State v. Stotts

• Decision Date: 08 February 1985
• Docket Number: No. 6265,6265
• Parties: STATE of Arizona, Appellee, v. James Samuel STOTTS, aka James Aye, Appellant.
• Court: Arizona Supreme Court

Page 1110

695 P.2d 1110

144 Ariz. 72

STATE of Arizona, Appellee, v. James Samuel STOTTS, aka James Aye, Appellant.

No. 6265.

Supreme Court of Arizona In Banc.

Feb. 8, 1985.

On Motion for Reconsideration

March 20, 1985.

Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Criminal Division, Diane M. Ramsey, Asst. Atty. Gen., Phoenix, for appellee.

Frederic Dardis, Pima County Public Defender, Regula Case, Asst. Public Defender, Tucson, for appellant.

GORDON, Vice Chief Justice:

On July 8, 1976, appellant James Stotts, aka James Aye, pled guilty to the old-code crime of armed aggravated assault with one prior. See A.R.S. § 13-245(C) (repealed). This conviction arose from an incident in which appellant, armed with a knife, attacked a fifteen year old girl in an apparent attempted sexual assault.

The trial court suspended imposition of sentence and placed appellant on probation for fifteen years. The conditions of probation included appellant's return to the State of Washington, where appellant was wanted as a parole violator. In Washington, appellant would report to the Western State Hospital in Fort Steilacoom, Washington (hereinafter referred to as Western State) for evaluation and in-patient treatment. The court also instructed appellant to "follow all conditions required by the Probation Department."

Appellant, however, neither signed nor received any written conditions at the time probation was imposed. Nevertheless, authorities returned him to Washington to finish that state's parole. There, in late 1976, he entered into the "Sex Offender Treatment Program" at Western State.

When appellant's Washington parole was about to expire in late 1978, Arizona and Washington authorities executed an "Application for Compact Services" and an "Agreement to Return." Appellant signed both documents. The documents at once made Arizona the probation authority and made Washington the state that would supervise the probation. The "Agreement to Return" stated that appellant, in consideration of being granted probation by Arizona, would remain at Western State under the conditions of probation as fixed by either Washington or Arizona. Subsequently, in April of 1979 and July of 1981, appellant signed documents entitled "Interstate Compact--Conditions of Probation and Parole." These documents stated various conditions appellant had to follow in his interstate probation. One of the chief conditions was appellant's participation in the Sex Offender Treatment Program at Western State. Further, the 1981 conditions included successfully completing "all phases of the Western State Sexual Psychopath program."

In 1982, however, Washington authorities concluded that appellant was no longer treatable and was dangerous to be at large. Appellant's therapy group at the hospital voted him out of the program because of his lack of progress. Appellant also expressed a desire to leave the program. Based upon these circumstances, appellant's Washington Probation Officer wrote a "Violations Report" recommending revocation of appellant's probation.

Appellant was returned to Arizona, where a probation revocation hearing was held. After the presentation of evidence, the trial court determined appellant had violated his conditions of probation and ordered it revoked. After a dispositional hearing, the trial court sentenced appellant to not less than ten years and not more than life in prison, the maximum sentence for the old code crime of armed aggravated assault with one prior. We have jurisdiction pursuant to Ariz. Const. Art. 6, § 5(3) and A.R.S. § 13-4031.

Appellant presents the following issues:

(1) Can appellant's probation be revoked when appellant neither signed nor received conditions of probation at the time probation was imposed?

(2) Did the petition to revoke give sufficient notice of the grounds for revocation?

(3) Did Judge Meehan have authority to revoke appellant's probation, when Judge Veliz, who placed appellant on probation, was still on the Superior Court bench in Tucson?

(4) Did the trial court abuse its discretion when it admitted various exhibits at the violation hearing?

(5) Was there sufficient evidence to support probation revocation?

(6) Is appellant's sentence excessive? Is he entitled to credit for the time he spent on probation?

WRITTEN CONDITIONS OF PROBATION

A. The Furnishing of Written Probation Conditions

Appellant maintains that because Pima County gave him no written conditions when his probation was imposed in 1976, his probation cannot now be revoked.

