State v. Lewis

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0211-PR
Appellant, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 09-0127
TROY JASON LEWIS, )
) Apache County
Appellee. ) Superior Court
) No. CR2003-112
)
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Apache County
The Honorable Donna J. Grimsley, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division One
224 Ariz. 512, 233 P.3d 625 (App. 2010)

AFFIRMED
________________________________________________________________

MICHAEL B. WHITING, APACHE COUNTY ATTORNEY St. Johns
By Martin Brannan, Chief Deputy County Attorney
Attorneys for State of Arizona

LAW OFFICE OF EMILY DANIES Tucson
By Emily L. Danies
Attorney for Troy Jason Lewis
________________________________________________________________

H U R W I T Z, Vice Chief Justice

¶1 A term of probation may be terminated “at a time

earlier than that originally imposed if in the court’s opinion

the ends of justice will be served and if the conduct of the
defendant on probation warrants it.” A.R.S. § 13-901(E) (2010).1

We granted review in this case to determine whether a court may

terminate probation despite a defendant’s failure to complete

all required community service and pay all outstanding fees and

fines.

I.

¶2 In 2003, Troy Jason Lewis pleaded guilty to possession

of a dangerous drug for sale. The superior court placed him on

probation for five years and ordered him to perform forty hours

per month of community service and pay $5400 in fines and fees.

¶3 While on probation, Lewis tested positive for

methamphetamine three times and was incarcerated for each

violation. After the third violation, Lewis was placed in an

inpatient rehabilitation program for 180 days. Lewis

successfully completed the program and has remained drug-free.

Lewis completed vocational training and has been steadily

employed for several years. He has married, has two children,

and regularly attends church.

¶4 Lewis’s term of probation was to expire on September

13, 2008. His probation officer petitioned for termination of

probation on September 3, 2008. The petition noted that Lewis

had not completed all required community service and had not

1
We cite the current version of the statute because it has
not been materially revised since the events that gave rise to
this case.

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paid all outstanding fees and fines, but nonetheless recommended

“unsuccessful termination” and the entry of a civil judgment for

the remaining fees and fines. The State objected and filed a

petition to revoke probation. Between October and December

2008, Lewis paid most of the delinquent fines. On December 4,

2008, his probation officer reported to the court that Lewis had

completed 347 hours of community service, appeared “sincere in

his desire to improve his life,” and opined that “continued

probation would be of little benefit.”

¶5 At a disposition hearing on December 8, 2008, Lewis

addressed the court and acknowledged responsibility for the

unpaid fines and fees. The trial court noted that Lewis had

received letters of support from the community. Although

finding that Lewis had neither paid all required fines nor

completed all required community service, the court nonetheless

decided to terminate probation, stating:

Mr. Lewis, I tend to agree with you that probation is
designed for rehabilitation, and I’m not certain that
there’s anything that probation can assist you with at
this point in time to complete any rehabilitative
process. It seems that those efforts have been made,
and I don’t think we’re going to get better by keeping
you on probation.

Therefore, I am going to follow the recommendation. I
will unsuccessfully terminate your probation today
because there’s . . . an outstanding amount, and that
will be entered as a judgment against you.

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¶6 The State appealed. A divided court of appeals

affirmed the termination of Lewis’s probation. State v. Lewis,

224 Ariz. 512, 513 ¶ 1, 233 P.3d 625, 626 (App. 2010). Judge

Hall dissented, arguing that § 13-901(E) “does not authorize a

trial court to grant early release to a defendant whose

performance while on probation has been unsatisfactory.” Id. at

517 ¶ 27, 233 P.3d at 630 (Hall, J., dissenting).

¶7 We granted review to resolve a recurring issue of

statewide importance. See ARCAP 23(c)(3). We have jurisdiction

under Article 6, Section 5(3) of the Arizona Constitution and

A.R.S. § 12-120.24 (2003).

II.

A.

¶8 “The trial court’s power to grant probation is not

inherent but is derived from . . . statutory authority.” State

v. Carter, 116 Ariz. 595, 597, 570 P.2d 763, 765 (1977). The

legislature also has plenary power to determine when probation

may be terminated. It has done so in § 13-901(E), which

provides:

The court, on its own initiative or on application of
the probationer, after notice and an opportunity to be
heard for the prosecuting attorney and, on request,
the victim, may terminate the period of probation or
intensive probation and discharge the defendant at a
time earlier than that originally imposed if in the
court's opinion the ends of justice will be served and
if the conduct of the defendant on probation warrants
it.

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See also Ariz. R. Crim. P. 27.4(a) (“At any time during the term

of probation, upon motion of the probation officer or on its own

initiative, the court, after notifying the prosecutor, may

terminate probation and discharge the probationer absolutely as

provided by law.”).

¶9 Section 13-901(E) vests trial courts with broad

discretion to terminate probation. The State argues, however,

that the statute did not authorize the superior court to

terminate Lewis’s probation because he was “unsuccessful” – that

is, he had neither completed all required community service nor

paid all fines within the five-year probation period. The State

cites Arizona Rule of Criminal Procedure 27.8(c)(2), which

provides that “[u]pon a determination that a violation of a

condition or regulation of probation occurred, the court may

revoke, modify or continue probation,” and argues that the

superior court was limited to these three options.

