SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0299-PR
Appellant, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 07-0083
SEAN WAYNE BOTKIN, )
) Maricopa County
Appellee. ) Superior Court
) No. CR2000-016781
)
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Teresa A. Sanders, Judge
AFFIRMED
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Opinion of the Court of Appeals, Division One
219 Ariz. 466, 200 P.3d 323 (App. 2008)
VACATED
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ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By David E. Wood, Deputy County Attorney
Attorneys for State of Arizona
OSBORN MALEDON, P.A. Phoenix
By Larry A. Hammond
Timothy J. Eckstein
Attorneys for Sean Wayne Botkin
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H U R W I T Z, Justice
¶1 If a criminal defendant is eligible for probation, the
superior court may suspend imposition of sentence and “place the
person on intensive probation.” A.R.S. § 13-901(A) (Supp.
2008); see A.R.S. § 13-913 (2001) (defining “intensive
probation” as “a program . . . of highly structured and closely
supervised probation which emphasizes the payment of
restitution”). Upon notice to the State and any victim, see
A.R.S. § 13-901(E), the court “may at any time modify the level
of supervision of a person granted intensive probation, or may
transfer the person to supervised probation or terminate the
period of intensive probation,” A.R.S. § 13-917(A) (2001).
¶2 At issue in this case is A.R.S. § 13-917(B), which
provides in pertinent part as follows:
If a petition to revoke the period of intensive
probation is filed and the court finds that the person
has committed an additional felony offense or has
violated a condition of intensive probation which
poses a serious threat or danger to the community, the
court shall revoke the period of intensive probation
and impose a term of imprisonment as authorized by
law.
The question is whether this provision deprives the superior
court of authority to transfer the defendant from intensive to
supervised probation after a petition to revoke has been filed
but before any finding that the defendant committed the
additional felony offense has been made.
I.
¶3 On March 9, 2001, Sean Wayne Botkin pleaded guilty to
two counts of kidnapping and one count of aggravated assault
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(the “2000 Offenses”) arising from an incident that occurred
when he was fourteen years old. Botkin was placed on intensive
probation for seven years on the kidnapping charges and for five
years on the aggravated assault charge. He was incarcerated in
the county jail for twelve months as a condition of probation.
¶4 After his release from custody, Botkin allegedly gave
four prescription pills to a high school classmate. He was
charged with transfer of prescription drugs (the “2004
Offense”), a class 6 felony. See A.R.S. § 13-3406(A)(7), (B)(2)
(Supp. 2005).
¶5 The Adult Probation Department filed a petition to
revoke Botkin’s intensive probation on the 2000 Offenses. See
Ariz. R. Crim. P. 27.6(a) (providing for petition to revoke
probation). In December 2004, while the petition was pending,
Botkin entered into a plea agreement stipulating to a term of
imprisonment for the 2004 Offense. In return, the State agreed
to dismiss allegations of prior felony convictions and the
allegation that the 2004 Offense occurred while Botkin was on
probation.
¶6 At a joint change-of-plea and probation violation
hearing, the superior court accepted the plea and found that the
commission of the 2004 Offense violated Botkin’s probation. At
the subsequent sentencing and probation disposition hearing, the
court sentenced Botkin to one year in prison for the 2004
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Offense. See A.R.S. § 13-708(C) (Supp. 2008) (requiring that a
defendant convicted of a felony offense while on probation
receive not less than the presumptive sentence for that
offense).1 The court, however, rejected the State’s demand that
Botkin also be imprisoned for the 2000 Offenses, instead
transferring Botkin from intensive to supervised probation.
¶7 The State appealed, arguing that because the superior
court had determined that Botkin had committed an additional
felony, it was required under § 13-917(B) to revoke intensive
probation and imprison Botkin for the 2000 Offenses. The court
of appeals agreed, vacating the order reinstating Botkin on
supervised probation for the 2000 Offenses and remanding to the
trial court. State v. Botkin, 1 CA-CR 05-0082 (Ariz. App. Feb.
28, 2006) (mem. decision).
¶8 By the time the memorandum decision was issued, Botkin
had already served the sentence imposed for the 2004 Offense.
After remand, Botkin moved to withdraw his plea to the 2004
Offense, contending that he had not been aware that the plea
would subject him to mandatory prison sentences for the 2000
Offenses. The State did not oppose Botkin’s motion, and the
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1
This provision was previously codified at A.R.S. § 13-
604.02(B) (2001). It was renumbered and amended, without
substantive change, as § 13-708(C). 2008 Ariz. Sess. Laws, ch.
