Opinion
No. 1 CA-CR 12-0372
05-02-2013
STATE OF ARIZONA, Appellee, v. JERRY LEE JOHNSON, Appellant.
Thomas C. Horne, Arizona Attorney General by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section and Melissa M. Swearingen, Assistant Attorney General Attorneys for Appellee Jill L. Evans, Mohave County Appellate Defender Attorney for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Mohave County
Cause No. S8015CR20070400
The Honorable Lee Frank Jantzen, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
by Joseph T. Maziarz, Chief Counsel,
Criminal Appeals Section
and Melissa M. Swearingen, Assistant Attorney General
Attorneys for Appellee
Phoenix Jill L. Evans, Mohave County Appellate Defender
Attorney for Appellant
Kingman SWANN, Judge ¶1 Jerry Lee Johnson appeals the revocation of his probation for a conviction of aggravated extreme DUI and the sentence imposed, arguing that the court lacked jurisdiction because his probation had previously expired. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On June 15, 2007, the trial court suspended imposition of sentence on Johnson's conviction for aggravated extreme DUI, ordered him to serve one year in prison as a term of probation, and placed him on probation for a term of four years commencing on the same date as his prison term. The court ordered Johnson to pay thirty percent of his prison earnings toward statutory fines totaling $4,610. The court ordered Johnson upon release from prison to begin payment of a monthly probation-services fee of $50; the outstanding amount of the statutory fines at a rate of $100 per month; and restitution totaling $5,133.25 at a rate of $100 per month. ¶3 Before Johnson's probation term expired, his probation officer filed a petition with the Superior Court in which he alleged that Johnson had failed, neglected, or refused to pay the full amount of restitution ordered and had an outstanding restitution balance exceeding $3,800. The petition asked the court to extend the term of probation for another three years to give Johnson time to pay the total sum ordered. By separate letter, the probation officer informed Johnson of his right to contest the petition by personally appearing and explaining to the court why he did not feel the three-year extension was appropriate. ¶4 Alternatively, the probation officer informed Johnson, "if you feel that the extension is in your best interest, please sign below and return this letter immediately." Johnson signed below the statement, "I do not wish to contest a 3 year extension of my probation." The court subsequently signed an order extending Johnson's term of probation "for three years, to expire on June 15, 2014 or when restitution is paid in full," based on the petition and the document "indicating the defendant does not wish to oppose this extension." In December 2011, Johnson's probation officer filed a petition to revoke Johnson's probation for violating several conditions arising from another arrest for DUI. In February 2012, the probation officer filed a supplemental petition alleging violations arising from consumption of alcohol. ¶5 At a contested probation-violation hearing, Johnson's counsel argued for the first time that the three-year extension of Johnson's probation was invalid, relying on Johnson's testimony that he had been coerced into agreeing to the extension by his probation officer's threat that if he did not agree, he was going to jail. Johnson conceded at the hearing that he was behind in his court-ordered payments and still owed restitution when he signed the agreement. His counsel did not make any argument that the payments he made had been misallocated. ¶6 The court found that Johnson had been adequately informed of his right to oppose the extension and that the threat of jail was omnipresent for someone on probation, "so [it did not] believe the threat of going to jail overcomes the actual writing: I do not wish to contest." The court accordingly found that Johnson had not been coerced into signing the document agreeing to a three-year extension on his probation, and he was on probation at the time of the alleged violations. The court further found that Johnson had violated the conditions of his probation as alleged and sentenced him to two and one-half years in prison with credit for 370 days of presentence incarceration. ¶7 Johnson filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Johnson's probation officer was unavailable at the time of the hearing, and was not called to testify.
Johnson explained that he fell behind because he was unemployed for a long time, and he was paying "another court," as well as for classes he was required to take, and for the interlock device on his vehicle.
