State v. Litton

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

JENNIFER RENEE LITTON, Appellant.

No. 1 CA-CR 24-0068
FILED 07-30-2024

Appeal from the Superior Court in Yavapai County
No. V1300CR201980286
The Honorable Michael R. Bluff, Judge
The Honorable Tina R. Ainley, Judge

VACATED AND REMANDED

COUNSEL

Yavapai County Attorney’s Office, Camp Verde
By Patti M. Wortman
Counsel for Appellee

John Trebon, P.C., Flagstaff
By John Trebon
Counsel for Appellant

STATE v. LITTON
Decision of the Court

MEMORANDUM DECISION

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

B R O W N, Judge:

¶1 Jennifer Litton appeals the superior court’s order denying her
motion to designate her trespassing offense as a misdemeanor. For reasons
that follow, we vacate the order and remand for further proceedings.

BACKGROUND

¶2 In July 2020, Litton pled guilty to criminal trespass and theft.
Under the plea agreement, the theft charge was designated a misdemeanor,
but the trespass charge was left undesignated pursuant to A.R.S. § 13-604.
The agreement stated that “any undesignated offense cannot be designated
a misdemeanor until Defendant successfully completes a term of
probation.” The superior court suspended Litton’s sentence and placed her
on supervised probation for three years. As pertinent here, the court’s
August 2020 ruling stated that Litton was found guilty of criminal trespass
in the first degree, “a Class 6 undesignated felony.”

¶3 In November 2022, the probation department petitioned the
superior court for revocation of Litton’s probation, alleging, in part, that
Litton had violated the terms of her probation by leaving Arizona without
permission. The court held a hearing in February 2023, where defense
counsel indicated that the parties had reached an agreement for Litton to
admit the violation and be reinstated to probation. The court advised
Litton:

Currently you’re on probation for a Class 6 undesignated
felony and a Class 1 misdemeanor. By admitting you violated
your probation, your probation could be revoked. Class 6
felony can be designated, you could be sent to prison.
Presumptive term is one year.

¶4 After confirming that Litton understood the consequences of
admitting the violation, the court accepted the admission and immediately
proceeded to the disposition portion of the hearing, without objection from
either party.

2

STATE v. LITTON
Decision of the Court

¶5 After hearing brief remarks from defense counsel and Litton,
the court found that although Litton committed a probation violation,
reinstating her to probation (with about nine months remaining) was still
appropriate. Whether Litton’s trespass offense should be designated as
either a felony or a misdemeanor was not addressed by either party or the
court. However, in the judgment issued after the hearing, the court listed
criminal trespass in the first degree as “a Class 6 Designated Felony.” The
judgment also confirmed that Litton was reinstated on supervised
probation for nine months.

¶6 In November 2023, Litton was discharged from probation.
The next day she moved to designate her offense as a misdemeanor “in light
of her successful completion of probation.” Litton believed that the
judgment mistakenly referred to the trespass offense as a “’[d]esignated
felony’” because the court never specifically addressed it at the February
hearing. In her motion, Litton also requested, if necessary, “a hearing to
consider this matter.” Shortly after Litton filed her motion, the case was
assigned to a different judge as part of the court’s judicial rotation.

¶7 The State opposed the motion, asserting the judgment “shows
that the offense was designated a felony,” and thus it cannot now be
designated a misdemeanor. The State also disputed that Litton had
“successfully completed probation” because of her earlier violation as well
as a continuing obligation to pay restitution. In her reply, Litton claimed
that all fines, fees, and restitution were paid before her probation was
terminated. She also emphasized that the superior court “did not consider
nor designate the offense as a felony” at the hearing.

¶8 The superior court denied Litton’s motion, reasoning that the
citations used and the plain language of the judgment made it clear the
prior judge intended to designate the offense as a felony. Litton’s motion
for reconsideration was summarily denied and she timely filed a notice of
appeal.

DISCUSSION

A. Appellate Jurisdiction

¶9 We have an independent obligation to ensure we have
appellate jurisdiction. State v. Stowe, 254 Ariz. 203, 205, ¶ 4 (App. 2022).
Generally, defendants who admit to a probation violation “may not appeal
from a judgment or sentence that is entered pursuant to . . . [that]
admission,” A.R.S. § 13-4033(B), and “may seek review only by filing a
petition for post-conviction relief” under Arizona Rule of Criminal

3

STATE v. LITTON
Decision of the Court

Procedure 33. Ariz. R. Crim. P. 27.9(a)(5). However, as noted by Litton in
her opening brief, under A.R.S. § 13-4033(A)(3), a defendant has the right
to appeal from “[a]n order made after judgment affecting the substantial
rights of the party.”