301, §§ 17, 32 (2d Reg. Sess.). This opinion cites to current
versions of statutes that have not been materially changed since
the time of their application to this case.
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trial court allowed the plea to be withdrawn, thus vacating the
conviction for the 2004 Offense. Over the State’s objection,
the court then granted Botkin’s motion to reduce the intensive
probation imposed for the 2000 Offenses to supervised probation.
Botkin later pleaded guilty to the 2004 Offense and was
sentenced to time already served. The court ordered that Botkin
continue on supervised probation for the 2000 Offenses.
¶9 The State again appealed. A divided panel of the
court of appeals reversed and remanded. State v. Botkin, 219
Ariz. 466, 472 ¶ 29, 200 P.3d 323, 329 (App. 2008). Although
“presum[ing] that the trial court had good reasons . . . to
allow Botkin to continue on probation” after his second plea to
the 2004 Offense, id. at 468 ¶ 11, 200 P.3d at 325, the majority
concluded that § 13-917(B) prohibited the judge from
transferring Botkin to supervised probation after the filing of
the petition to revoke, id. at 470 ¶ 21, 200 P.3d at 327.2
¶10 The dissenting judge argued that § 13-917(B) applies
only if the defendant is on intensive probation when the court
finds he committed an additional felony offense. Id. at 474-75
¶¶ 40-43, 200 P.3d at 331-32 (Kessler, J., dissenting). Because
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2
The majority questioned whether Botkin’s guilty plea to the
2004 Offense was “intelligent and voluntary,” see Boykin v.
Alabama, 395 U.S. 238 (1969), because the trial court did not
inform him that this plea would require imprisonment for the
2000 Offenses, and therefore remanded for the trial court to
address that issue. Botkin, 219 Ariz. at 472 ¶ 27, 200 P.3d at
329.
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the superior court had vacated Botkin’s previous guilty plea to
the 2004 Offense before it resolved the petition to revoke, the
dissent reasoned that the court retained authority under § 13-
917(A) to transfer Botkin to supervised probation for the 2000
Offenses. Id. at 475 ¶ 44, 200 P.3d at 332. Botkin’s
subsequent plea to the 2004 Offense did not trigger § 13-917(B),
the dissent concluded, because “a court cannot revoke an
intensive probation which no longer exists.” Id. at 474 ¶ 40,
200 P.3d at 331.
¶11 Botkin petitioned for review. Although the facts of
this case are unusual, we granted review because interpretation
of § 13-917(B) is an issue of first impression, see Ariz. R.
Crim. P. 31.19(c), and Botkin faces a substantial prison
sentence under the opinion below. We have jurisdiction under
Article 6, Section 5(3) of the Arizona Constitution and A.R.S.
§ 13-4036 (2001).
II.
¶12 This case involves the intersection of two subsections
of A.R.S. § 13-917. Subsection (A) provides that the trial
court may transfer a person from intensive to supervised
probation “at any time.” Subsection (B) directs that “the court
shall revoke the period of intensive probation and impose a term
of imprisonment” upon the occurrence of certain events.
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¶13 The State contends that § 13-917(A) only permits the
superior court to transfer a person from intensive to supervised
probation when no petition to revoke is pending. Subsection
(A), however, contains no such limiting language. Rather, it
allows the trial court to transfer a person from intensive to
supervised probation “at any time.” A.R.S. § 13-917(A). Thus,
the State’s argument perforce rests entirely on § 13-917(B),
which mandates certain consequences when a court finds that a
probationer has committed a new felony offense.
¶14 Botkin argues that the consequences mandated by § 13-
917(B) – revocation of intensive probation and a mandatory
prison term – are not triggered by the filing of the revocation
petition alone, but also require a finding that an additional
felony was committed, and that § 13-917(A) permits the superior
court to modify the level of probation until such a finding is
made. The language of the statute supports Botkin’s
interpretation. Subsection (B) applies only when “a petition to
revoke the period of intensive probation is filed and the court
finds that the person has committed an additional felony
offense.” A.R.S. § 13-917(B) (emphasis added); see State v.
Getz, 189 Ariz. 561, 563, 944 P.2d 503, 505 (1997) (“The best
and most reliable index of a statute’s meaning is its language
. . . .” (quoting In re Pima County Juvenile Appeal No. 74802-2,
164 Ariz. 25, 33, 790 P.2d 723, 731 (1990))). The statute
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requires the concurrence of two events before revocation of
intensive probation and a term of imprisonment are mandated.
Subsection (B) does not speak to the trial court’s ability to
reduce the level of supervision before it finds a probation
violation; rather, it speaks to what the court must do after it
finds the violation.