DISCUSSION
¶8 Johnson argues that the trial court lacked jurisdiction to revoke his probation "based upon a prior order extending probation for non-payment of restitution, where restitution had been paid in full." He contends that the monies he paid to the Mohave County Superior Court Clerk's Office before June 2011 would have sufficed to satisfy his restitution obligation had they been properly allocated by the clerk to satisfy the restitution obligation first, and his probation would have expired on the original date. Johnson did not raise this argument at the violation hearing, but waited until the disposition hearing. ¶9 This issue of jurisdiction may be raised at any time, and cannot be waived. Chacon, 221 Ariz. 523, 525-26, ¶ 5, 212 P.3d 861, 863-64 (App. 2009). A trial court has jurisdiction to extend the term of a defendant's probation to allow him to complete payment of restitution. A.R.S. § 13-902(C)(1). A trial court lacks jurisdiction to revoke probation once the term of probation has expired. State v. Chacon, 221 Ariz. at 526, ¶ 6, 212 P.3d at 864 (citation omitted). The filing of a petition to extend, however, tolls the running of the term of probation. State v. Cobb, 158 Ariz. 385, 386, 762 P.2d 1339, 1340 (App. 1988). ¶10 We review a trial court's decision to modify the terms of probation for abuse of discretion. See Burton v. Superior Court, 27 Ariz. App. 797, 800, 558 P.2d 992, 995 (1977). We review a claim of lack of jurisdiction de novo. State v. Flores, 218 Ariz. 407, 410, ¶ 6, 188 P.3d 706, 709 (App. 2009). ¶11 Johnson's argument that the court lacked jurisdiction relies on the premise (1) that his probation expired on June 15, 2011 -- notwithstanding his prior written agreement not to contest its extension for three years and the court's order extending it -- and (2) that the clerk's office misallocated his payments. ¶12 The record on appeal does not support Johnson's contention that the payments he made would have satisfied his restitution obligation before the June 15, 2011 expiration of his probation had they been "applied first to satisfy the restitution order . . . [and] any restitution in arrears," under A.R.S. § 13-804(K). See also A.R.S. § 13-809(A) ("If a defendant is sentenced to pay a fine or incarceration costs, payment and enforcement of restitution take priority over payment to the state."). Before the violation hearing, defense counsel moved to compel the probation office to disclose "[a]ll records of payments made by Mr. Johnson" to determine "whether Mr. Johnson indeed violated probation." The court ordered the payment record disclosed. Defense counsel, however, did not submit the payment record as an exhibit at the violation hearing, or argue at that time that the payments were misallocated. ¶13 On appeal, Johnson instead relies on figures from the Mohave County Superior Court Clerk's Office obtained by the probation officer and summarized in two lines in the Violation of Probation Disposition Report that was submitted to the superior court. This summary provides insufficient evidence to support Johnson's claim that the Mohave County Superior Court Clerk's Office misallocated the payments he made. The two-line summary fails to show the payments that Johnson made, the date they were made, or how the clerk's office allocated them. Moreover, the summary identifies the amount of fines and fees ordered by the court as $12,698, nearly three times the $4,610 in fines that the court actually imposed in this case. Because this figure exceeds the fines and fees actually imposed by the court, we cannot determine what relationship, if any, the $5,168 Johnson paid bears to this case, or whether it could and should have been allocated by the clerk's office to payment of restitution. Finally, even if Johnson had timely paid his monthly restitution of $100, he could not have completed payment of the $5,133 owed within the original three-year term of his probation following his release from prison. We therefore conclude that the record does not support Johnson's contention that he would have completed payment of his restitution before the expiration of his probation term had his payments been properly allocated. ¶14 Johnson also contends that "[t]he trial court lacked jurisdiction to revoke probation since the agreement to extend probation was involuntary and therefore probation had expired prior to the filing of the petition to revoke." He argues that before the trial court granted the extension based on his agreement not to contest it, he had a constitutional due process right to