State v. Botkin

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0299-PR
Appellant, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 07-0083
SEAN WAYNE BOTKIN, )
) Maricopa County
Appellee. ) Superior Court
) No. CR2000-016781
)
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Teresa A. Sanders, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division One
219 Ariz. 466, 200 P.3d 323 (App. 2008)

VACATED
________________________________________________________________

ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By David E. Wood, Deputy County Attorney
Attorneys for State of Arizona

OSBORN MALEDON, P.A. Phoenix
By Larry A. Hammond
Timothy J. Eckstein
Attorneys for Sean Wayne Botkin
________________________________________________________________

H U R W I T Z, Justice

¶1 If a criminal defendant is eligible for probation, the

superior court may suspend imposition of sentence and “place the
person on intensive probation.” A.R.S. § 13-901(A) (Supp.

2008); see A.R.S. § 13-913 (2001) (defining “intensive

probation” as “a program . . . of highly structured and closely

supervised probation which emphasizes the payment of

restitution”). Upon notice to the State and any victim, see

A.R.S. § 13-901(E), the court “may at any time modify the level

of supervision of a person granted intensive probation, or may

transfer the person to supervised probation or terminate the

period of intensive probation,” A.R.S. § 13-917(A) (2001).

¶2 At issue in this case is A.R.S. § 13-917(B), which

provides in pertinent part as follows:

If a petition to revoke the period of intensive
probation is filed and the court finds that the person
has committed an additional felony offense or has
violated a condition of intensive probation which
poses a serious threat or danger to the community, the
court shall revoke the period of intensive probation
and impose a term of imprisonment as authorized by
law.

The question is whether this provision deprives the superior

court of authority to transfer the defendant from intensive to

supervised probation after a petition to revoke has been filed

but before any finding that the defendant committed the

additional felony offense has been made.

I.

¶3 On March 9, 2001, Sean Wayne Botkin pleaded guilty to

two counts of kidnapping and one count of aggravated assault

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(the “2000 Offenses”) arising from an incident that occurred

when he was fourteen years old. Botkin was placed on intensive

probation for seven years on the kidnapping charges and for five

years on the aggravated assault charge. He was incarcerated in

the county jail for twelve months as a condition of probation.

¶4 After his release from custody, Botkin allegedly gave

four prescription pills to a high school classmate. He was

charged with transfer of prescription drugs (the “2004

Offense”), a class 6 felony. See A.R.S. § 13-3406(A)(7), (B)(2)

(Supp. 2005).

¶5 The Adult Probation Department filed a petition to

revoke Botkin’s intensive probation on the 2000 Offenses. See

Ariz. R. Crim. P. 27.6(a) (providing for petition to revoke

probation). In December 2004, while the petition was pending,

Botkin entered into a plea agreement stipulating to a term of

imprisonment for the 2004 Offense. In return, the State agreed

to dismiss allegations of prior felony convictions and the

allegation that the 2004 Offense occurred while Botkin was on

probation.

¶6 At a joint change-of-plea and probation violation

hearing, the superior court accepted the plea and found that the

commission of the 2004 Offense violated Botkin’s probation. At

the subsequent sentencing and probation disposition hearing, the

court sentenced Botkin to one year in prison for the 2004

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Offense. See A.R.S. § 13-708(C) (Supp. 2008) (requiring that a

defendant convicted of a felony offense while on probation

receive not less than the presumptive sentence for that

offense).1 The court, however, rejected the State’s demand that

Botkin also be imprisoned for the 2000 Offenses, instead

transferring Botkin from intensive to supervised probation.

¶7 The State appealed, arguing that because the superior

court had determined that Botkin had committed an additional

felony, it was required under § 13-917(B) to revoke intensive

probation and imprison Botkin for the 2000 Offenses. The court

of appeals agreed, vacating the order reinstating Botkin on

supervised probation for the 2000 Offenses and remanding to the

trial court. State v. Botkin, 1 CA-CR 05-0082 (Ariz. App. Feb.

28, 2006) (mem. decision).

¶8 By the time the memorandum decision was issued, Botkin

had already served the sentence imposed for the 2004 Offense.

After remand, Botkin moved to withdraw his plea to the 2004

Offense, contending that he had not been aware that the plea

would subject him to mandatory prison sentences for the 2000

Offenses. The State did not oppose Botkin’s motion, and the

_______________________________ 
1
   This provision was previously codified at A.R.S. § 13-
604.02(B) (2001). It was renumbered and amended, without
substantive change, as § 13-708(C). 2008 Ariz. Sess. Laws, ch.
301, §§ 17, 32 (2d Reg. Sess.). This opinion cites to current
versions of statutes that have not been materially changed since
the time of their application to this case.

