Opinion
No. 1 CA-CR 20-0122
02-23-2021
STATE OF ARIZONA, Appellant, v. SCOTT F. BAXTER, Appellee.
COUNSEL Maricopa County Attorney's Office, Phoenix By Robert A. Walsh Counsel for Appellant Lane Hupp & Crowley PLC, Phoenix By Jonathan Hupp Counsel for Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. CR 2019-125556-001
The Honorable Joseph P. Mikitish, Judge
REMANDED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Robert A. Walsh
Counsel for Appellant
Lane Hupp & Crowley PLC, Phoenix
By Jonathan Hupp
Counsel for Appellee
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which Presiding Judge D. Steven Williams and Judge James B. Morse Jr. joined.
CAMPBELL, Judge:
¶1 The State of Arizona appeals the superior court's denial of its motion to withdraw from a plea agreement with Scott Baxter after the court rejected the probation stipulations contained in the agreement at sentencing. The State argues it should have been permitted to withdraw from the agreement when the court rejected the stipulated initial jail term. Arizona Rules of Criminal Procedure ("Rule") 17.4(e) grants both parties the opportunity to withdraw from a plea agreement if the superior court rejects any of its terms or conditions and the defendant has waived double jeopardy protection. State ex rel. Polk v. Hancock, 237 Ariz. 125, 130, ¶ 16 (2015). Because the stipulated provision was legal and the court precluded the State from withdrawing from the plea deal, we remand to the superior court for proceedings consistent with this decision.
BACKGROUND
¶2 Scottsdale police found Scott Baxter passed out in the driver's seat of his car, foot on the brake, with the engine running. Baxter was found to be in possession of heroin, a narcotic drug. Baxter had multiple past drug offenses and was on probation at the time. The State charged Baxter with possession or use of narcotic drugs ("Count 1"), a class 4 felony, A.R.S. § 13-3408(A)(1), and possession or use of marijuana ("Count 2"), a class 6 felony, A.R.S. § 13-3405(A)(1). The State subsequently alleged Baxter had a prior felony conviction and was on probation, and additional aggravating factors to be considered at sentencing should he be convicted. Importantly, the State alleged that Baxter would be ineligible for probation pursuant to A.R.S. § 13-901.01 if convicted after trial.
¶3 Plea negotiations ensued resulting in Baxter entering into a plea agreement with the State. Baxter agreed to plead guilty to Count 1, possession or use of narcotic drugs, and the State agreed to dismiss Count 2, possession or use of marijuana, as well as the allegation of a prior felony conviction, and the allegation that Baxter was on felony probation at the
time of the crime. The agreement contained a number of stipulations "subject to court approval at the time of sentencing."
¶4 Relevant here, the parties agreed that
if granted probation Defendant shall be placed on supervised probation, the terms of which shall include . . . an initial term of [eight] months flat in the Maricopa County Jail not to be deleted or deferred. . . .
The agreement also contained the right of each party to withdraw from the plea agreement should the court reject any of the stipulations contained therein. Specifically,
[t]he State's participation in this plea agreement is conditional upon the [c]ourt's acceptance of its terms, conditions, or provisions. If after accepting this plea the court concludes that any of the plea agreement's terms, conditions, or provisions regarding the sentence or any other aspect of this plea agreement are inappropriate, it can reject the plea. If the court decides to reject any of the plea agreement's terms, conditions, or provisions, it must give both the State and the Defendant an opportunity to withdraw from the plea agreement.
Importantly, the parties also agreed that, "[s]hould the [c]ourt reject this plea agreement, or the State withdraws from the agreement, the Defendant hereby waives all claims of double jeopardy and all original charges will automatically be reinstated."
¶5 As agreed, Baxter pled guilty to Count 1, possession or use of narcotic drugs. Finding that Baxter entered the plea knowingly, intelligently, and voluntarily, and that there was a factual basis to support his plea of guilt, the court accepted the guilty plea. Baxter then requested a mitigation hearing and filed a sentencing memorandum. In the memo, Baxter detailed the origin and history of his substance abuse problems, as well as his rehabilitation efforts. In the presentence report, the Adult Probation Department ("APD") recommended deferring the 8-month term of imprisonment because it "believed that jail might interrupt [Baxter's] efforts toward achieving long term sobriety." The APD advocated that Baxter be placed on supervised probation with the jail term "used as a sanction should [Baxter] fail to abide by probation requirements in the future."
