State v. Montgomery

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

THEODORE J. MONTGOMERY, Appellee.

No. 1 CA-CR 24-0532
FILED 07-31-2025

Appeal from the Superior Court in Maricopa County
No. CR2020-147804-001
The Honorable Rodney Mitchell, Judge

AFFIRMED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Johnny Jacquez
Counsel for Appellant

Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellee
 STATE v. MONTGOMERY
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Angela K. Paton delivered the decision of the Court, in
which Judge Daniel J. Kiley and Judge Brian Y. Furuya joined.

P A T O N, Judge:

¶1 The State of Arizona appeals the superior court’s order
reinstating Theodore J. Montgomery’s probation term and adding a 146-
day jail term as a condition of probation. For the following reasons, we
affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In March 2021, Montgomery pled guilty to one count of
aggravated assault under Arizona Revised Statutes (“A.R.S.”) Section 13-
1204(A)(2). The plea agreement stipulated to supervised probation. The
superior court imposed a term of two years’ supervised probation
beginning June 1, 2021.

¶3 In March 2023, the probation department petitioned to revoke
Montgomery’s probation, alleging he violated his probation terms by
committing four criminal offenses on March 12, 2023, among other things,
which the court granted in September 2023. In October 2023, the superior
court found Montgomery violated the conditions of his June 2021 probation
by committing new offenses. The court reinstated Montgomery’s probation
but extended the probation term to three years, to begin on November 9,
2023. The court also imposed a 90-day jail term with 151 days of credit, to
begin on November 9, 2023.

¶4 In September 2024, the probation department again
petitioned to revoke Montgomery’s probation, alleging he violated three
terms of his probation in August 2024. Montgomery was arrested. The
superior court held a disposition hearing in September 2024, during which
Montgomery admitted to violating a term of his probation by failing to
attend anger management classes. The court reinstated Montgomery’s
probation, this time for two years beginning June 2021 with a revised
expiration date of February 5, 2025. The court also imposed a 146-day jail
term beginning September 12, 2024, and ending the same day his probation
term was set to end.

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 STATE v. MONTGOMERY
Decision of the Court

¶5 The State timely appealed. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution and Sections 12-120.21(A)(1), 13-
4031, and 13-4032(4).

DISCUSSION

¶6 The State argues the superior court can only revoke, modify,
or continue probation, so the court erred by imposing “an entirely novel
punishment” by reinstating Montgomery’s probation but requiring him to
remain incarcerated until the end of his probation term. The State further
contends that the superior court effectively terminated Montgomery’s
probation by requiring him to serve the rest of the June 2021 probation term
in jail, and terminally disposing of Montgomery’s probation is “not
authorized by Arizona statutes, violates due process and victims’ rights,
and illegally modifies the plea agreement.”1 According to the State,
incarcerating Montgomery for the remainder of his probation term, rather
than revoking his probation and sentencing him under the sentencing range
for a class three felony, amounts to an illegally lenient sentence. See A.R.S.
§ 13-1204(A)(2). Finally, the State contends that the superior court illegally
modified the plea agreement by refusing to revoke or continue
Montgomery’s probation.

¶7 We review a superior court’s probation disposition decision
for an abuse of discretion. See State v. Dean, 226 Ariz. 47, 50, ¶ 7 (App. 2010).
The superior court has the authority to modify the original conditions of
probation. State v. Gatlin, 171 Ariz. 418, 421 (App. 1992). But its power to
impose probation is derived from statutory authority. State v. Lewis, 226
Ariz. 124, 126, ¶ 8 (2011).

¶8 Under Section 13-901(C), the court “may modify or add to the
conditions [of probation] or, if the defendant commits an additional offense
or violates a condition, may revoke probation.” A.R.S. § 13-901(C)
(emphasis added). Thus, the court is not required to revoke probation upon
a violation. But if the court revokes probation, it “must pronounce sentence
in accordance with Rule 26.” Ariz. R. Crim. P. 27.8(c)(2). And a court may
modify or revoke probation at any point before the probation term expires
or terminates. See Dean, 226 Ariz. at 51, ¶ 11; see also State v. Contreras, 180
Ariz. 450, 453 (App. 1994). A court may also choose to add a condition of

1 The court also reinstated Montgomery’s three-year probation term that

began in November 2023, but the State clarified it was not appealing that
reinstatement. We thus do not review the second probation term
reinstatement on appeal.

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 STATE v. MONTGOMERY
Decision of the Court

probation to “require that the defendant be imprisoned in the county jail at
whatever time or intervals, consecutive or nonconsecutive, the court shall
determine, within the period of probation, as long as the period actually
spent in confinement does not exceed one year or the maximum period of
imprisonment allowed under chapter 7 of [Title 13], whichever is the
shorter.” A.R.S. § 13-901(F).

¶9 The State argues that “when a [superior] court revokes
probation, it must impose a term of incarceration based on the underlying
conviction.” This is true under Arizona Rule of Criminal Procedure
27.8(c)(2), but the superior court did not revoke Montgomery’s probation
here.2 Rather, at the September 2024 disposition hearing, the court
reinstated Montgomery’s two-year probation term that had started in June
2021, with a revised term of three years to end on February 5, 2025. This
was within the court’s authority under Section 13-901(C) because the court
modified his probation by extending it and adding a 146-day jail term as a
condition of probation.

¶10 The State argues that the superior court’s imposition of a 146-
day jail term to end on the same day his probation ended “granted
Montgomery the windfall of ending his probation with a brief jail term.”
But as previously discussed, the court is authorized to modify the terms of
Montgomery’s probation by reinstating and revising its length and
conditions to include the 146-day jail term. See A.R.S. § 13-901(F). And a
146-day jail term falls within Section 13-901(F)’s permitted length because
it was under one year. See id.

¶11 Finally, we address the State’s argument that the court
violated the plea agreement by reinstating Montgomery’s probation. The
plea agreement provided that if Montgomery “fails to abide by the
conditions of community supervision, [he] can be required to serve the
remaining term of community supervision in prison.” (emphasis added).
The agreement does not, however, stipulate that the court must sentence
Montgomery to prison if he violates his probation, nor does it specify the

2 In the superior court’s supplemental disposition report filed on September

19, 2024, the clerk wrote that Montgomery’s probation was revoked. This
contradicts the court’s statements at the disposition hearing, during which
the court stated it was reinstating Montgomery’s probation. But the oral
pronouncement of a sentence prevails over a written entry. See State v.
Ovante, 231 Ariz. 180, 188, ¶ 38 (2013) (holding that an oral pronouncement
of a sentence in open court controls over a written minute entry).

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 STATE v. MONTGOMERY
Decision of the Court

length of his probation term. Cf. State v. Rutherford, 154 Ariz. 486, 488-89
(App. 1987). In the absence of a mandate, reinstatement was left to the
court’s discretion. See A.R.S. § 13-901(C).

¶12 We discern no error.

CONCLUSION

¶13 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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