We agree that the trial court and the probation authorities failed to provide appellant with written conditions at the time probation was imposed. Despite our disapproval of this lack of procedure, however, we do not agree that appellant's probation cannot now be properly revoked.

Our Rules of Criminal Procedure require that all conditions and regulations pertaining to probation be in writing. Furthermore, the trial court must supply a copy of such written conditions and regulations to the probationer at the time probation is imposed. Rule 27.1, Ariz.R.Crim.P., 17 A.R.S. See State v. Williams, 122 Ariz. 146, 593 P.2d 896 (1979); State v. Heasley, 23 Ariz.App. 345, 533 P.2d 556 (1975). Similarly, any modifications or clarifications of probation regulations must be in writing and a copy given to the probationer. Rule 27.2, Ariz.R.Crim.P., 17 A.R.S. Consequently, a court may not revoke probation for a violation of a condition or regulation of which the probationer has not received a written copy. Rule 27.7(c)(2), Ariz.R.Crim.P., 17 A.R.S.

In the instant case, appellant was placed on fifteen years probation on July 8, 1976. In his sentencing order, the trial judge set out three conditions for appellant's probation:

"(1) That he be returned through the Washington State Parole hold to enter Washington Correctional Center;

"(2) That he be accepted at the Western State Hospital for evaluation and in-patient treatment, and

"(3) That he follow all the conditions required by the [Arizona] Probation Department."

Appellant received no written copy of any conditions of probation at the time of his sentence. In November of 1978, however, the State of Washington applied for an Interstate Compact with Arizona. In this application for Interstate Compact that he signed, appellant agreed to make his home at Western State and to return to Arizona when duly instructed by proper authorities. Appellant also agreed to comply with the conditions of probation as fixed by both Arizona and Washington. Subsequently, in April of 1979, appellant signed and apparently received a copy of an Interstate Compact with Conditions of Probation. He signed and apparently received more conditions in July of 1981. His probation was revoked because of a violation of one of these subsequent written conditions.

Though we emphasize that all probationers should receive written conditions at the time probation is imposed, we do not find the failure to do so in this case invalidated the probation revocation. A combination of four factors justifies this conclusion: first, though appellant's original "unwritten probation" was, upon imposition, unenforceable by revocation, it was valid; second, the subsequent furnishing with appellant of written conditions and his signing of those conditions cured the probation's unenforceability; third, the subsequent written conditions were not more burdensome than the unwritten conditions; and, fourth, there were no due process violations in basing revocation upon the subsequent written conditions.

The validity of appellant's "unwritten probation" finds support in Rule 27. This rule promotes "due process" fairness in enforcing probation. Its purpose is to apprise the probationer of conditions that might be grounds for revocation. State v. Acosta, 25 Ariz.App. 44, 540 P.2d 1263 (1975). Nothing in our statutes or rules, however, suggests that the failure to provide the probationer written conditions invalidates the probation. In the instant case, therefore, appellant's "unwritten probation" was valid but unenforceable. Thus, had appellant violated one of the terms of his probation prior to receiving written conditions, the state could not have revoked the probation.

Second, we believe subsequently furnishing appellant with written conditions cured the probation's unenforceability. The November 1978, April 1979, and July 1981 documents that appellant signed gave appellant written notice of his Arizona probation conditions. Assuming appellant received such conditions, his probation was not only valid, but enforceable as well.

Third, comparison of the subsequent written conditions with the original unwritten conditions shows that the subsequent written conditions were not more burdensome than the previous unwritten conditions. ¹ Appellant's "unwritten probation" set by the trial judge required appellant to return to Washington to finish his parole to enter Western State for in-patient treatment, and to follow all conditions placed upon appellant by the Pima County Probation Department. The subsequent written conditions specified the name of the in-patient program in which appellant was to participate. The 1981 conditions further specified that appellant successfully complete the program. We do not believe that specifying the name of the hospital program and specifying that appellant successfully complete that program added any additional burdens upon the original condition that appellant participate in the program.

Finally, appellant's due process rights were not violated by basing revocation upon these subsequent written conditions. The subsequent written conditions were given to appellant in November of 1978, April of 1979, and July of 1981. Assuming he received copies of these documents, he was on notice of the behavior expected of him. Moreover, the petition to revoke appellant's probation was based upon an alleged violation...