State v. Woods

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JOEL WAYNE WOODS, Appellant.

No. 1 CA-CR 23-0477
FILED 09-17-2024

Appeal from the Superior Court in Maricopa County
No. CR2022-133138-001
The Honorable Michael S. Mandell, Judge

REVERSED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Mercer Law PLC, Mesa
By Stephen Mercer
Counsel for Appellant
 STATE v. WOODS
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision, in which
Presiding Judge Michael J. Brown and Judge Daniel J. Kiley joined.

W I L L I A M S, Judge:

¶1 Defendant Joel Wayne Woods appeals the trial court’s
determination that he is no longer eligible for mandatory probation under
A.R.S. § 13-901.01(G). For the following reasons, we reverse the court’s
ruling.

FACTS AND PROCEDURAL HISTORY

¶2 Subject to limited circumstances not applicable here, a
defendant convicted in Arizona of certain first- and second-time drug
offenses must be placed on probation. A.R.S. § 13-901.01(A), (B). And,
generally, if the probationer violates any term of his probation, the court is
obligated to reinstate the probationer on probation “with new conditions
. . . established by the court.” A.R.S. § 13-901.01(E).

¶3 But in 2002, Arizona voters passed Proposition 302 which
removed the statutory benefit of mandatory probation from a probationer
who has “refused to participate in drug treatment.” A.R.S. § 13-901.01(G);
see State v. Vaughn, 217 Ariz. 518, 520, ¶ 9 n.3 (App. 2008). Such a finding by
the trial court is called a “302” finding (in reference to the voter passed
referendum). Id. Following a 302 finding, a probationer is exposed to any
sentence otherwise available to a drug offender under Chapter 34 of Title
13, including imprisonment. A.R.S. § 13-901.01(G).

¶4 In 2022, Woods pled guilty to possession or use of narcotic
drugs, a Class 4 felony. The trial court placed Woods on probation as
required by § 13-901.01(A). The court provided Woods with a copy of the
written conditions of his three-year probation term, which Woods signed.
Relevant to this appeal were the following two conditions of probation:

11. I will actively participate and cooperate in any program
of counseling or assistance as determined by [the Adult
Probation Department (“APD”)], or as required by law, given
assessment results and/or my behavior. I will sign any release
or consent required by the APD so the APD can exchange

2
 STATE v. WOODS
Decision of the Court

information in relation to my treatment, behavior and
activities.

12. I will not possess or use illegal drugs or controlled
substances and will submit to drug and alcohol testing as
directed by the APD.

¶5 Two months later, Woods met with APD to further discuss
his conditions of probation. At that meeting his probation officer instructed
Woods to (1) schedule an intake and assessment with a drug treatment
provider by April 1, 2023 (12 days away), (2) complete substance abuse
treatment by July 1, 2023, and (3) submit to drug testing when directed.

¶6 Between March 2023 and May 2023, APD filed three separate
petitions to revoke Woods’ probation. Among other things, APD alleged
Woods “did not submit to drug testing” on two occasions and “did not
actively participate or cooperate in substance abuse counseling or
assistance.”

¶7 At an August 2023 probation violation hearing, Woods’
probation officer testified that Woods failed to submit to two drug tests, one
in February 2023 and one in May 2023, as directed. The probation officer
also testified that Woods never reported to APD that he contacted a
substance abuse treatment center, and that no treatment center provided
notice to APD that Woods had done so. The probation officer further
testified that Woods never signed a release of information form with any
treatment center so that the treatment center could provide documents and
information to APD. Woods offered no contradictory evidence at the
hearing.

¶8 After taking the matter under advisement, the court found,
inter alia, that Woods had violated conditions 11 and 12 of his probation:

The defendant did not actively participate and cooperate in
substance abuse counseling or assistance at Sage or Terros as
determined by Adult Probation Department . . .The defendant
knew he had to participate in substance abuse counseling. It
is the defendant’s responsibility to inform his probation
officer that he is participating [in] substance abuse counseling
and he did not.

...

3
 STATE v. WOODS
Decision of the Court

The defendant did not submit to drug testing as directed by
[APD] on 2/20/2023. . .The defendant knew he was supposed
to test and he did not.

...

The defendant did not submit to drug testing as directed by
[APD] on 5/20/2023 . . .

