State v. Rutherford, 1

• Decision Date: 15 October 1987
• Docket Number: No. 1,CA-CR,1
• Citation: 154 Ariz. 486,744 P.2d 13
• Parties: STATE of Arizona, Appellant, v. Gary Wayne RUTHERFORD, Appellee. 10649.
• Court: Arizona Court of Appeals

Page 13

744 P.2d 13

154 Ariz. 486

STATE of Arizona, Appellant, v. Gary Wayne RUTHERFORD, Appellee.

No. 1 CA-CR 10649.

Court of Appeals of Arizona Division 1, Department A.

Oct. 15, 1987.

Thomas E. Collins, Maricopa Co. Atty. by H. Allen Gerhardt, Deputy Co. Atty., Phoenix, for appellant.

Gary Rutherford, in pro. per.

OPINION

GRANT, Judge.

The state appeals from the trial court's order modifying appellee Rutherford's probation. This order modified a previous condition of probation which required Rutherford to serve one year "flat" in the county jail. Previously, the parties executed a plea agreement which provided in relevant part that:

The parties stipulate to the following additional terms: (These stipulations are subject to court approval at the time of sentencing as set forth in paragraph 5.) If the defendant is placed on probation he shall serve one year (flat) in the county jail.

The trial court accepted Rutherford's guilty plea to one count of attempted child molestation, a class 3 felony, and placed him on probation. Pursuant to the agreement, Rutherford's probation required that he be incarcerated in the Maricopa County Jail from November 19, 1985 to November 18, 1986.

After serving most of this jail time, Rutherford requested the trial court to modify this condition and order his release. The tone of this request was not without some urgency. Rutherford, the sole support of his disabled wife and children, lost a high paying job while in the jail's work furlough program. Apparently, Rutherford was to report to work whenever his employer contacted his probation officer and advised him that work was available. For unknown reasons, Rutherford's probation officer failed to arrange for Rutherford's release when work was available. As a result, Rutherford's employer terminated him. Although he secured other work, Rutherford could no longer meet his family's financial obligations.

Rutherford also related serious problems his children were experiencing as a result of his incarceration, and submitted various letters attesting to his rehabilitation. He stated that in the eight and one-half months he was incarcerated, "I have [served] as vice-president of my tank six of those months, and I have not had a writeup nor caused any problems for my probation officers or detention officers."

A hearing was held and the state opposed any modification of the condition of probation, which required incarceration for one calendar year. Relying on State v. Superior Court, 125 Ariz. 575, 611 P.2d 928 (1980), limited by Smith v. Superior Court, 130 Ariz. 210, 635 P.2d 498 (1981) and State v. Williams, 131 Ariz. 411, 641 P.2d 899 (App.1982) (court not bound by sentence agreed to by parties, but had to give parties opportunity to withdraw from plea prior to sentencing), the state argued the trial court did not have jurisdiction to "sentence contrary to the plea (with regard to the jail sentence) at this point in time and defendant's motion must be denied."

The trial court believed the conditions of probation, including the jail term, were discretionary, not jurisdictional, and granted Rutherford's motion. The court set forth many factors evidencing Rutherford's rehabilitation and modified his probation by ordering his release from jail.

The state's motion for reconsideration was denied and a timely notice of appeal filed. Although given ample opportunity, Rutherford did not timely file an answering brief or request appointment of counsel based on indigency to assist him in this matter. Therefore, by this court's previous order, this matter is submitted for consideration and disposition, based upon the record and state's opening brief. We have jurisdiction pursuant to A.R.S. § 13-4032(5).

On appeal, the state contends the trial court lacked jurisdiction to modify Rutherford's probation. The state argues the modification order was in violation of the plea agreement's stipulated sentence. Additionally, the state recognizes Rule 27.2, Arizona Rules of Criminal Procedure, which authorizes a trial court to modify conditions of probation, but argues this authority is limited in this matter by the plea agreement provision.

The state's first argument has at its foundation the rule laid down in State v. Superior Court, which states:

Rule 17.4(d) and (e) gives the court only two options when it is presented with a plea pursuant to a plea agreement. The court may accept the terms of the plea agreement or reject them in their entirety. If the court accepts the plea agreement, it must proceed pursuant to the agreement. Unless the plea agreement specifically gives the court discretion to do otherwise, the court may not vary the terms of the plea agreement without consent of the parties. There is no authority or jurisdiction for the trial court to impose a sentence contrary to the plea agreement. Since the court lacked jurisdiction to sentence contrary to the plea agreement, the attempted sentence was a nullity and, in law, never imposed.

125 Ariz. at 578, 611 P.2d at 931.

In State v. Superior Court, the parties stipulated to specific prison sentences. Based on the stipulation, the trial court was left only with the discretion to accept or reject the terms of the plea agreement. Contrary to the specific stipulation, the trial court imposed a shorter prison sentence. The supreme court held the trial court had no jurisdiction to sentence the defendant contrary to the stipulated sentence, and therefore the attempted sentence was a nullity. See also, State v. Cagnina, 113 Ariz. 387, 389, 555 P.2d 345, 347 (1976) (suggesting trial court's discretion in sentencing could be limited where specific sentence is part of plea agreement).

What sets this case apart from State v. Superior Court is that here the trial court did sentence according to the plea agreement. This agreement gave the trial court discretion as to the sentence imposed, but limited this discretion by agreeing that if Rutherford was placed on probation, he would serve one calendar year in the county jail. The trial court placed Rutherford on probation and required as a condition of probation that he serve one calendar year in the county jail. The state contends that State v. Superior Court controls and therefore the trial court had no jurisdiction to modify this condition of probation. We believe the case relied upon by the state to be persuasive but not controlling since it involves a sentence rather than a term of probation. However, we do find that the trial court acted in excess of its authority under rule 27.2 in modifying probation.

It is clear a trial court has the authority to modify probation. See A.R.S. § 13-901(C) (Laws 1982, ch. 177, § 2); Rule 27.2, Arizona Rules of Criminal Procedure; Burton v. Superior Court, 27 Ariz.App. 797, 558 P.2d 992 (1977). However, the discretionary authority given the sentencing court to impose, modify, or revoke probation is limited by several statutory provisions, as well as constitutional due process considerations. Green v. Superior Court, 132 Ariz. 468, 471, 647 P.2d 166, 169 (1982). We believe this authority can also be limited by agreement of the parties.

In the instant case, the trial court's authority to modify the condition of probation requiring Rutherford to serve one calendar year in the county jail was expressly limited by the parties' negotiated and subsequently executed plea agreement.

Rule 17.4, Arizona Rules of Criminal Procedure, states in part:

a. Plea...