State v. Woodruff

• Citation: 997 P.2d 544,196 Ariz. 359
• Decision Date: 14 March 2000
• Docket Number: No. 1 CA-CR 98-0865.,1 CA-CR 98-0865.
• Parties: STATE of Arizona, Appellant, v. John C. WOODRUFF, Appellee.
• Court: Arizona Court of Appeals

997 P.2d 544

196 Ariz. 359

STATE of Arizona, Appellant, v. John C. WOODRUFF, Appellee.

No. -0865.

Court of Appeals of Arizona, Division 1, Department E.

March 14, 2000.

Joel Ruechel, Navajo County Attorney, David A. Brown, Deputy County Attorney, Holbrook, Attorneys for Appellant.

Keith A. Hammond, P.C. by Keith A. Hammond, Flagstaff, Attorney for Appellee.

O P I N I O N

WEISBERG, Presiding Judge.

¶ 1 The State appeals from the trial court's order placing John Woodruff ("defendant") on intensive probation. The State claims that the sentence was illegal under Arizona Revised Statutes Annotated ("A.R.S.") section 13-914 (Supp.1998) and Arizona Supreme Court Administrative Order No. 89-15 ("Order 89-15") relating to administrative requirements for intensive probation. For the following reasons, we affirm.

FACTS

¶ 2 In May 1997, defendant pled guilty to two counts of sale of marijuana, and was placed on supervised probation. In August 1998, defendant was indicted on two counts of use of dangerous drugs. Pursuant to a plea agreement, he subsequently pled guilty to one count of use of a dangerous drug. Under the terms of the agreement, that conviction would also serve as the basis to revoke defendant's probation in the earlier case.¹ However, the agreement expressly provided that probation remained available in both cases and that there was no agreement as to sentence. ¶ 3 The probation department prepared a presentence report. Under the heading "Intensive Probation Assessment," the report noted that defendant fell within the appropriate range for intensive probation supervision ("IPS") according to the IPS risk assessment scale. However, the report also concluded that defendant was not eligible for IPS under Order 89-15 and A.R.S. section 13-914(A)(2) because he had committed a non-technical violation of probation that was chargeable or indictable as a criminal offense. Elsewhere in the report, the probation officer noted that defendant had failed to comply with the terms of probation and concluded that he was unlikely to succeed on either standard probation or IPS. The officer recommended that defendant be sentenced to presumptive prison terms in both cases, with the sentence in the second case to run consecutively to that imposed in the earlier case.

¶ 4 At sentencing, defendant argued that the court could place him on IPS despite the probation officer's contrary conclusion. The prosecutor initially agreed that IPS was both available and appropriate, but later argued that the court did not have the authority to place defendant on IPS. The judge agreed with defendant and, after setting forth the factual and legal reasons supporting her decision, placed defendant on IPS in both cases. On appeal, the State argues that IPS was unavailable because defendant committed a new crime while on probation.

DISCUSSION

Was the Trial Court Bound by the Recommendation against IPS?

¶ 5 We first consider whether the trial court was bound by the probation department's recommendation against IPS pursuant to State v. Brooks, 156 Ariz. 529, 530-31, 753 P.2d 1185, 1186-87 (App.1988). In Brooks, the defendant entered into a plea agreement that provided for either a five-year prison term or placement on IPS. The trial court ordered the probation department to supplement the presentence report by considering the defendant's qualifications for IPS. The probation officer recommended against IPS, concluding that the defendant's likelihood of success was marginal. The prosecutor then argued that without the recommendation of the probation department the trial court was precluded from imposing IPS. Finding several aggravating factors, the court sentenced the defendant to prison.

¶ 6 On appeal, the defendant argued that the probation officer's authority to determine whether a defendant should be placed in an IPS program invaded the province of the judiciary in determining punishment. See id. at 531, 753 P.2d at 1187. Nonetheless, this court affirmed, holding in part that "intensive probation supervision is available to defendants only where the probation officer makes such a recommendation." Id. But in considering the application of Brooks here, the trial court noted that the IPS statute has been amended and concluded that a recommendation from the probation officer is no longer a prerequisite for IPS. We agree.

¶ 7 The Brooks court relied upon former A.R.S. section 12-292(C), which provided, in relevant part: "If the court accepts the recommendation of the adult probation officer to grant an offender intensive probation, it may suspend the imposition or execution of the sentence and grant the offender a period of intensive probation." (Emphasis added.) Shortly after Brooks was decided, however, the pertinent portion of the statute was amended to read: "The court may suspend the imposition or execution of the sentence and grant the offender a period of intensive probation in accordance with this chapter." A.R.S. § 13-914(C) (1989). By amending the statute, the legislature thereby eliminated the probation department's recommendation as a prerequisite to IPS placement.

Was the Sentence Otherwise Lawful?

¶ 8 The power of a court to grant probation is not inherent, but is derived from statute, and therefore may be granted only in accordance with statutory authorization. See State v. Jenson, 123 Ariz. 72, 74, 597 P.2d 554, 556 (App.1979)

. Under A.R.S. section 13-901(A) (Supp.1998), any person eligible for placement on standard probation is also eligible for placement on IPS, absent any other statutory disqualification.² Further, contrary to the State's contention, nothing in section 13-914 or Order 89-15 prohibited the trial court from placing defendant on IPS.

¶ 9 Section 13-914 provides, in relevant part:

A. An adult probation officer shall prepare a presentence report for every offender who has either:

1. Been convicted of a felony and for whom the granting of probation is not prohibited by law.

2. Violated probation by commission of a technical violation that was not chargeable or indictable as a criminal offense.

B. The adult probation officer shall evaluate the needs of the offender and the offender's risk to the community, including the nature of the offense and the prior criminal history of the offender. If the nature of the offense and the prior criminal history of the offender indicate that the offender should be included in an intensive probation program pursuant to supreme court guidelines for intensive probation, the adult probation officer may recommend to the court that the offender be granted intensive probation.

¶ 10 Subsection A of section 13-914 simply sets forth the circumstances under which the probation department is required to prepare a presentence report.³ Subsection B sets forth the criteria that the probation officer is to employ in evaluating an offender and the circumstances under which the officer may recommend IPS. But neither subsection restricts the trial judge's authority to place an offender on IPS.

¶ 11 Next, the State relies upon Order 89-15, subsection E, which provides, in relevant part:

1. [Only] those probation eligible offenders convicted of a felony or an undesignated felony may be placed in an intensive probation program. Technical probation violators who are on probation for a felony or an undesignated felony may also be placed in an intensive probation program.

....

7. Pursuant to these administrative requirements and A.R.S. § 13-914.A(2), the superior court may place an offender in the intensive probation supervision program who is already on probation for a felony or an undesignated felony but has violated that probation by commission of a technical violation that was not chargeable or indictable as a criminal offense.

¶ 12 Subparagraphs 1 and 7 of the order are based on the language of A.R.S. section 13-914, which contemplates the supreme court's promulgation of guidelines for the administration of intensive probation programs. See A.R.S. § 13-914(B). By its terms, the order was issued under the supreme court's authority to exercise administrative supervision over all inferior courts pursuant to Article 6 of the Arizona Constitution and the provisions of the Arizona Revised Statutes relating to intensive probation. See Order 89-15, subsection A. Of course, because the authority of our courts to...