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trial court allowed the plea to be withdrawn, thus vacating the

conviction for the 2004 Offense. Over the State’s objection,

the court then granted Botkin’s motion to reduce the intensive

probation imposed for the 2000 Offenses to supervised probation.

Botkin later pleaded guilty to the 2004 Offense and was

sentenced to time already served. The court ordered that Botkin

continue on supervised probation for the 2000 Offenses.

¶9 The State again appealed. A divided panel of the

court of appeals reversed and remanded. State v. Botkin, 219

Ariz. 466, 472 ¶ 29, 200 P.3d 323, 329 (App. 2008). Although

“presum[ing] that the trial court had good reasons . . . to

allow Botkin to continue on probation” after his second plea to

the 2004 Offense, id. at 468 ¶ 11, 200 P.3d at 325, the majority

concluded that § 13-917(B) prohibited the judge from

transferring Botkin to supervised probation after the filing of

the petition to revoke, id. at 470 ¶ 21, 200 P.3d at 327.2

¶10 The dissenting judge argued that § 13-917(B) applies

only if the defendant is on intensive probation when the court

finds he committed an additional felony offense. Id. at 474-75

¶¶ 40-43, 200 P.3d at 331-32 (Kessler, J., dissenting). Because
_______________________________ 
2
The majority questioned whether Botkin’s guilty plea to the
2004 Offense was “intelligent and voluntary,” see Boykin v.
Alabama, 395 U.S. 238 (1969), because the trial court did not
inform him that this plea would require imprisonment for the
2000 Offenses, and therefore remanded for the trial court to
address that issue. Botkin, 219 Ariz. at 472 ¶ 27, 200 P.3d at
329.
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the superior court had vacated Botkin’s previous guilty plea to

the 2004 Offense before it resolved the petition to revoke, the

dissent reasoned that the court retained authority under § 13-

917(A) to transfer Botkin to supervised probation for the 2000

Offenses. Id. at 475 ¶ 44, 200 P.3d at 332. Botkin’s

subsequent plea to the 2004 Offense did not trigger § 13-917(B),

the dissent concluded, because “a court cannot revoke an

intensive probation which no longer exists.” Id. at 474 ¶ 40,

200 P.3d at 331.

¶11 Botkin petitioned for review. Although the facts of

this case are unusual, we granted review because interpretation

of § 13-917(B) is an issue of first impression, see Ariz. R.

Crim. P. 31.19(c), and Botkin faces a substantial prison

sentence under the opinion below. We have jurisdiction under

Article 6, Section 5(3) of the Arizona Constitution and A.R.S.

§ 13-4036 (2001).

II.

¶12 This case involves the intersection of two subsections

of A.R.S. § 13-917. Subsection (A) provides that the trial

court may transfer a person from intensive to supervised

probation “at any time.” Subsection (B) directs that “the court

shall revoke the period of intensive probation and impose a term

of imprisonment” upon the occurrence of certain events.

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¶13 The State contends that § 13-917(A) only permits the

superior court to transfer a person from intensive to supervised

probation when no petition to revoke is pending. Subsection

(A), however, contains no such limiting language. Rather, it

allows the trial court to transfer a person from intensive to

supervised probation “at any time.” A.R.S. § 13-917(A). Thus,

the State’s argument perforce rests entirely on § 13-917(B),

which mandates certain consequences when a court finds that a

probationer has committed a new felony offense.

¶14 Botkin argues that the consequences mandated by § 13-

917(B) – revocation of intensive probation and a mandatory

prison term – are not triggered by the filing of the revocation

petition alone, but also require a finding that an additional

felony was committed, and that § 13-917(A) permits the superior

court to modify the level of probation until such a finding is

made. The language of the statute supports Botkin’s

interpretation. Subsection (B) applies only when “a petition to

revoke the period of intensive probation is filed and the court

finds that the person has committed an additional felony

offense.” A.R.S. § 13-917(B) (emphasis added); see State v.

Getz, 189 Ariz. 561, 563, 944 P.2d 503, 505 (1997) (“The best

and most reliable index of a statute’s meaning is its language

. . . .” (quoting In re Pima County Juvenile Appeal No. 74802-2,

164 Ariz. 25, 33, 790 P.2d 723, 731 (1990))). The statute

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requires the concurrence of two events before revocation of

intensive probation and a term of imprisonment are mandated.

Subsection (B) does not speak to the trial court’s ability to

reduce the level of supervision before it finds a probation

violation; rather, it speaks to what the court must do after it

finds the violation.