representation by counsel and to a Boykin colloquy to determine that he knowingly, intelligently, and voluntarily waived his rights to remain silent, to be represented by counsel, and to a hearing at which he could confront and present witnesses. This contention does not attack the court's jurisdiction -- it seeks to vindicate due process rights. Because Johnson did not make a due process claim below, we review this claim for fundamental error only. See State v. Henderson, 210 Ariz. 561, 568, ¶ 22, 115 P.3d 601, 608 (2005). Johnson bears the burden of establishing that there was error, that the error was fundamental, and that the error caused him prejudice. Henderson, 210 Ariz. at 568, ¶¶ 23, 26, 115 P.3d at 608. We review his due process claim as well as his claim of lack of jurisdiction de novo. State v. Korzuch, 186 Ariz. 190, 192, 920 P.2d 312, 314 (1996); Flores, 218 Ariz. at 410, ¶ 6, 188 P.3d at 709. ¶15 We find no fundamental error. Under the Rules of Criminal Procedure, the right to representation by counsel, and a knowing, intelligent, and voluntary waiver of that right and others, applies only to a probationer's admission to a violation of a term of probation. Ariz. R. Crim. P. 27.9. By its terms, Rule 27.9 does not apply to a probationer's decision not to contest an extension of his probation. See id. ; cf. State v. Guenther, 122 Ariz. 196, 198, 593 P.2d 946, 947 (App. 1979) (holding that Rule 17.2 governing guilty pleas does not apply to admissions by probationer). Rather, Rule 27.3, which requires only notice and an opportunity to be heard before the court modifies a term of probation, applies. See Ariz. R. Crim. P. 27.3 (court may modify terms of probation upon appropriate notice, with hearing, if necessary); cf. A.R.S. § 13-804(L) (before modifying the order pertaining to the manner in which the restitution is paid, defendant must be given notice and an opportunity to be heard). ¶16 Due process does not require the same protections when a probationer decides not to contest an extension of probation as it requires when he admits to a violation of probation. A critical distinction exists between a guilty plea or admission of violation of probation and a decision not to contest an extension of probation: the former may result in incarceration, while the latter simply extends then-existing restrictions on liberty. The United States Supreme Court has held that even in cases of the revocation of probation, due process does not accord a probationer the absolute right to counsel. See Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973) (holding that whether due process requires appointment of counsel in probation-revocation hearings must be decided on a case-by-case basis). Moreover, Johnson has cited no authority for the proposition that a probationer has a due process right to a full Boykin colloquy before the court can accept his decision not to contest an extension of the probationary term, and we have found no such authority. ¶17 Our supreme court has held only that due process requires that a probationer be given notice and an opportunity to be heard before a court extends the term of probation. Korzuch, 186 Ariz. at 193-94, 920 P.2d at 315-16. Johnson received both notice and an opportunity to be heard before the court granted the extension in this case: the probation officer informed Johnson in writing that he had filed a petition to extend Johnson's probation, and that Johnson had a right to appear before the court and contest the extension. Johnson instead signed the form agreeing that he was not contesting the three-year extension.
Boykin v. Alabama, 395 U.S. 238 (1969) (holding that when a defendant enters a plea of guilty in a state criminal trial, the record must affirmatively show that he has knowingly, intelligently, and voluntarily waived his privilege against compulsory self-incrimination, the right to a trial by jury, and the right to confront his accusers).
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CONCLUSION
¶18 For the foregoing reasons, we affirm the revocation of Johnson's probation and the sentence imposed.
________________
Peter B. Swann, Judge
CONCURRING: ________________
Patricia A. Orozco, Presiding Judge
________________
Robert C. Houser, Jr., Judge Pro Tempore*
* The Honorable Robert C. Houser, Jr., Judge Pro Tempore of the Court of Appeals, Division One, is authorized by the Chief Justice of the Arizona Supreme Court to participate in the disposition of this appeal pursuant to the Arizona Constitution, Article 6, Section 3, and A.R.S. §§ 12-145 to -147 (2003).