State v. Moore

548 P.3d 656

STATE of Arizona, Appellant,

v.Michael Jermaine MOORE, Appellee.

No. 1 CA-CR 21-0459

Court of Appeals of Arizona, Division 1.

Filed April 2, 2024

Appeal from the Superior Court in Maricopa County, No. CR2014-102199-001, The Honorable Roger L. Hartsell, Judge Pro Tempore (retired). VACATED AND REMANDED

Maricopa County Attorney’s Office, Phoenix, By Quinton S. Gregory, Counsel for Appellant

Maricopa County Public Defender’s Office, Phoenix, By Damon A. Rossi, Counsel for Appellee

Judge Paul J. McMurdie delivered the Court’s opinion, in which Presiding Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.

OPINION

McMURDIE, Judge:

¶1 The State appealed the superior court’s order vacating Michael Moore's probation extension and dismissing the probation revocation petition. In a previous opinion, we reversed the court’s order. State v. Moore, 254 Ariz. 317, 318, ¶ 1, 522 P.3d 1108, 1109 (App. 2022), vacated in part, CR-23-0027-PR, 2023 WL 2782750, at *1 (Ariz. Apr. 4, 2023). The supreme court granted Moore’s petition for review, vacated paragraphs 12 and 14 of our opinion, and remanded the case with instructions to address these issues:

(1) whether probationers have a right to counsel or a hearing before probation is extended; (2) if so, whether Moore knowingly, intelligently, and voluntarily waived his right(s); and (3) if he did not, whether the constitutional defect(s) rendered the trial court’s order extending Moore’s probation void, as opposed to voidable, such that it could be vacated at any time.

Moore, CR-23-0027-PR, at *1.

¶2 In answering the issues identified, we hold that probationers have the right to notice and a hearing before probation is extended. A probationer may waive these rights if the waiver is knowingly, intelligently, and voluntarily made. But a probationer has no right to the assistance of counsel before deciding whether to waive the extension rights. In applying these holdings to this appeal, we conclude that the record is insufficient to evaluate whether Moore knowingly, intelligently, and voluntarily waived his rights. Assuming, as directed by the supreme court, that Moore did not waive his rights, we determine that such an error renders the extension order voidable, not void. Thus, it is waived because Moore did not raise the issue timely.

¶3 Based on these holdings, we reverse the superior court’s order vacating the probation extension and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

¶4 In May 2015, Moore pled no contest to theft, a Class 6 designated felony. After a sentencing hearing, the superior court suspended imposing a sentence and placed Moore on three years of probation with mental health terms. The court ordered him to make restitution payments as a condition of his probation. Per the parties’ stipulation, the court ordered Moore to pay $699 in restitution to the victim.

¶5 The probation conditions signed by Moore noted that failure to pay restitution could lead to a probation extension. During Moore’s original probation term, probation officers notified him that he was delinquent on his restitution payments. The officers warned Moore that the court could extend his probation if he failed to pay the restitution.

¶6 In May 2018, Moore’s probation officer petitioned the court to modify Moore’s probation terms. The petition asserted there remained an unpaid balance for restitution and recommended extending probation for five years under A.R.S. § 13-902(C). The petition read:

The term of probation shall be extended for a period of five years from 7/21/2018 pursuant to A.R.S. 13-902C. The defendant shall continue to abide by all conditions as previously ordered by the Court and remit any unpaid balance of restitution prior to the expiration of probation.

I, MICHAEL JERMAINE MOORE, have read the above petition (and/or) had the petition explained to me and fully understand probation will be extended to provide me with an opportunity to complete the payment of restitution. In addition, I voluntarily waive my right to counsel and/or a Court hearing regarding this matter.

Moore signed the form. There is no evidence in the record that Moore sought counsel’s advice before signing. Based on the petition and Moore’s waiver of counsel and a hearing, the superior court granted the petition and extended the probation period.

¶7 During the extended probation period, Moore made sporadic restitution payments and continued to report to his probation officer in compliance with the probation conditions. In June 2021, Moore’s probation officer petitioned to revoke Moore’s probation, alleging Moore had committed a misdemeanor criminal offense and failed to pay the restitution.

