State v. Perkins, 1
| Decision Date | 01 December 1988 |
| Docket Number | No. 1,CA-CR,1 |
| Parties | STATE of Arizona, Appellee, v. Joseph Patrick PERKINS, Jr., Appellant. 88-110. |
| Court | Arizona Court of Appeals |
Appellant/defendant, Joseph Patrick Perkins, Jr., appeals from his conviction for driving while intoxicated (DWI) with two prior DWI misdemeanor convictions within the last 60 months, a class 5 felony, and from the imposition of intensive probation. The main issue on appeal is whether the trial court should have advised defendant, prior to accepting his guilty plea, of the possibility of intensive probation and that the terms could include a period of combined incarceration and restriction to his residence that would exceed the maximum prison sentence for the offense. Defendant contended in the trial court that the imposition of intensive probation violated the terms of his plea agreement, and contends on appeal that the trial court's failure to advise him of the terms of intensive probation rendered his guilty plea involuntary.
By indictment dated August 20, 1987, defendant was charged with Count I, DWI with two prior DWI convictions, a class 5 felony, and Count II, second degree escape, a class 5 felony. The state filed an allegation of the dangerous nature of the felony. These charges arose out of an incident on June 17, 1987, when a highway patrol officer stopped defendant's vehicle for speeding in a Chandler residential area. He subsequently determined that defendant was intoxicated and that his driver's license had been suspended for three prior DWI convictions. The officer handcuffed defendant and placed him in the front seat of the patrol car. While the officer inventoried defendant's car in preparation for towing, defendant, still handcuffed, escaped. Defendant turned himself in the next day and was arrested for felony DWI, felony escape, and reckless driving.
On November 13, 1987, defendant entered into a plea agreement in which he agreed to plead guilty to DWI, a class 5 felony. In return, the state agreed to dismissal of Count II, the allegation of dangerousness, and all other charges arising out of the DPS departmental report. The agreement clearly indicated the statutory range of sentencing for the offense: a minimum of 1 year, a presumptive of 2 years, and a maximum of 2.5 years. The agreement also disclosed the special conditions of sentencing, including that defendant would serve six months flat time with the Department of Corrections, and that his driving privileges would be revoked. The parties also stipulated to the following additional terms, subject to court approval at the time of sentencing:
The defendant shall be placed on probation for 3 years & serve 6 months in Dept. of Corrections. He shall pay restitution in an amount not to exceed $100.00. No other agreements.
On November 13, 1987, at the change of plea hearing, the trial court addressed defendant personally, in the presence of defense counsel, and determined that the guilty plea was knowing, voluntary, intelligent, and had a factual basis. Regarding sentencing, the trial court advised defendant as follows:
THE COURT: ... You can be placed on probation. Even if you are placed on probation, you have to do six flat months, that is, six months, day for day, six calendar months with the Department of Corrections.
................................................................................
* * *
You've got an agreement with the State that says you will be placed on probation for three years, and you will serve six months in the Department of Corrections, and you will pay restitution in an amount not to exceed $100.00, and that there are no other agreements.
Do you understand all that?
Do you understand that?
Do you understand that?
THE DEFENDANT: Yes.
The court accepted the plea, and postponed judgment and sentencing to permit preparation of a presentence report.
At time of sentencing, the trial court indicated that it had considered the recommendations in the presentence report. Defense counsel objected to those recommendations as follows:
The court then suspended the imposition of sentence for a period of three years and placed defendant on probation, after stating the following reasons, as required by A.R.S. § 12-292(D):
The reasons for that are I think there is a need for supervision in your case. I think probation is appropriate rather than prison in your case, because it does seem that you are an industrious person. You have had steady employment history and good job skills, and it would be--sending you to prison would not be appropriate in light of the fact that it appears that you have got a good chance to complete probation successfully and do something with yourself.
So I am going to place you on probation, but it is going to be intensive probation because there is the need for maximum supervision based upon your problems [with alcohol and driving].
The terms of intensive probation included a prison term of six months with the Department of Corrections, payment of restitution in the amount of $13.66 to reimburse the state for the handcuffs taken during the escape, and combined probation and victim compensation fees of $130.00. The court also ordered defendant to participate in a work order program 40 hours each month after his release from custody, to surrender his driver's license to the court, not to operate a vehicle without a valid license and insurance, and to refrain from using alcohol while on probation. The terms also included the statutory conditions of intensive probation required by A.R.S. § 12-292. Defendant timely appealed from this order.
As a preliminary matter, we note that the trial court properly rejected defendant's contention that the imposition of intensive probation violated the terms of the plea agreement. Intensive probation may be granted in accordance with the probation statutes, A.R.S. § 13-901 et seq. See A.R.S. § 12-292(C). Intensive probation is merely a "highly structured and closely supervised" form of probation. A.R.S. § 12-291. Therefore, intensive probation is a statutory option within the discretion of the trial court in imposing probation. We thus find no violation of the terms of the plea agreement in the trial court's imposition of intensive probation.
On appeal, defendant argues that his plea was rendered involuntary by the trial court's failure to advise him that he faced "de facto incarceration" by means of "house arrest" in excess of the maximum prison term that could be imposed. He bases this contention on the fact that the six-month prison term imposed as a term of probation, combined with the remaining thirty-month restriction to his residence required by A.R.S. § 12-292(F)(4), exceeds the statutory maximum sentence of 2.5 years for a class 5 felony. See A.R.S. §§ 13-701(B)(4), -702(A). The statutory condition defendant refers to requires that a probationer "[remain] at his place of residence at all times except to go to work, to attend school, community service and as specifically allowed in...
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State v. Thomas
...minimis non curat lex. See Guay v. Washington Natural Gas Co., 62 Wash.2d 473, 476-77, 383 P.2d 296, 299-300 (1963); State v. Perkins, 159 Ariz. 381, 767 P.2d 729 (App.1988), review denied, (1989); State v. Weston, 155 Ariz. 247, 745 P.2d 994 (App.1987). Accordingly, we hold that the $8 tim......
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...including any special conditions regarding sentence, parole, or commutation imposed by statute." See State v. Perkins, 159 Ariz. 381, 383-84, 767 P.2d 729, 731-32 (App.1988). ¶18 As we have interpreted the applicable statutes, community supervision is part of the sentence imposed. See Ariz.......
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...¶ 8 (App. 2000) (generally, anyone eligible for standard probation is also eligible for intensive probation); see also State v. Perkins, 159 Ariz. 381, 383 (App. 1988) ("[I]ntensive probation is a statutory option within the discretion of the trial court in imposing ...
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