¶6 At a status conference before the sentencing hearing, the parties discussed the stipulated initial jail term. The court asked the State if anything in the presentence report or the mitigation information made it rethink the stipulated jail term. The State informed the court that its position had not changed and that it intended to withdraw from the plea agreement if the stipulated jail term were not imposed. The court told the State, "I don't think you have the authority to do that. So that's my view of things. The terms of jail are a term of probation which is in the discretion of the Court." However, the court also informed the State that it would review any legal precedent offered by the State on that point.
¶7 While the State acknowledged the superior court's jurisdiction over probationers in its sentencing memorandum, it argued that under State v. Oatley, the State must be given the opportunity to withdraw from a plea agreement if the court refuses to impose a negotiated term of the agreement. 174 Ariz. 124, 126-27 (App. 1993). The State then directed the court to the language in the plea agreement, stating that "[w]hile the court can indeed impose any lawful sentence within the plea agreement, if outside the sentencing parameters established by the parties in the plea agreement, both parties must have the opportunity to withdraw."
¶8 At the sentencing hearing, the superior court stated, "I am going to exercise what I believe is my discretion to modify the probation terms on [Baxter's] jail term to change [his] initial jail term to a deferred jail term." The court then placed Baxter on supervised probation for three years with a deferred eight-month jail term. The State objected to the court deferring the stipulated upfront jail term. The State then urged the court to reconsider imposing the stipulated initial jail term and asked that, if the court "[was]n't inclined to do that, we would just ask to withdraw from the plea." The court denied the State's requests, concluding it had the authority to proceed with the deferred jail term and to deny the State's motion to withdraw. The State timely appeals.
DISCUSSION
¶9 "Because the [superior] court's ruling did not depend on the resolution of any factual issues, we review the ruling de novo as a matter of law." Polk, 237 Ariz. at 129, ¶ 12. Rule 17.4 governs plea negotiations and agreements. "The parties may negotiate and reach agreement on any aspect of a case," Rule 17.4(a), "except as limited by public policy or the law," Polk, 237 Ariz. at 129, ¶ 13. This language has been interpreted broadly to mean "the State and the defendant may bargain both as to the
plea of guilty and as to the sentence to be imposed." State v. Superior Court, 125 Ariz. 575, 577 (1980) (disapproved on other grounds).
¶10 "[A] plea bargain can be obtained only by agreement among the defendant, his counsel and the prosecuting attorney, subject to the approval of the trial court." State v. Morse, 127 Ariz. 25, 31-32 (1980); see also Rule 17.4(b), (d). Either party may withdraw from the agreement before the superior court has accepted the guilty plea. Rule 17.4(b). However, an accepted plea constitutes a conviction. Polk, 237 Ariz. at 129, ¶ 14. Consequently, when the court accepts the plea, "jeopardy attaches and the State, with exception, may not unilaterally withdraw from the plea agreement." Aragon v. Wilkinson, 209 Ariz. 61, 64, ¶ 7 (App. 2004); see also Williams v. Superior Court, 130 Ariz. 209, 210 (1981) ("Rejecting the plea after acceptance and setting the case for trial constitutes double jeopardy."). "If the defendant waives double jeopardy protection, however, then the state can withdraw from the plea agreement" after it has been accepted. Polk, 237 Ariz. at 130, ¶ 15.
