SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0211-PR
Appellant, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 09-0127
TROY JASON LEWIS, )
) Apache County
Appellee. ) Superior Court
) No. CR2003-112
)
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Apache County
The Honorable Donna J. Grimsley, Judge
AFFIRMED
________________________________________________________________
Opinion of the Court of Appeals, Division One
224 Ariz. 512, 233 P.3d 625 (App. 2010)
AFFIRMED
________________________________________________________________
MICHAEL B. WHITING, APACHE COUNTY ATTORNEY St. Johns
By Martin Brannan, Chief Deputy County Attorney
Attorneys for State of Arizona
LAW OFFICE OF EMILY DANIES Tucson
By Emily L. Danies
Attorney for Troy Jason Lewis
________________________________________________________________
H U R W I T Z, Vice Chief Justice
¶1 A term of probation may be terminated “at a time
earlier than that originally imposed if in the court’s opinion
the ends of justice will be served and if the conduct of the
defendant on probation warrants it.” A.R.S. § 13-901(E) (2010).1
We granted review in this case to determine whether a court may
terminate probation despite a defendant’s failure to complete
all required community service and pay all outstanding fees and
fines.
I.
¶2 In 2003, Troy Jason Lewis pleaded guilty to possession
of a dangerous drug for sale. The superior court placed him on
probation for five years and ordered him to perform forty hours
per month of community service and pay $5400 in fines and fees.
¶3 While on probation, Lewis tested positive for
methamphetamine three times and was incarcerated for each
violation. After the third violation, Lewis was placed in an
inpatient rehabilitation program for 180 days. Lewis
successfully completed the program and has remained drug-free.
Lewis completed vocational training and has been steadily
employed for several years. He has married, has two children,
and regularly attends church.
¶4 Lewis’s term of probation was to expire on September
13, 2008. His probation officer petitioned for termination of
probation on September 3, 2008. The petition noted that Lewis
had not completed all required community service and had not
1
We cite the current version of the statute because it has
not been materially revised since the events that gave rise to
this case.
2
paid all outstanding fees and fines, but nonetheless recommended
“unsuccessful termination” and the entry of a civil judgment for
the remaining fees and fines. The State objected and filed a
petition to revoke probation. Between October and December
2008, Lewis paid most of the delinquent fines. On December 4,
2008, his probation officer reported to the court that Lewis had
completed 347 hours of community service, appeared “sincere in
his desire to improve his life,” and opined that “continued
probation would be of little benefit.”
¶5 At a disposition hearing on December 8, 2008, Lewis
addressed the court and acknowledged responsibility for the
unpaid fines and fees. The trial court noted that Lewis had
received letters of support from the community. Although
finding that Lewis had neither paid all required fines nor
completed all required community service, the court nonetheless
decided to terminate probation, stating:
Mr. Lewis, I tend to agree with you that probation is
designed for rehabilitation, and I’m not certain that
there’s anything that probation can assist you with at
this point in time to complete any rehabilitative
process. It seems that those efforts have been made,
and I don’t think we’re going to get better by keeping
you on probation.
Therefore, I am going to follow the recommendation. I
will unsuccessfully terminate your probation today
because there’s . . . an outstanding amount, and that
will be entered as a judgment against you.
3
¶6 The State appealed. A divided court of appeals
affirmed the termination of Lewis’s probation. State v. Lewis,
224 Ariz. 512, 513 ¶ 1, 233 P.3d 625, 626 (App. 2010). Judge
Hall dissented, arguing that § 13-901(E) “does not authorize a
trial court to grant early release to a defendant whose
performance while on probation has been unsatisfactory.” Id. at
517 ¶ 27, 233 P.3d at 630 (Hall, J., dissenting).
¶7 We granted review to resolve a recurring issue of
statewide importance. See ARCAP 23(c)(3). We have jurisdiction
under Article 6, Section 5(3) of the Arizona Constitution and
A.R.S. § 12-120.24 (2003).
II.
A.
¶8 “The trial court’s power to grant probation is not
inherent but is derived from . . . statutory authority.” State
v. Carter, 116 Ariz. 595, 597, 570 P.2d 763, 765 (1977). The
legislature also has plenary power to determine when probation
may be terminated. It has done so in § 13-901(E), which
provides:
The court, on its own initiative or on application of
the probationer, after notice and an opportunity to be
heard for the prosecuting attorney and, on request,
the victim, may terminate the period of probation or
intensive probation and discharge the defendant at a
time earlier than that originally imposed if in the
court's opinion the ends of justice will be served and
if the conduct of the defendant on probation warrants
it.
4
See also Ariz. R. Crim. P. 27.4(a) (“At any time during the term
of probation, upon motion of the probation officer or on its own
initiative, the court, after notifying the prosecutor, may
terminate probation and discharge the probationer absolutely as
provided by law.”).
¶9 Section 13-901(E) vests trial courts with broad
discretion to terminate probation. The State argues, however,
that the statute did not authorize the superior court to
terminate Lewis’s probation because he was “unsuccessful” – that
is, he had neither completed all required community service nor
paid all fines within the five-year probation period. The State
cites Arizona Rule of Criminal Procedure 27.8(c)(2), which
provides that “[u]pon a determination that a violation of a
condition or regulation of probation occurred, the court may
revoke, modify or continue probation,” and argues that the
superior court was limited to these three options.
