009, 1012 (1966)), the automatic violation provision of Rule 27.7(e) applies whenever a superior court probationer in Arizona is determined to be guilty of a new offense anywhere in an Arizona superior court.
In general, we agree with the court of appeals that there is only one superior court in the ...
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