State v. Tatlow, 1 CA–CR 11–0593.

• Decision Date: 04 December 2012
• Docket Number: No. 1 CA–CR 11–0593.,1 CA–CR 11–0593.
• Citation: 290 P.3d 228,231 Ariz. 34,649 Ariz. Adv. Rep. 15
• Parties: STATE of Arizona, Appellee, v. Terry Wayne TATLOW, Appellant.
• Court: Arizona Court of Appeals

231 Ariz. 34

290 P.3d 228

649 Ariz. Adv. Rep. 15

STATE of Arizona, Appellee,

v.Terry Wayne TATLOW, Appellant.

No. 1 CA–CR 11–0593.

Court of Appeals of Arizona,

Division 1, Department C.

Dec. 4, 2012.

Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division and Katia Mehu, Assistant Attorney General, Phoenix, Attorneys for Appellee.

The Law Offices of Kelly A. Smith by Kelly A. Smith, Yuma, Attorney for Appellant.

OPINION

SWANN, Judge.

¶ 1 Terry Wayne Tatlow appeals the superior court's revocation of his probation and its imposition of a 2.5 year prison sentence following his unsuccessful participation in a drug court program. He contends that federal law makes his drug court record confidential, and that the superior court erred when it relied on information concerning his drug court record to revoke his probation and refused to recuse itself from the revocation proceedings. We hold that federal law does not prohibit the superior court from considering its own drug court records in revocation proceedings. Because the record supports the revocation of Tatlow's probation, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 In June 2008, Tatlow pled guilty to one count of third-degree burglary and was placed on probation for three years. In May 2010, the Yuma County Drug Court accepted Tatlow into its program as part of his probation. The conditions of probation required Tatlow to “[p]articipate and cooperate in any program of counseling or assistance as directed by” the court or the probation department (“Condition 10”) and to abide by the “Special Regulations” of the drug court program (“Condition 25”). The Special Regulations required Tatlow to “[c]omply with the treatment provider and allow the provider to disclose to the court and/or the Probation Department all information about [his] attendance and progress in treatment” (“Special Regulation 5”) and to “[c]omply with all of the requirements of each of the Drug Court phases” (“Special Regulation 8”). Tatlow also signed a “Consent and Waiver of Confidentiality,” which authorized the disclosure of information regarding his treatment.

¶ 3 On June 6, 2011, the drug court held a status hearing and found that “[Tatlow's] attendance sheet” for the treatment program contained a “forged signature.” The court then terminated Tatlow from the drug court program. On June 7, 2011, the probation department filed a petition to revoke, alleging that Tatlow violated Condition 10 of his probation when he failed to participate and cooperate in a program of counseling or assistance. The petition further alleged that Tatlow violated Condition 25 of his probation when he failed to complete the drug court program successfully. Tatlow filed a motion to dismiss the petition to revoke, arguing that the petition was improperly based on confidential information. The superior court denied the motion.

¶ 4 The judge who presided over Tatlow's drug court proceedings also presided over his probation revocation proceedings. At the revocation hearing, the court took judicial notice of its earlier order terminating him from the drug court program. The court then ruled that Tatlow had violated Conditions 10 and 25 of his probation. It revoked Tatlow's probation and sentenced him to 2.5 years in prison.

¶ 5 Tatlow timely appeals. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and A.R.S. §§ 12–120.21(A), 13–4031 and 13–4033.

DISCUSSION

I. THE COURT PROPERTY DENIED TATLOW'S MOTION TO DISMISS THE PETITION TO REVOKE.

¶ 6 Tatlow argues that revocation of his probation was reversible error, because the revocation was based on information pertaining to his failed drug court participation that was confidential as a matter of federal law. He argues that this confidentiality should have prevented the court from taking judicial notice of its own order terminating him from the drug court program. He also contends that the evidence was insufficient to support the revocation, and that the judge should have recused herself from the revocation proceedings. We address each contention in turn.

A. Federal Confidentiality Regulations Did Not Prohibit the Court from Taking Judicial Notice of Its Own Order.

¶ 7 Federal law makes confidential all information maintained in connection with programs that are both: (1) related to a patient's substance abuse treatment or rehabilitation;and (2) directly or indirectly assisted by the federal government. 42 U.S.C. § 290dd–2(a) (1998); 42 C.F.R. § 2.12(a), (e). A person may give written consent to the disclosure of such information, in a form prescribed by federal regulation. See42 U.S.C. § 290dd–2(b)(1); 42 C.F.R. § 2.13(a), (c); 42 C.F.R. § 2.31. The information may also be disclosed pursuant to a court order that complies with federal law. 42 U.S.C. § 290dd–2(b)(2)(C).

