State v. Gatlin
| Decision Date | 23 April 1992 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 831 P.2d 417,171 Ariz. 418 |
| Parties | STATE of Arizona, Appellee, v. Nathaniel Nathan GATLIN, Appellant. 90-1394. |
| Court | Arizona Court of Appeals |
Nathaniel Nathan Gatlin ("appellant") was convicted on his pleas of guilty to one count of conspiracy to sell narcotic drugs, a class 2 felony, and one count of possession of narcotic drugs, a class 6 felony. Appellant was sentenced to five years intensive probation on the conspiracy count and to four years intensive probation on the possession count, with the sentences to be served concurrently. Appellant was ordered to serve one year incarceration in the Maricopa County Jail as a condition of probation. Appellant challenges this latter provision of his sentences.
On February 2, 1990, appellant was indicted on two counts of possession of a narcotic drug for sale, class 2 felonies, and one count of possession of marijuana, a class 6 felony. Appellant entered a plea agreement whereby he pled guilty to one count of conspiracy to sell narcotic drugs and one count of possession of narcotic drugs. The plea agreement provided that there was no agreement as to sentencing except that if appellant was granted probation, he would be required to serve one year, flat time, in the county jail. At sentencing, the court announced its intention to order shock incarceration and that such an order was a deviation from the terms of the plea agreement. Appellant and defense counsel acquiesced to the court's proposal. The State voiced no objection to the deviation from the plea agreement. The court then placed appellant on intensive probation and ordered him to complete the 120-day shock incarceration program at the Department of Corrections, pursuant to Ariz.Rev.Stat.Ann. ("A.R.S.") § 13-915. The terms of probation as then imposed contained no provision requiring appellant to serve any county jail time. The sentencing judge advised appellant that should he be ineligible for the shock incarceration program or fail to complete it for any reason, he would be returned to court for resentencing.
Appellant failed to qualify for the shock incarceration program due to a medical disability. The trial court ordered a resentencing hearing at which time it formally found appellant ineligible for the shock incarceration program. Appellant's probation terms were modified to require that he serve one year, flat time, in the county jail, as set forth in the plea agreement.
At the resentencing hearing, appellant did not object to the modification of the terms of probation. Appellant's only objection was the assertion that the beginning date of his jail time should be his arrest date rather than the initial sentencing date. Following resentencing, appellant timely filed this appeal. The only issue raised on appeal is whether the trial court erred when it sentenced appellant to one year jail time after he failed to qualify for the shock incarceration program.
The State argues that appellant's claim is waived by his failure to make an objection at the resentencing hearing. In support of its position, the State relies upon State v. Clabourne, 142 Ariz. 335, 690 P.2d 54 (1984). In Clabourne, the court stated that "a party's failure to make a timely objection to a sentencing procedure waives that point for appeal." Id. at 346, 690 P.2d at 65; see State v. Bailey, 120 Ariz. 399, 402, 586 P.2d 648, 651 (App.1978). Even though a defendant fails to make an objection at sentencing, this court is still required to search the record for error so fundamental that it prejudices the defendant. A.R.S. § 13-4035; State v. Marquez-Sosa, 161 Ariz. 500, 502, 779 P.2d 815, 817 (App.1989).
We believe the issue before us to be more than a challenge to a sentencing procedure. We deem the question of the trial court's authority to impose the length of sentence ordered herein to impact upon appellant's right to liberty. The right of personal liberty has been declared to be "a fundamental interest, second only to life itself, as an interest protected under both [state] and United States Constitutions." In Re Roger S., 19 Cal.3d 921, 141 Cal.Rptr. 298, 569 P.2d 1286, 1289 (1977). We, therefore, address the issues raised by appellant.
Appellant argues that the trial court improperly modified the terms of appellant's probation by imposing one year flat jail time after appellant was denied, due to medical reasons only, admission into the 120-day shock incarceration program. Appellant contends that because the 365 days of incarceration in the county jail greatly exceed the 120 days he would have spent in the shock incarceration program, the sentence of one year jail time impermissibly imposes an increased burden upon him. Appellant argues that in order to increase his burden, "there must be a finding that [he] violated the terms of probation." See Nieuwenhuis v. Kelly, 164 Ariz. 603, 606, 795 P.2d 823, 826 (App.1990). Appellant argues that he merely was ineligible for the shock incarceration program, not a violator of his probation terms.
In 1988, the Arizona legislature passed A.R.S. § 13-915, commonly referred to as the shock incarceration program. Subsection (A) states in part:
If determined eligible the offender shall complete as a condition of intensive probation a program of incarceration in a special shock incarceration unit of the state department of corrections under the department's care and custody for a period of one hundred twenty days from the time of initial incarceration in the unit. If determined ineligible the offender shall be returned to the court for further disposition.
(Emphasis added.) We read section 13-915 in conjunction with section 13-914. Section 13-914(C) states that intensive probation is a tentative sentence which can be revoked or altered by the court. This reading of §§ 13-914 and 13-915 appears to be
in harmony with the trial court's general authority to modify probation. A.R.S. § 13-901(C) gives trial courts the authority to 'modify or add to the conditions [of probation]....' Rule 27.2 provides that '[t]he sentencing court may modify any condition which it has imposed and any regulation imposed by a probation officer.' ... [A] trial court clearly has authority to modify probation, even outside the scope of a revocation proceeding.
Nieuwenhuis v. Kelly, 164 Ariz. at 605-06, 795 P.2d at 825-26 (citation omitted).
The issue of modifying terms of probation in the context of court-ordered shock incarceration was addressed in Nieuwenhuis. There, defendant was sentenced to a three-year term of intensive probation. As a condition of probation, defendant was required to complete the shock incarceration program. He failed to qualify for the program due to medical reasons. At resentencing, the trial judge modified defendant's sentence to include an additional term of ninety days jail time. Defendant appealed claiming, inter alia, that this additional jail term was an impermissible increased burden. The court held otherwise, comparing what he would have served through the 120-day shock incarceration program and what he actually had to serve (i.e., ninety days in jail). Because the jail time involved fewer incarceration days than the shock incarceration program, the court found no increased burden and hence no abuse of the trial court's authority to modify probation terms. Id. at 606, 795 P.2d at 826.
In the case before us, we must decide whether the court, at time of resentencing, may impose a longer period of county jail incarceration than would be served under the shock incarceration program. The transcript reveals the trial court's desire to give appellant "a chance." Yet this chance was conditioned upon appellant being admitted to and completing the shock incarceration program. The trial judge explicitly stated that appellant would return for resentencing if appellant proved ineligible for, or failed to complete, the shock incarceration program. At sentencing, the judge stated:
I figure, in...
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Ryan v. State
...that a prisoner has a liberty interest in the duration of his sentence and the procedures used to impose it. State v. Gatlin, 171 Ariz. 418, 420, 831 P.2d 417, 419 (App. 1992) (stating defendant had a liberty interest in the trial court's authorityto impose length of sentence); Stewart v. A......
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...a reasonable doubt. Viramontes did not raise these issues below and thereby waived all but fundamental error. State v. Gatlin, 171 Ariz. 418, 420, 831 P.2d 417, 419 (App.1992). ¶ 5 The trial court is not required to state its reasons for choosing between a sentence of natural life and life ......
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