State v. Brown

Citations: 532 P.2d 167; 23 Ariz. App. 225Docket: 1 CA-CR 711

Court: Court of Appeals of Arizona; April 29, 1975; Arizona; State Appellate Court

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In the case of State of Arizona v. John Henry Brown, the Court of Appeals addressed the appeal from a probation revocation by the Maricopa County Superior Court, which imposed a sentence of three to five years in prison. A critical preliminary issue was whether the right to appeal a probation revocation under the 1973 Rules of Criminal Procedure was available. The court determined that it must ascertain its jurisdiction to hear the appeal based on this issue.

The criminal action against Brown began on August 4, 1972, prior to the implementation of the 1973 rules, which would seemingly apply the old rules. However, the Arizona Supreme Court's decision in Noble v. State indicated that certain provisions of the new rules could apply retroactively. Specifically, Rule 27 of the 1973 rules, concerning probation revocation, stipulates that challenges to such revocations must be made through a petition for post-conviction relief under Rule 32, rather than through an appeal as was permitted under the previous rules.

Rule 32.1 outlines the grounds for such petitions, including challenges to the lawfulness of the sentence imposed and custody status after revocation. The court emphasized that probationers wishing to contest a revocation must utilize the Rule 32 procedures, underscoring a significant procedural shift from prior practices.

Noble v. State establishes that petitions for post-conviction relief filed after September 1, 1973, are governed by Rule 32, indicating that the only means to contest a probation revocation is through this rule. Consequently, there is no direct right to appeal such revocations occurring after this date. Probationers must seek post-conviction relief under Rule 32 before pursuing appellate review. Despite the clear directive of Rule 32.1(d) that limits the review process, Rule 27.7(d) and Rule 26.11 create ambiguity by advising defendants of their right to appeal after a sentence is pronounced, which may lead to confusion. This has resulted in many defendants, including the appellant, opting for appeals. A notable case, State v. Corrales, reinforced the view that appeals from probation revocations are not permissible, directing that a Rule 32 petition is the proper course. Nonetheless, this opinion concludes that a probationer may choose to either file a timely appeal under Rule 31 or pursue a Rule 32 petition for post-conviction relief. The original proposed rules included an appeal process for post-conviction relief, but this was revised to a discretionary review mechanism, suggesting that the right to appeal was deemed outside the Arizona Supreme Court's modification powers, leading to the adoption of Rule 32.9.

The Court has the authority to assess the constitutionality of rules from the Arizona Supreme Court but opts not to base its decision on potential violations of the Arizona Constitution regarding the appeal of probation revocation. Although there is speculation about the inadvertent comments in Rule 32.1(d) regarding the appeal process, it recognizes the confusion faced by appellants who are told they have both the right to appeal and are simultaneously informed they do not. Consequently, the Court concludes that both appeal and post-conviction relief options under Rule 32 should be available to appellants. The preferred method for review is typically through an appeal under Rule 31; however, if new evidence arises after the initial hearings that could affect the lawfulness of the revocation or sentence, a Rule 32 petition is more suitable. The Court notes that the probation revocation procedures established in light of significant U.S. Supreme Court rulings were not fully recognized at the time of the 1973 rule drafting. Therefore, the Court finds no justification for requiring a Rule 32 hearing as a prerequisite for appellate review, except in rare cases where further evidence may be needed. Until the Arizona Supreme Court issues further direction, probationers seeking to review their revocation and sentence can do so by filing a timely appeal under Rule 31 or a Rule 32 petition for post-conviction relief.

The court confirms its jurisdiction over the appeal and addresses the appellant's arguments regarding the revocation hearing. The appellant contends that the evidence against him was hearsay, violating his Sixth Amendment right to confront witnesses, and lacked reliability as per Rule 27.7 (c)(3) of the Rules of Criminal Procedure. He also claims the trial court incorrectly denied him credit for 90 days served in county jail as part of his probation terms. 

The case stems from a plea bargain in 1972, where the appellant was found guilty of grand theft and placed on five years of probation with conditions prohibiting drug use and association with drug users. A bench warrant was issued in 1973 after the appellant tested positive for various drugs, leading to his arrest. During the subsequent proceedings, he denied the allegations against him, and a hearing was scheduled.

The court evaluates the appellant's claim regarding the hearsay testimony provided by probation officer Loyd from a hospital report, asserting it infringed on his confrontation rights. Citing relevant case law, the court acknowledges probation as a protected liberty under the 14th Amendment, which requires due process, including the right to confront accusers. However, it clarifies that this right is not absolute and may be limited if there is good cause for restrictions, as established in Morrissey v. Brewer and Gagnon v. Scarpelli. These cases indicate that while due process is necessary, it can be adapted according to the context of probation hearings.

State v. Marlar holds that hearsay evidence should only be admitted in probation revocation hearings if the trial judge finds good cause for not allowing confrontation, but this ruling predates Arizona's new criminal procedure rules and is not applicable. The U.S. Supreme Court cases Morrissey and Gagnon emphasize flexibility in evidence admission, allowing for non-live testimony under appropriate circumstances. Arizona's Rule 27.7 (c)(3) permits reliable hearsay in revocation hearings, aligning with constitutional standards without undermining confrontation rights, as feared in Marlar. The reliability of hearsay must be determined by the trial court's discretion, ensuring a reasonable assurance of truthfulness. In the case at hand, the probation officer's foundational testimony regarding laboratory reports demonstrated their reliability, and the trial court did not abuse its discretion in prioritizing judicial economy over the defendant's unsupported objections to the admissibility of the reports and testimony.

The appellant contended that he should receive credit for 90 days served in Maricopa County Jail due to a prior modification of his probation terms. However, court precedent indicates that a sentence is only imposed after probation is revoked, making this period of incarceration equivalent to presentence detention. The appellant was found guilty of grand theft, which has a maximum sentence of ten years under A.R.S. 13-671(A). He was sentenced to three to five years, within the statutory limit. It is assumed that the trial court factored the 90 days of confinement into the sentencing decision. The court found no abuse of discretion in the trial court's decision, thus affirming the revocation and sentence. Judges Jacobson and Eubank concurred. Additionally, notes reference the establishment of the Arizona Proposed Rules of Criminal Procedure and relevant constitutional provisions regarding the right to appeal and the Arizona Supreme Court's rulemaking authority.