¶8 Moore moved to vacate the imposed probation extension and dismiss the revocation petition. Moore asserted he was deprived of constitutionally guaranteed rights to notice, an opportunity to be heard, and counsel before the court materially modified the original probation. And he asserted that his purported waiver of those rights was not made knowingly, intelligently, or voluntarily. The State responded that Moore had adequate notice of the probation extension and had no right to counsel or a hearing before the extension. The State posited that even if Moore were entitled to counsel and a hearing, Moore waived those rights by agreeing to do so, as evidenced by the extension document.

¶9 The superior court vacated the probation extension, terminated Moore’s probation at the end of the original probation term, and dismissed the revocation petition. The superior court found Moore’s probation was extended "without the notice or presence of the parties." It also found that Moore was not appointed counsel or advised of his right to counsel before signing the petition. As a result, the court determined the waiver to extend probation was not knowingly, intelligently, and voluntarily made. Finally, the court found that the probation extension Moore signed did not give him adequate notice that the extension applied to all probation terms, not just the restitution term.

¶10 The State appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4032(4). Moore, 254 Ariz. at 319, ¶ 9, 522 P.3d at 1110.

DISCUSSION

¶11 The State challenges the superior court’s order vacating the probation extension. It asserts that Moore had no constitutional, statutory, or procedural right to a hearing or counsel before the court extended the probation. The State argues in the alternative that even if Moore were entitled to counsel or a hearing, he waived those rights and was not entitled to counsel or a hearing before waiving such rights.¹

[1] ¶12 We review legal issues, including constitutional questions, de novo. See State v. Korzuch, 186 Ariz. 190, 192, 920 P.2d 312, 314 (1996). We defer to the superior court’s factual findings unless they are clearly erroneous. See Mack v. Cruikshank, 196 Ariz. 541, 544, ¶ 6, 2 P.3d 100, 103 (App. 1999).

¶13 "An extension of a probationary term is unquestionably a modification of the term." Korzuch, 186 Ariz. at 193, 920 P.2d at 315. "If the court has required, as a condition of probation, that the defendant make restitution" payments, the court may extend the probation if "that condition has not been satisfied." A.R.S. § 13-902(0. For a felony, the court may extend the probation up to five years. Id. § 13-902(C)(1). And a court can modify any probation condition before the probation term expires. A.R.S. § 13-901(C); see also Ariz. R. Crim. P. 27.3(b). But probation modifications must comply with due process. Ariz. R. Crim. P. 27.3(b)(1); see also Nieuwenhuis v. Kelly, 164 Ariz. 603, 606, 795 P.2d 823, 826 (App. 1990) ("Although trial courts clearly have authority to modify probation terms, due process imposes limitations on the kind of modifications that can be made[.]"), overruled in part on other grounds by State v. Bradley, 175 Ariz. 504, 505-06, 858 P.2d 649, 650-51 (1993); Green v. Superior Court, 132 Ariz. 468, 471, 647 P.2d 166, 169 (1982) (Several statutes, as well as constitutional due process considerations, limit the court’s authority "to impose, modify, or revoke probation.").

A. Due Process Guarantees Probationers Notice and a Hearing Before Extending Probation.

[2, 3] ¶14 To determine what process is due, we consider the "nature of the government function involved as well as of the private interest that has been affected by governmental action." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (quoting Cafeteria & Rest. Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)). "[D]ue process affords some procedural protections even to those with reduced liberty interests." Korzuch, 186 Ariz. at 193, 920 P.2d at 315. For example, due process guarantees probationers a hearing before the court can revoke probation because probation revocations may lead to liberty deprivations. Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

[4] ¶15 A probation extension prolongs a defendant’s time to perform certain conditions to avoid a sentence. See Wilson v. Higgins, 251 Ariz. 282, 285, ¶ 15, 491 P.3d 389, 392 (2021) (defining probation); see also Moore, 254 Ariz. at 319, ¶ 1, 522 P.3d at 1110; State v. Jimenez, 188 Ariz. 342, 345, 935 P.2d 920, 923(App. 1996). And even though a probation extension does not lead directly (or necessarily) to the same liberty deprivations as imprisonment, "a violation of the extension and modification could result in a loss of freedom." Korzuch, 186 Ariz. at 193, 920 P.2d at 315.

[5] ¶16 In Korzuch, our supreme court reviewed a probation extension imposed on the probationer without notice. 186 Ariz. at 192, 920 P.2d at 314. The court acknowledged that multiple federal circuits had held that due process did not entitle a probationer to notice and a hearing before an extension or modification.² Id. at 193, 920 P.2d at 315. Our supreme court, however,...