¶10 Because the criteria for probation eligibility are a

substantive matter determined by the legislature, Rules of

Criminal Procedure cannot directly conflict with statutory

directives. See Ariz. Const. art. 6, § 5(4) (giving this Court

“[p]ower to make rules relative to all procedural matters in any

court”); Seisinger v. Siebel, 220 Ariz. 85, 92 ¶ 26, 203 P.3d

483, 490 (2009) (“[O]nce we determine that a statute conflicting

5
with a court-promulgated rule is ‘substantive,’ the statute must

prevail.”). Thus, if Rule 27.8(c)(2) were read to prohibit a

court from terminating probation despite its conclusion that the

“ends of justice will be served . . . and the conduct of the

defendant on probation warrants it,” A.R.S. § 13-901(E), the

Rule would exceed this Court’s rule-making powers.

¶11 But, as the court of appeals noted, there is no

inherent tension between Rule 27.8(c)(2) and § 13-901(E). See

Lewis, 224 Ariz. at 515 ¶ 18, 233 P.3d at 628. The Rule simply

recites options available to the trial court when a defendant

violates the terms of probation. But the legislature has

provided another option under certain limited circumstances. If

the superior court finds that, notwithstanding the defendant’s

failure to complete all terms of probation successfully, he has

nonetheless rehabilitated himself and no good purpose will be

served by further probation, § 13-901(E) provides the judge with

the discretion to terminate the probation.

¶12 Citing State v. Moore, the State argues that § 13-

901(E) does not grant authority to terminate probation that is

“unsuccessfully completed.” 149 Ariz. 176, 177, 717 P.2d 480,

481 (App. 1986). But technically, no term of probation is

successfully completed until it expires. Thus, the State’s

broad reading of Moore would vitiate § 13-901(E) by disallowing

early termination.

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¶13 But more importantly, Moore does not stand for the

proposition advanced by the State. Moore expressly recognized

that the trial court may terminate probation under § 13-901(E)

when the ends of justice will be served and the defendant’s

conduct so warrants. Id. The court then correctly explained

that, by its terms, § 13-901(E) allows termination only if “the

defendant’s conduct is such as to indicate rehabilitation.” Id.

The Moore court’s dictum that the statute does not allow

termination when probation is “unsuccessfully completed” simply

reinforces the legislative mandate that before ordering

termination, the trial court must find that the defendant’s

conduct on probation was such as to demonstrate rehabilitation.2

C.

¶14 The court of appeals thus correctly held that a trial

court may terminate probation under § 13-901(E) when the

defendant has not completed all terms of probation. To be sure,

such a failure will typically indicate that the defendant is not

2
The State also relied below on State v. Hensley, which
stated that “once the court finds that a defendant has violated
probation, its only options are to revoke, modify, or continue
the terms of probation.” 201 Ariz. 74, 79 ¶ 21, 31 P.3d 848,
853 (App. 2001). But, as the opinion below noted, Hensley
interpreted A.R.S. § 13-901.01(E), which requires a court to
impose new probationary terms when a person violates the terms
of probation for a conviction for personal possession or use of
a controlled substance. Lewis was convicted of possession for
sale and § 13-901.01(E) does not apply to his case. See Lewis,
224 Ariz. at 515 ¶ 16 n.6, 233 P.3d at 628 n.6.

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sufficiently rehabilitated to deserve termination, or, in the

words of the statute, that neither “the ends of justice” nor

“the conduct of the defendant on probation” justify early

termination. But, in an appropriate case, the statute

authorizes the trial court to terminate probation even if a

probationer has been unsuccessful in fulfilling all conditions

of probation within the original term.

¶15 The trial court here did not abuse its discretion in

terminating probation. See State v. Patel, 160 Ariz. 86, 89,

770 P.2d 390, 393 (App. 1989) (reviewing early termination of

probation for abuse of discretion). The probation officer had

recommended early termination, and Lewis’s exemplary conduct

after completing the inpatient program demonstrated his

rehabilitation. Section 13-901(E), which expressly allows

termination decisions to be based on the “opinion” of the trial

court, entrusts broad discretion to the judges most able to

determine the situation of a particular defendant in deciding

whether sufficient rehabilitation has occurred to warrant

termination. The judge here had ample evidence from which she

could so conclude. The court’s conclusion that the “ends of

justice” would not be served by continuing on probation a

defendant who had already completed hundreds of hours of

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community service and paid most of his fines and fees was well

within its statutory discretion.3

¶16 Nor was continuing probation necessary to ensure

payment of Lewis’s outstanding fines and fees. The trial court

is required to enter a civil judgment when probation is

terminated, affirming the obligation of a defendant to pay

outstanding costs, fees, fines, and restitution. A.R.S. § 13-

805(A)(1), (A)(2) (2010). The superior court appropriately did

so here.

III.

¶17 For the foregoing reasons, we hold that § 13-901(E)

permits a court to terminate the probation of a defendant who

has not completed all required community service or paid all

outstanding fines and fees if the statutory prerequisites are

met. We also hold that the superior court did not abuse its

discretion in finding that the interests of justice and Lewis’s

conduct while on probation warranted termination of his

probation. We therefore affirm the opinion of the court of

appeals and the order of the superior court.

3
We encourage trial judges to make a record of their reasons
for concluding that termination of probation is appropriate
under § 13-901(E) when the defendant has failed to satisfy all
conditions of probation. Such a record serves to ensure
compliance with the statutory requisites and facilitates
appellate review.

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 _______________________________________
Andrew D. Hurwitz, Vice Chief Justice

CONCURRING:

___________________________________
Rebecca White Berch, Chief Justice

___________________________________
W. Scott Bales, Justice

___________________________________
A. John Pelander, Justice

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