¶11 When the superior court accepts the plea, it is not bound by the provisions of the plea agreement "concerning the sentence or the term and conditions of probation." Id. at 129, ¶ 13; Rule 17.4(d). However, if the court rejects a provision of the agreement, Rule 17.4(e) grants both parties the option to withdraw from it. Aragon, 209 Ariz. at 64-65, ¶ 8; State v. Superior Court, 125 Ariz. at 578 (stating that Rule 17.4(e) implicitly authorizes the State to withdraw if the court rejects a plea agreement or any of its provisions) (disapproved on other grounds); but see State v. Robertson, 249 Ariz. 256, 262, ¶ 25 (2020) ("[T]he [S]tate may not rescind a plea agreement because an illegal term is excised from the agreement."). If either party withdraws, "the agreement is void and the parties are returned to their original positions. If neither party elects to withdraw, the court may proceed to impose a sentence within the legal range." Aragon, 209 Ariz. at 64-65, ¶ 8 (internal citation omitted).
I. Right to Withdraw
¶12 The State argues the superior court erroneously denied its motion to withdraw from the plea agreement after the court rejected Baxter's stipulated initial eight-month jail term. The State maintains that, because the court rejected this provision of the agreement, it had the right to withdraw under Rule 17.4(e).
¶13 Baxter argues that the mandatory initial term of incarceration is an illegal and unenforceable provision of the plea
agreement, and that the court "clearly indicated that an [eight-month] initial jail term would be inapposite for probation's purpose of continued support of Baxter's rehabilitation." He points to Rule 27.1(b) for support: "[t]he sentencing court may impose conditions on a probationer that promote rehabilitation and protect any victim." (emphasis added). He adds that terms of probation must exhibit a "reasonable nexus between the condition imposed and the goals to be achieved by the probation." State v. Kessler, 199 Ariz. 83, 88, ¶ 21 (App. 2000) (citation omitted). According to Baxter, the court "was legally allowed to only impose terms and conditions of probation that did not violate a procedural rule or the stated public policy (or purpose) of probation to promote rehabilitation and the community."
¶14 The State argues the initial jail term is not illegal because it was authorized by A.R.S. § 13-901(F) (empowering the superior court to require imprisonment of up to one year as part of probation); did not violate Rule 27.1(b) (recognizing the protection of victims as a goal of probation); and was reasonably related to the goals and purpose of probation. We agree with the State—the court is authorized to impose jail as part of a grant of probation, even if it has a detrimental effect on a defendant's drug rehabilitation. See State v. Christopher, 133 Ariz. 508, 510 (1982) (explaining that probation has many goals, including retribution, general deterrence, protection of the public, and alleviating costs of incarceration); see also Polk, 237 Ariz. at 131, ¶¶ 22-23 (allowing the state to withdraw from a plea agreement when a stricken stipulated probation term had both a permissible and impermissible purpose). The initial jail term stipulated in the plea agreement was legal.
¶15 The issue before us, then, is whether the court erred by refusing to allow the State to withdraw after rejecting a legal provision of the plea agreement. The superior court was not bound by the sentencing provisions of a plea agreement. Id. at 129, ¶ 13. The court was at liberty to reject the initial jail term if it found it inappropriate in Baxter's case. However, upon rejecting the provision, Rule 17.4(e) required the court to allow the State's withdrawal because 1) the provision is not illegal, 2) the State timely objected and moved to withdraw from the agreement, and 3) Baxter waived double jeopardy protection. "Unless the plea agreement specifically gives the court discretion to do otherwise, the court may not vary the terms of the plea agreement without consent of the parties." State v. Superior Court, 125 Ariz. at 578 (disapproved on other grounds). Because the State did not consent, the court lacked authority to ignore the stipulations in the plea agreement and "the attempted sentence was a
nullity and, in law, never imposed." Id. We therefore remand this case for proceedings consistent with this decision.
II. Separation of Powers
¶16 Lastly, the State argues that the superior court violated the separation of powers under the Arizona Constitution by denying the State's motion to withdraw from the plea agreement and proceeding to sentencing over the State's objection. Because we reverse the superior court's decision based on an error of law, we need not address whether the error violated the separation of powers. See State v. Rios, 225 Ariz. 292, 296, ¶ 12 (App. 2010) ("To the extent possible, we avoid deciding constitutional issues if the case can be resolved on non-constitutional grounds.").
CONCLUSION
¶17 For the foregoing reasons, we remand for further proceedings consistent with this decision.