¶10 Because Litton has challenged the superior court’s order
denying her motion to designate her trespass offense as a misdemeanor
based on, inter alia, lack of notice and an opportunity to be heard, her
substantial rights have been affected. See State v. Delgarito, 189 Ariz. 58,
60–61 (App. 1997) (explaining that a felony designation imposes significant
consequences affecting substantial rights and finding appellate jurisdiction
under § 13-4033(A)(3) where the defendant “raised the issue of whether the
trial court deprived him of due process by failing to notify him and hold a
hearing in advance of the felony designation”). Thus, we have appellate
jurisdiction under § 13-4033(A)(3).

B. Designation of the Offense

¶11 Litton argues that although she was warned of a “possible
felony designation,” the superior court did not designate the offense as
either a misdemeanor or a felony at the disposition hearing, which means
the judgment is incorrect. Litton requests that the record “be corrected to
reflect reality” and that due process requires she be given the opportunity
to present evidence and be heard before the offense is designated.

¶12 We review the superior court’s designation of a felony for an
abuse of discretion. See State v. Soriano, 217 Ariz. 476, 481, ¶ 15 (App. 2008).
We review constitutional questions de novo. Fann v. State, 251 Ariz. 425,
432, ¶ 17 (2021). Under A.R.S. § 13-604(A), if the court finds a
non-dangerous, class six felony conviction “unduly harsh,” it may choose
to designate the conviction as a class one misdemeanor. See State v. Russell, 226 Ariz. 416, 418, ¶¶ 7–8 (App. 2011). In making such a determination, the
court should consider “the nature and circumstances of the crime and . . .
the history and character of the defendant.” A.R.S. § 13-604(A).

¶13 According to the State, the superior court designated the
trespass offense as a felony at the hearing, but nothing in the record
supports that assertion. At the hearing, the court found Litton had violated
probation for the offenses she had pled guilty to in 2020 but did not address
whether criminal trespass would now be designated as a misdemeanor or
as a felony. In the subsequent judgment, however, the court listed the
offense as being a designated Class 6 felony. When a court’s oral
pronouncement of the sentence is inconsistent with its written ruling, the

4

STATE v. LITTON
Decision of the Court

“[o]ral pronouncement in open court controls.” State v. Ovante, 231 Ariz.
180, 188, ¶ 38 (2013) (citation omitted). Because the court’s judgment
addresses a matter that did not occur at the hearing—specifically,
designation of the offense—on remand the court should amend the
judgment to reflect that the offense remained an undesignated felony.

¶14 Moreover, the superior court’s designation of the offense as a
felony in the judgment failed to comply with Arizona Rule of Criminal
Procedure 26.10(c)(3), which requires a court to “explain to the defendant
the terms of the sentence or probation” when pronouncing its ruling.
During the disposition hearing, designation of the offense was never
addressed either by the parties or by the court. However, in the court’s
written judgment that followed, it was. In that judgment, the court used
essentially the same language it did in its August 2020 written ruling except
for changing “undesignated felony” to “Designated felony.” But the court
did so without alerting Litton it would be making that determination as
part of the judgment. See State v. Davis, 105 Ariz. 498, 502 (1970) (“[T]he
rule of law governing the modification of a judgment which affects the
substantial rights of a defendant requires his presence.”)

¶15 The State also disputes Litton’s assertion that she was denied
due process. When the superior court exercises its discretion to designate
an offense as a felony under A.R.S. § 13-604, the defendant is entitled to due
process. See State v. Smith, 166 Ariz. 118, 120 (App. 1990) (recognizing that
given the significant consequences associated with the designation of an
offense as a felony, due process requires notice and an opportunity to be
heard before the trial court’s determination).

¶16 The State argues that no due process violation occurred
because Litton received notice of the hearing, was told that the trespass
offense “could be designated,” and was given the opportunity to be heard
“before Disposition where the designation was made.” Be that as it may,
the trespass offense was not designated as a felony at the disposition
hearing. And simply because Litton was informed that the offense could be
designated does not mean that the court addressed the issue or gave Litton
the chance to be heard before making its determination on that issue.1 State

1 Without analysis, the State refers to the following statement from
State v. Shlionsky, 184 Ariz. 631, 632 (App. 1996): “Because one of the
possible outcomes of the hearing was probation revocation and a prison
sentence, petitioner was necessarily on notice that the offense might be
designated a felony.” That sentence, unsupported by legal authority, is

5

STATE v. LITTON
Decision of the Court

v. Stocks, 227 Ariz. 390, 394, ¶ 7 (App. 2011) (“[D]ue process requires notice
and an opportunity to be heard at a meaningful time and in a meaningful
manner.”). On remand, the court should afford Litton a hearing on her
motion to designate the offense a misdemeanor.

CONCLUSION

¶17 We vacate the superior court’s order denying Litton’s motion
and remand for further proceedings consistent with this decision.

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

dicta because the issue of whether the defendant’s crime should have been
designated a felony was specifically addressed at a hearing, and defense
counsel was allowed to argue against it. See id. Also, as far as our research
reveals, the quoted portion has not been cited in any subsequent appellate
decisions. See id.

6