State v. Nguyen

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HERCULES VU NGUYEN, Appellee.

No. 1 CA-CR 23-0181
FILED 4-4-2024

Appeal from the Superior Court in Maricopa County
No. CR2020-145645-001
The Honorable Anne H. Phillips, Judge Pro Tempore

VACATED AND REMANDED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Philip Casey Grove
Counsel for Appellant

Maricopa County Public Defender’s Office, Phoenix
By Kristen Reller
Counsel for Appellee
 STATE v. NGUYEN
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Angela K. Paton delivered the decision of the Court, in
which Judge Michael S. Catlett and Judge James B. Morse Jr. joined.

P A T O N, Judge:

¶1 The State appeals the superior court’s order terminating
Hercules Nguyen’s probation. Because the court terminated Nguyen’s
probation without providing the State notice and an opportunity to be
heard, as required by Arizona Revised Statutes (“A.R.S.”) Section 13-901(E)
and Arizona Rules of Criminal Procedure (“Rule”) 27.4(a), we vacate the
court’s order and remand for further proceedings consistent with this
decision.

FACTS AND PROCEDURAL HISTORY

¶2 In December 2020, the State charged Nguyen with sexual
abuse, indecent exposure, and refusing to provide his true name when
lawfully detained. Nguyen pled guilty to one count of attempted sexual
abuse in exchange for dismissal of the other charges. The superior court
sentenced Nguyen to ten years’ supervised probation. His probation term
started on June 14, 2021.

¶3 In July 2021, the probation department petitioned to revoke
Nguyen’s probation, alleging he failed to report to the department within
72 hours of sentencing and absconded—with whereabouts unknown since
June 17, 2021. The superior court issued a warrant for his arrest. In
September 2021, the department supplemented its petition with allegations
that Nguyen committed additional misdemeanor crimes.

¶4 Nguyen was arrested, and the superior court held a
revocation arraignment hearing. After the hearing, Nguyen’s counsel
moved for a Rule 11 evaluation of Nguyen’s competency, which the court
granted. The court then transferred the case to the Rule 11 court.

¶5 After a Rule 11 hearing in April 2022, the court found Nguyen
incompetent. The court also found there was no clear and convincing
evidence that Nguyen would not be restored to competency within 15
months. The court ordered that Nguyen receive treatment from a
behavioral health center.

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 STATE v. NGUYEN
Decision of the Court

¶6 In June 2022, the court held a hearing to reassess Nguyen’s
competency. During this hearing, the court again found Nguyen
incompetent. The court also found there was no substantial probability that
he would be restored to competency within 21 months. The court
dismissed the probation department’s petition to revoke probation,
effective upon Nguyen’s admission to a behavioral health center for an
inpatient evaluation.

¶7 An outpatient behavioral health clinic arranged to pick
Nguyen up from the inpatient center for court-ordered treatment in August
2022, but Nguyen had again absconded. The probation department was
unable to contact or locate Nguyen and filed another petition to revoke his
probation. He was subsequently arrested.

¶8 On April 18, 2023, the court held a second probation
revocation arraignment hearing. Nguyen’s counsel asked the court to
dismiss the petition to revoke. The court granted Nguyen’s motion to
dismiss without prejudice. The superior court ordered that Nguyen be
released from custody to a representative from his clinical team. The
corresponding release order indicated that he was given “[t]erminal
disposition with time served.”

¶9 In a minute entry filed one week later, the superior court
ruled: “Upon the Court’s own motion, IT IS ORDERED terminating
Defendant’s probation effective this date.” The court gave no explanation
for its sua sponte termination order.

¶10 The State timely appealed the court’s order. We have
jurisdiction under Article 6, Section 9, of the Arizona Constitution and
Sections 12-2101(A)(1), -120.21(A)(1), 13-4031, 13-4032(4).

DISCUSSION

¶11 The State contends the superior court erred by terminating
Nguyen’s probation eight years early without providing the State with
notice and an opportunity to be heard, as Section 13-901(E) and Rule 27.4(a)
require. We agree.

¶12 We review the superior court’s early termination of probation
for an abuse of discretion. State v. Lewis, 226 Ariz. 124, 126, ¶¶ 9, 15 (2011)
(citing State v. Patel, 160 Ariz. 68, 89 (App. 1989)). “‘[The superior] court
abuses its discretion if it misapplies the law or exercises its discretion based
on incorrect legal principles.’” State v. Reed, 252 Ariz. 328, 331, ¶ 13 (2022)
(citation omitted).

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 STATE v. NGUYEN
Decision of the Court

¶13 Section 13-901(E) provides that “the [superior] court, on its
own initiative . . . after notice and an opportunity to be heard for the prosecuting
attorney and, on request, the victim, may terminate the period of probation
. . . and discharge the defendant at a time earlier than that originally
imposed.” A.R.S. § 13-901(E) (emphasis added). Thus, before terminating
Nguyen’s probation, the superior court was required, at a minimum, to
provide the prosecuting attorney with notice and an opportunity to be
heard on the issue of termination. That did not occur here. Instead, the
superior court sua sponte terminated Nguyen’s probation in a signed
minute entry filed one week after the second probation revocation hearing,
at which there was no mention of terminating Nguyen’s probation. Because
the court failed to give the prosecuting attorney any notice of its intent to
terminate Nguyen’s probation before entering the order, as Section 13-
901(E) requires, we hold the court erred.

¶14 The State also contends the superior court abused its
discretion by not giving Rule 27.4(a)(1)(A) notice to the State, the
probationer, and the probation department and by not considering an
investigation report, as Rule 27.4(a)(1)(B) requires, before terminating
Nguyen’s probation. Specifically, Rule 27.4(a)(1) provides that “the court
may terminate probation and discharge the probationer as provided by law
after: giving notice to the State, the probationer, and the probation
department; and considering an investigation report.” Ariz. R. Crim. P.
27.4(a)(1)(A), (B) (emphasis added). As discussed above, the superior court
terminated Nguyen’s probation without providing any notice to the parties.
Thus, the court also erred by violating Rule 27.4(a)(1).

¶15 The State also argues the superior court abused its discretion
by terminating probation without deciding whether doing so served the
interests of justice or whether Nguyen’s conduct on probation warranted it.
We need not reach these issues because the court cannot make those
findings under Section 13-901(E) without first notifying the State that it is
considering terminating an individual’s probation, which did not occur
here.

¶16 Nguyen raises several arguments generally defending the
superior court’s decision to terminate his probation, including that
continuing his probation would subject him to “limitless incarceration” and
“imposing additional punishment on an incompetent defendant” would
violate due process. But because we hold the court failed to comply with
the law and rule before terminating Nguyen's probation, we express no
position on the merits of the underlying decision.

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 STATE v. NGUYEN
Decision of the Court

¶17 The superior court failed to comply with Section 13-901(E)
and Rule 27.4(a) and, thus, erred when it terminated Nguyen’s probation.

CONCLUSION

¶18 We vacate the superior court’s order terminating Nguyen’s
probation and remand for further proceedings consistent with this decision.

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

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