¶9 Two months after the probation violation hearing, a different
judicial officer presided over Woods’ disposition hearing where Woods
was also represented by different counsel. Woods’ new counsel informed
the court that he had a “Terros report in front of [him]”—not offered into
evidence at the probation violation hearing—which showed Woods “went
to the initial intake and was scheduled for classes, but . . . was arrested and
then couldn’t go to his classes.” Defense counsel argued that Woods was
not “rejecting” drug treatment and that the court was, therefore, obligated
to reinstate Woods on probation. For his part, Woods stated:

Your Honor, I’m not going to sit here and lie as if I don’t have
a [] drug problem. I am a recovering drug addict, and I [] feel
like I’ve made some progress in that regard . . . I did my initial
intake at Terros. I was set up to do a class . . . [but] I was
arrested . . . so I wasn’t never [sic] able to go again after that,
and I’ve been incarcerated ever since. I do want to have the
support of the probation department when I do get released,
whenever that may be. So that I can have more resources
available to me for my addiction upon release. But yeah . . . I
didn’t never [sic] refuse to do any drug treatment, I just was
not able to, due to my incarceration.

¶10 After some discussion, the court concluded that the written
findings made by the previous judicial officer were “sufficient to make a
302 finding.” Despite the violation, the court reinstated Woods on
probation so that he could “obtain one more opportunity . . . [to] get the
drug treatment” needed.

¶11 Woods timely appealed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1),
13-4031, and -4033(A)(3).

4
 STATE v. WOODS
Decision of the Court

DISCUSSION

¶12 Woods argues the trial court erred in finding that he refused
to participate in drug treatment. We will uphold a trial court’s probation
violation finding “unless the finding is arbitrary or unsupported by any
theory of evidence.” State v. Thomas, 196 Ariz. 312, 313, ¶ 3 (App. 1999).

¶13 Record evidence supports the trial court’s finding that Woods
violated various conditions of his probation, as well as the court’s reason
for reinstating Woods on probation. But we agree with Woods that the court
erred in making a 302 finding.

¶14 At the disposition hearing, the court noted it “read through
the [written] ruling that was done by [the previous judicial officer] in this
matter, who had the time to properly review everything that was provided
to the Court, and issued a detailed ruling.” Based upon the court’s review
of that written ruling, it concluded the prior judicial officer made sufficient
findings to support a 302 finding. We disagree.

¶15 The APD never alleged in any of its three petitions to revoke
probation that Woods “refused to participate in drug treatment.” Instead,
the closest allegation of refusal APD made was that Woods “did not
actively participate and cooperate in substance abuse counseling or
assistance.” To that end, the trial court’s written findings only reflect the
allegations APD made—that Woods “did not actively participate and
cooperate in substance abuse counseling or assistance.” See State v. Shivley, 234 Ariz. 560, 563, ¶ 10 (App. 2014) (explaining that under A.R.S.
§ 13-901.01(G), the court may make a 302 finding “only if it finds the
probationer refused to participate in drug treatment, and may not do so
based on a mere finding that he or she failed to do so.”). In other words, the
court made no express finding that Woods “refused” drug treatment.

¶16 Further, Woods’ two missed drugs tests, by themselves, are
insufficient to support a 302 finding of refusal. Vaughn, 217 Ariz. at 523,
¶ 25 (stating “we do not construe the bare allegations of drug use and
failure to submit to a drug test to be sufficient to support a finding that [the
defendant] refused to ‘participate in drug treatment.’”).

¶17 As discussed, supra ¶ 3, Arizona voters authorized a 302
finding only where a probationer has “refused to participate in drug
treatment.” A.R.S. § 13-901.01(G). Because APD never alleged Woods
refused drug treatment, and because the trial court (in its written findings
from the probation violation hearing) never found that Woods refused drug
treatment, the court erred at the disposition hearing in making a 302

5
 STATE v. WOODS
Decision of the Court

finding. Nevertheless, the court appropriately reinstated Woods on
probation.

CONCLUSION

¶18 For the foregoing reasons, we vacate the trial court’s 302
finding. On this record, Woods remains entitled to mandatory probation
under A.R.S. § 13-901.01(A).

AMY M. WOOD • Clerk of the Court
FILED: AGFV

6