Defendant complains, for the first time on appeal, that her admission to the probation violation was involuntary. She argues that her admission was conditioned on a stipulated minimum sentence that she did not receive. The state suggests that the factual circumstances in this case appear to mandate a remand pursuant to State v. Reidhead, 152 Ariz. 231, 731 P.2d 126 (App. 1986). Agreements concerning probation violation are permissible. Reidhead, 152 Ariz. at 234, 731 P.2d at 129.
This court has held that probation violation agreements are permissible under Rule 17.4(a). State v. Reidhead, 152 Ariz. 231, 233, 731 P.2d 126, 128 (1986). However, it is also true that probation violation agreements are not the equivalent of plea agreements under Rule 17, and not all of the Rule 17 requirements for accepting guilty pleas apply to probation revocation agreements.
Arizona courts have consistently recognized that Gagnon and Morrissey protect the defendant's right to due process in the context of probation revocation proceedings. See State v. Flowers, 159 Ariz. 469, 471, 768 P.2d 201, 203 (App. 1989) (holding that "a person alleged to have violated probation is entitled to the minimum due process rights guaranteed by the fourteenth amendment . . . and by the Arizona Constitution"); State v. Reidhead, 152 Ariz. 231, 234, 731 P.2d 126, 129 (App. 1986), overruled on other grounds by State v. Georgeoff, 163 Ariz. 434, 437, 788 P.2d 1185, 1188 (1990) (same); State v. Gray, 115 Ariz. 150, 152, 564 P.2d 101, 103 (1977) (holding that, although Morrissey requires a revocation hearing within a reasonable time after the probationer is taken into custody, delay was not unwarranted where it was the result of logistical difficulties between courts in different counties and defendant had shown no prejudice). This court has previously expressed "disapproval of the practice of deferring the hearing on probation revocation until after the adjudication of guilt or innocence on the new criminal charge.
opped, but not told that charges could and likely would be reinstated later); see also State v. Ross, 166 Ariz. 579, 583-84, 804 P.2d 112, 116-17 (1990) (fundamental fairness precludes prosecution from violating terms of plea agreement); State v. Maloney, 102 Ariz. 495, 499, 433 P.2d 625, 629 (1967) (due process prohibits use in subsequent criminal proceeding of inculpatory statements made by child while under jurisdiction of juvenile court unless child and parents informed of right to counsel, privilege against self-incrimination, and of possibility of remand for trial as an adult, given "rehabilitative program of the juvenile court"); State v. Flowers, 159 Ariz. 469, 472, 768 P.2d 201, 204 (Ct.App. 1989) ("fundamentally unfair to deny defendant the opportunity to withdraw from the probation violation agreement where, as here, the trial court's refusal to honor the bargain defendant made with the prosecutor renders invalid the consideration for her admission" of probation violation); State v. Reidhead, 152 Ariz. 231, 234, 731 P.2d 126, 129 (Ct.App. 1986) ("An essential component of [fundamental] fairness is that, where a defendant and the state enter into a particular agreement, the state must comply with its promises."). The state argues that in People v. Velasquez, 192 Cal.App.3d 319, 237 Cal.Rptr. 366 (1987), the California Court of Appeal declined to extend Crisan to create a privilege for communications between "jailhouse lawyers" and their "inmate clients."
They shall be construed to secure simplicity in procedure, fairness in administration, the elimination of unnecessary delay and expense, and to protect the fundamental rights of the individual while preserving the public welfare. Ariz.R.Crim.P. 1.2, 17 A.R.S.; see also State v. Reidhead, 152 Ariz. 231, 233, 731 P.2d 126, 128 (App. 1986), overruled on other grounds by State v. Georgeoff, 163 Ariz. 434, 437, 788 P.2d 1185, 1188 (1990). Aside from following this general policy statement, we also subject court rules to the principles of statutory construction.
See, e.g., State v. Rutherford, 107 Idaho 910, 693 P.2d 1112 (Ct.App. 1985) (relying on Santobello in concluding that breach of plea agreement by state affects voluntariness of guilty plea and is fundamental error); People v. Mancheno, 32 Cal.3d 855, 860, 187 Cal.Rptr. 441, 444, 654 P.2d 211, 214 (1982) (relying on Santobello in concluding that violation of plea bargain by state raises a constitutional right to a remedy). The court of appeals also relied on its earlier case of State v. Reidhead, 152 Ariz. 231, 234, 731 P.2d 126, 129 (App. 1986). In Reidhead, a probation officer made a recommendation at variance with one agreed to as part of defendant's admission to a probation violation.
The defendant therefore need not show actual prejudice. It is an essential component of fundamental fairness that, when a defendant and the state enter into a particular agreement, the state must comply with its promises. State v. Flowers, 159 Ariz. 469, 471, 768 P.2d 201, 203 (App. 1989); State v. Reidhead, 152 Ariz. 231, 731 P.2d 126 (App. 1986) (citing Santobello, supra); Gayman, 127 Ariz. at 602, 623 P.2d at 32. A breach by the state of an agreement to make no recommendation on sentencing therefore constitutes reversible error.
Where the defendant has been denied an essential component of due process, there is no question that such denial constitutes fundamental error. State v. Reidhead, 152 Ariz. 231, 234, 731 P.2d 126, 129 (App. 1986). Accordingly, we hold the failure to object to the state's breach of a plea agreement does not waive the issue.
By this language, the state and the defendant may bargain both as to the plea of guilty and as to the sentence to be imposed. This language is broad, see State v. Reidhead, 152 Ariz. 231, 233, 731 P.2d 126, 128 (App. 1986), and permits the parties to agree to the terms and conditions of probation. The broad language of rule 17.4(a) is not without limitation.
Coleman entered into a plea agreement whereby he admitted violating the conditions of probation by leaving the state without prior approval of his probation officer. State v. Reidhead, 152 Ariz. 231, 731 P.2d 126 (App. 1986). In exchange, the remaining alleged technical violations (failure to pay fine and assessment fees) were dismissed.