¶ 8 Generally, no records pertaining to treatment may be used to conduct any investigation of a patient. 42 U.S.C. § 290dd–2(c); 42 C.F.R. § 2.12(d). But 42 C.F.R. § 2.35(a) permits a treatment program to disclose information to agencies, such as courts, that make participation in the program a condition of the disposition of a criminal proceeding when the patient has signed a written consent consistent with 42 C.F.R. § 2.31.

¶ 9 At the outset, we note that there is also nothing in the record to support Tatlow's claim that his treatment program actually received federal assistance. In his opening brief, Tatlow argues conclusorily: “[t]here is no dispute in the record that the Yuma County Drug Court Program and/or the court and probation system in general is, in fact, federally funded and/or assisted. Documentation of such is attached....” Tatlow offers no further argument and cites no additional evidence or authority to support this assertion.

¶ 10 Close examination of the record reveals that it does not support Tatlow's assertion. There is nothing in the record demonstrating that the federal government directly or indirectly assisted any program or activity related to Tatlow's substance abuse education, treatment, or rehabilitation at or around the time Tatlow participated in the drug court program.¹ Absent federal assistance, the federal confidentiality laws found in 42 U.S.C. § 290dd–2 and the associated federal regulations would have no application.

¶ 11 We would affirm even if facts existed to trigger the application of federal law, because Tatlow signed a Consent and Waiver of Confidentiality when he entered the drug court program.² The Consent and Waiver expressly permitted disclosure of information, including Tatlow's identity, diagnosis, prognosis, treatment and attendance in connection with the treatment he underwent as part of his participation in the drug court program. Consistent with 42 C.F.R. § 2.35, the Consent and Waiver authorized disclosureto all judges, prosecutors, defense attorneys, and probation officers assigned to Tatlow's case. Tatlow does not contend that the form of Consent and Waiver violated federal law.

¶ 12 By its terms, the Consent and Waiver expired upon “defendant's graduation from the Drug Court or his/her termination from the Drug Court Program.” The premise underlying Tatlow's entire argument on appeal is: because he was terminated from the program on June 6, the June 7 petition to revoke and all later proceedings thereon were tainted by the fact that the Consent and Waiver automatically expired “upon his termination.” We reject this premise.

¶ 13 The expiration of the Consent and Waiver did not prohibit the use of information concerning Tatlow's unsuccessful termination from drug court in later probation revocation proceedings. 42 C.F.R. § 2.35(a) provides:

A program may disclose information about a patient to those persons within the criminal justice system which have made participation in the program a condition of the disposition of any criminal proceedings against the patient or of the patient's parole or other release from custody if:

(1) The disclosure is made only to those individuals within the criminal justice system who have a need for the information in connection with their duty to monitor the patient's progress (e.g., a prosecuting attorney who is withholding charges against the patient, a court granting pretrial or posttrial release, probation or parole officers responsible for supervision of the patient); and

(2) The patient has signed a written consent meeting the requirements of § 2.31 ... and the requirements of paragraphs (b) and (c) of this section. ³

¶ 14 Here, as in many drug court matters, Tatlow's participation in the program was a condition of his probation and release. Section 2.35 plainly contemplates that failure to successfully complete a drug court program may result in the disclosure of adverse information to justice system personnel. Indeed, section 2.35(d) provides that such information may be “ redisclose[d] and use[d]” to carry out official duties with regard to the participant's release from custody. (Emphasis added.) This provision makes clear that the trial judge was not required to forget that she had terminated Tatlow from the drug court program. The court's judicial notice of its own order—whether considered a “redisclosure” of information to the court system or “use” of information by the court system—was therefore entirely proper.⁴ The expiration of the Consent and Waiver could have operated to prevent use of information that came into the court's possession after it had expired, but it did not prevent use of information of which the court became aware during its effective period.

B. The Revocation of Tatlow's Probation Was Supported by Sufficient Evidence.

¶ 15 Tatlow next contends that there was insufficient evidence to support the court's finding that he violated the terms of his probation. The state must prove a defendant violated a term of probation by a preponderance of the evidence. State v. Tulipane, 122 Ariz. 557,...