¶10 Because the criteria for probation eligibility are a
substantive matter determined by the legislature, Rules of
Criminal Procedure cannot directly conflict with statutory
directives. See Ariz. Const. art. 6, § 5(4) (giving this Court
“[p]ower to make rules relative to all procedural matters in any
court”); Seisinger v. Siebel, 220 Ariz. 85, 92 ¶ 26, 203 P.3d
483, 490 (2009) (“[O]nce we determine that a statute conflicting
5
with a court-promulgated rule is ‘substantive,’ the statute must
prevail.”). Thus, if Rule 27.8(c)(2) were read to prohibit a
court from terminating probation despite its conclusion that the
“ends of justice will be served . . . and the conduct of the
defendant on probation warrants it,” A.R.S. § 13-901(E), the
Rule would exceed this Court’s rule-making powers.
¶11 But, as the court of appeals noted, there is no
inherent tension between Rule 27.8(c)(2) and § 13-901(E). See
Lewis, 224 Ariz. at 515 ¶ 18, 233 P.3d at 628. The Rule simply
recites options available to the trial court when a defendant
violates the terms of probation. But the legislature has
provided another option under certain limited circumstances. If
the superior court finds that, notwithstanding the defendant’s
failure to complete all terms of probation successfully, he has
nonetheless rehabilitated himself and no good purpose will be
served by further probation, § 13-901(E) provides the judge with
the discretion to terminate the probation.
¶12 Citing State v. Moore, the State argues that § 13-
901(E) does not grant authority to terminate probation that is
“unsuccessfully completed.” 149 Ariz. 176, 177, 717 P.2d 480,
481 (App. 1986). But technically, no term of probation is
successfully completed until it expires. Thus, the State’s
broad reading of Moore would vitiate § 13-901(E) by disallowing
early termination.
6
¶13 But more importantly, Moore does not stand for the
proposition advanced by the State. Moore expressly recognized
that the trial court may terminate probation under § 13-901(E)
when the ends of justice will be served and the defendant’s
conduct so warrants. Id. The court then correctly explained
that, by its terms, § 13-901(E) allows termination only if “the
defendant’s conduct is such as to indicate rehabilitation.” Id.
The Moore court’s dictum that the statute does not allow
termination when probation is “unsuccessfully completed” simply
reinforces the legislative mandate that before ordering
termination, the trial court must find that the defendant’s
conduct on probation was such as to demonstrate rehabilitation.2
C.
¶14 The court of appeals thus correctly held that a trial
court may terminate probation under § 13-901(E) when the
defendant has not completed all terms of probation. To be sure,
such a failure will typically indicate that the defendant is not
2
The State also relied below on State v. Hensley, which
stated that “once the court finds that a defendant has violated
probation, its only options are to revoke, modify, or continue
the terms of probation.” 201 Ariz. 74, 79 ¶ 21, 31 P.3d 848,
853 (App. 2001). But, as the opinion below noted, Hensley
interpreted A.R.S. § 13-901.01(E), which requires a court to
impose new probationary terms when a person violates the terms
of probation for a conviction for personal possession or use of
a controlled substance. Lewis was convicted of possession for
sale and § 13-901.01(E) does not apply to his case. See Lewis,
224 Ariz. at 515 ¶ 16 n.6, 233 P.3d at 628 n.6.
7
sufficiently rehabilitated to deserve termination, or, in the
words of the statute, that neither “the ends of justice” nor
“the conduct of the defendant on probation” justify early
termination. But, in an appropriate case, the statute
authorizes the trial court to terminate probation even if a
probationer has been unsuccessful in fulfilling all conditions
of probation within the original term.
¶15 The trial court here did not abuse its discretion in
terminating probation. See State v. Patel, 160 Ariz. 86, 89,
770 P.2d 390, 393 (App. 1989) (reviewing early termination of
probation for abuse of discretion). The probation officer had
recommended early termination, and Lewis’s exemplary conduct
after completing the inpatient program demonstrated his
rehabilitation. Section 13-901(E), which expressly allows
termination decisions to be based on the “opinion” of the trial
court, entrusts broad discretion to the judges most able to
determine the situation of a particular defendant in deciding
whether sufficient rehabilitation has occurred to warrant
termination. The judge here had ample evidence from which she
could so conclude. The court’s conclusion that the “ends of
justice” would not be served by continuing on probation a
defendant who had already completed hundreds of hours of
8
community service and paid most of his fines and fees was well
within its statutory discretion.3
¶16 Nor was continuing probation necessary to ensure
payment of Lewis’s outstanding fines and fees. The trial court
is required to enter a civil judgment when probation is
terminated, affirming the obligation of a defendant to pay
outstanding costs, fees, fines, and restitution. A.R.S. § 13-
805(A)(1), (A)(2) (2010). The superior court appropriately did
so here.
III.
¶17 For the foregoing reasons, we hold that § 13-901(E)
permits a court to terminate the probation of a defendant who
has not completed all required community service or paid all
outstanding fines and fees if the statutory prerequisites are
met. We also hold that the superior court did not abuse its
discretion in finding that the interests of justice and Lewis’s
conduct while on probation warranted termination of his
probation. We therefore affirm the opinion of the court of
appeals and the order of the superior court.
3
We encourage trial judges to make a record of their reasons
for concluding that termination of probation is appropriate
under § 13-901(E) when the defendant has failed to satisfy all
conditions of probation. Such a record serves to ensure
compliance with the statutory requisites and facilitates
appellate review.
9
_______________________________________
Andrew D. Hurwitz, Vice Chief Justice
CONCURRING:
___________________________________
Rebecca White Berch, Chief Justice
___________________________________
W. Scott Bales, Justice
___________________________________
A. John Pelander, Justice
10