¶15 Because § 13-917(A) allows the court to reduce the

level of probation at “any time,” the statute, read as a whole,

requires a term of imprisonment only if the court had not

reduced the level of probation before finding the additional

felony violation. Given the withdrawal of Botkin’s original

plea to the 2004 Offense and the superior court’s modification

of the level of probation before its acceptance of Botkin’s

second plea to the 2004 Offense, that is precisely what occurred

here.

¶16 In effect, the State argues that because Botkin

committed the offense while on intensive probation, the

consequences in § 13-917(B) are mandated. But the legislature

knows well how to provide for consequences that flow from the

fact of commission of a crime, as opposed to the date of

conviction. Section 13-708(C), for example, requires

imprisonment if a probationer is convicted of a second felony

offense “that is committed while the person is on probation.”

In contrast, the consequences mandated in § 13-917(B) are

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triggered only if the defendant is on intensive probation when

the violation is found. Until then, the court retains authority

under § 13-917(A) to transfer the person from intensive to

supervised probation.

III.

¶17 The State argues that construing § 13-917(A) to allow

a court to transfer a defendant to supervised probation after a

petition is filed – but before the court finds the commission of

an additional felony offense – renders the contested sentence

from § 13-917(B) superfluous. See City of Tucson v. Clear

Channel Outdoor, Inc., 209 Ariz. 544, 552 ¶ 31, 105 P.3d 1163,

1171 (2005) (“Whenever possible, we do not interpret statutes in

such a manner as to render a clause superfluous.”). We

disagree. The statute unequivocally instructs the superior

court that once it finds that a defendant on intensive probation

has committed a new felony, it has no discretion but to revoke

the probation and impose a term of imprisonment.

¶18 The State also suggests that unless the opinion below

is affirmed, trial judges will render § 13-917(B) ineffectual,

by routinely transferring defendants to supervised probation

before deciding whether a violation has occurred. But this

assumes that superior court judges can – and will – inevitably

reduce the level of probation whenever a petition to revoke is

9 
filed. We are confident, however, that such occurrences will be

rare.

¶19 In almost all cases in which a defendant on intensive

probation commits a new felony, the State will promptly petition

to revoke intensive probation, and the court will promptly hold

a disposition hearing. It is unlikely that the defendant will

have done anything warranting transfer to supervised probation

in the period between the alleged violation and the hearing.

Indeed, although § 13-917(A) provides a trial court with

discretion to transfer a defendant from intensive to supervised

probation, a judge would abuse that discretion by ordering such

a transfer after the filing of the revocation petition simply to

avoid the consequences mandated by § 13-917(B). Thus, in most

cases, § 13-917(B) will mandate a term of imprisonment when a

defendant on intensive probation commits an additional felony

offense.

¶20 This, however, is an extraordinary case. Here,

through no fault of the defendant, more than two years passed

between the filing of the petition to revoke and the superior

court’s ultimate finding that Botkin had committed the 2004

Offense. For some eighteen of those months – from August 2005,

when Botkin was released from prison after fully serving his

original sentence on the 2004 Offense, until February 2007, when

the court accepted his second plea to the 2004 Offense – Botkin

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was, as the superior court noted, for all intents and purposes

on supervised probation. During that period, as the probation

department reported, Botkin “maintained full compliance with the

conditions of his supervised probation[,] . . . enrolled at Mesa

Community College, paid his fine in full, completed all of his

community service hours, and remained drug and alcohol free.”

¶21 In transferring Botkin to supervised probation, the

superior court made clear that it was not reducing the level of

probation to avoid application of § 13-917(B), but rather in

recognition of Botkin’s significant progress during the

substantial period since his release from prison. Given the

unusual circumstances of this case, we cannot conclude that the

court abused its discretion in doing so.3

IV.

¶22 For the reasons above, we vacate the opinion of the

court of appeals and affirm the superior court’s order

transferring Botkin from intensive to supervised probation.

_______________________________ 
3
  The State also relies on A.R.S. § 13-903(D) (2001), which
provides that the “running of the period of probation shall
cease” upon the filing of a petition to revoke. But this
provision has nothing to do with the trial court’s power to
modify levels of probation under § 13-917(A). Rather, it is
designed to prevent a revocation petition from being mooted
before it can be adjudicated. See State v. White, 115 Ariz.
199, 205, 564 P.2d 888, 894 (1977) (holding that the court lacks
authority to revoke probation after period of probation
expires).
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 _______________________________________
Andrew D. Hurwitz, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

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