¶15 Because § 13-917(A) allows the court to reduce the
level of probation at “any time,” the statute, read as a whole,
requires a term of imprisonment only if the court had not
reduced the level of probation before finding the additional
felony violation. Given the withdrawal of Botkin’s original
plea to the 2004 Offense and the superior court’s modification
of the level of probation before its acceptance of Botkin’s
second plea to the 2004 Offense, that is precisely what occurred
here.
¶16 In effect, the State argues that because Botkin
committed the offense while on intensive probation, the
consequences in § 13-917(B) are mandated. But the legislature
knows well how to provide for consequences that flow from the
fact of commission of a crime, as opposed to the date of
conviction. Section 13-708(C), for example, requires
imprisonment if a probationer is convicted of a second felony
offense “that is committed while the person is on probation.”
In contrast, the consequences mandated in § 13-917(B) are
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triggered only if the defendant is on intensive probation when
the violation is found. Until then, the court retains authority
under § 13-917(A) to transfer the person from intensive to
supervised probation.
III.
¶17 The State argues that construing § 13-917(A) to allow
a court to transfer a defendant to supervised probation after a
petition is filed – but before the court finds the commission of
an additional felony offense – renders the contested sentence
from § 13-917(B) superfluous. See City of Tucson v. Clear
Channel Outdoor, Inc., 209 Ariz. 544, 552 ¶ 31, 105 P.3d 1163,
1171 (2005) (“Whenever possible, we do not interpret statutes in
such a manner as to render a clause superfluous.”). We
disagree. The statute unequivocally instructs the superior
court that once it finds that a defendant on intensive probation
has committed a new felony, it has no discretion but to revoke
the probation and impose a term of imprisonment.
¶18 The State also suggests that unless the opinion below
is affirmed, trial judges will render § 13-917(B) ineffectual,
by routinely transferring defendants to supervised probation
before deciding whether a violation has occurred. But this
assumes that superior court judges can – and will – inevitably
reduce the level of probation whenever a petition to revoke is
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filed. We are confident, however, that such occurrences will be
rare.
¶19 In almost all cases in which a defendant on intensive
probation commits a new felony, the State will promptly petition
to revoke intensive probation, and the court will promptly hold
a disposition hearing. It is unlikely that the defendant will
have done anything warranting transfer to supervised probation
in the period between the alleged violation and the hearing.
Indeed, although § 13-917(A) provides a trial court with
discretion to transfer a defendant from intensive to supervised
probation, a judge would abuse that discretion by ordering such
a transfer after the filing of the revocation petition simply to
avoid the consequences mandated by § 13-917(B). Thus, in most
cases, § 13-917(B) will mandate a term of imprisonment when a
defendant on intensive probation commits an additional felony
offense.
¶20 This, however, is an extraordinary case. Here,
through no fault of the defendant, more than two years passed
between the filing of the petition to revoke and the superior
court’s ultimate finding that Botkin had committed the 2004
Offense. For some eighteen of those months – from August 2005,
when Botkin was released from prison after fully serving his
original sentence on the 2004 Offense, until February 2007, when
the court accepted his second plea to the 2004 Offense – Botkin
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was, as the superior court noted, for all intents and purposes
on supervised probation. During that period, as the probation
department reported, Botkin “maintained full compliance with the
conditions of his supervised probation[,] . . . enrolled at Mesa
Community College, paid his fine in full, completed all of his
community service hours, and remained drug and alcohol free.”
¶21 In transferring Botkin to supervised probation, the
superior court made clear that it was not reducing the level of
probation to avoid application of § 13-917(B), but rather in
recognition of Botkin’s significant progress during the
substantial period since his release from prison. Given the
unusual circumstances of this case, we cannot conclude that the
court abused its discretion in doing so.3
IV.
¶22 For the reasons above, we vacate the opinion of the
court of appeals and affirm the superior court’s order
transferring Botkin from intensive to supervised probation.
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3
The State also relies on A.R.S. § 13-903(D) (2001), which
provides that the “running of the period of probation shall
cease” upon the filing of a petition to revoke. But this
provision has nothing to do with the trial court’s power to
modify levels of probation under § 13-917(A). Rather, it is
designed to prevent a revocation petition from being mooted
before it can be adjudicated. See State v. White, 115 Ariz.
199, 205, 564 P.2d 888, 894 (1977) (holding that the court lacks
authority to revoke probation after period of probation
expires).
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Andrew D. Hurwitz, Justice
CONCURRING:
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Ruth V. McGregor, Chief Justice
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Rebecca White Berch, Vice Chief Justice
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Michael D. Ryan, Justice
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W. Scott Bales, Justice
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