State v. Adler

931 P.2d 1082, 187 Ariz. 572, 218 Ariz. Adv. Rep. 15, 1996 Ariz. App. LEXIS 121

• Court: Court of Appeals of Arizona
• Decided: June 13, 1996
• Docket: No. 1 CA-CR 95-0166
• Status: Published

Opinions

OPINION

NOYES, Judge.

In July 1988 the State filed a petition to revoke the probation of Seymour Harold Adler (“Appellant”), a fugitive. Appellant was taken into federal custody in May 1990 and was stdl in federal custody in January 1995, when his probation was revoked in this case. The issue on appeal is whether the delay in revoking Appedant’s probation was so unreasonable and prejudicial that it violated his constitutional right to due process of law. The trial court found no such violation, and we affirm.

I

Appellant headed a precious-metals investment swindle that defrauded Arizona victims of over $450,000. After pleading guilty to seven felonies and agreeing to make full restitution, Appellant was released on probation in August 1987. As a condition of probation, Appellant was ordered to pay $100,000 in restitution by August 5,1988, or serve a year in the Maricopa County jail.

Arizona probation authorities gave Appellant permission to live in California, expecting that he would be supervised there. But California probation authorities refused to accept supervision of Appellant, and failed to communicate that fact to Arizona. Appellant disappeared. By March 1988 Arizona probation authorities knew that Appellant was gone; mail to his known addresses was returned to sender, his known phone numbers were disconnected (or were answering services that had never heard of him), and his sister had no idea where he was. By May 1988 the FBI was looking for Appellant regarding a pending federal indictment. In July 1988 Arizona probation officers filed a petition to revoke Appellant’s probation. Almost two years later, in May 1990, Appellant was arrested in Seattle on federal charges for crimes similar to those for which he was on probation in Arizona.

In August 1990 Appellant pleaded guilty to several charges in the federal case, and in November 1990 he received sentences which amounted to eight years in prison and a release date in July 1995. The federal convictions exposed more of Appellant’s fraudulent conduct than was known when he received probation in Arizona, as explained in his Arizona post-revocation presentence report:

When the defendant was granted probation under this cause, the frill extent of his criminal activities were unknown to the Court. In fact, at the time the presentence investigation was completed, the defendant stated in writing, “I don’t consider myself a criminal, but a person who made bad business decisions.” Unknown to the Court then is the now proven facts, based on the defendant’s federal convictions, that he, along with Reginald Dents, actually had numerous fraudulent business arrangements going on around the United States for more than three years; with the conviction in this cause being just a small piece of an otherwise large picture of fraud, scams, and illegal activities.

On December 16, 1991, Appellant filed a motion for a speedy trial or a final disposition in absentia on the petition to revoke his probation. In this motion, Appellant waived his right to be present at sentencing, but. only if he was reinstated on probation. The record contains no ruling on the motion. By letter dated December 20, 1991, the State notified Appellant that an Arizona detainer had been lodged against him for the probation violation. The letter stated that Arizona could not get custody of Appellant under the Interstate Agreement on Detainers (“IAD”) because the act does not apply to detainers based on probation violations; therefore, Arizona could not resolve the probation violation matter until after Appellant completed his federal prison sentence. The letter concluded by stating that Arizona would consider Appellant for the Probation Reconciliation Program, and that he would be notified if he were eligible. Shortly thereafter, Appellant was evaluated for this program. On February 24, 1992, Appellant was declared ineligible for the program because he had failed to pay restitution and to serve a previously-ordered one-year jail term.

In October 1994, following a series of communications between Appellant’s counsel and the Maricopa County Attorney’s Office, Appellant filed a motion to dismiss the petition to revoke. At the December 1994 hearing on the motion, Appellant appeared telephonically and was represented by counsel. The trial court denied the motion and set a violation hearing at which Appellant appeared by telephone and his counsel appeared personally.

After the hearing, the court issued a minute entry dated January 6, 1995, finding that Appellant had wilfully violated orders to pay restitution and fees; to report monthly, in writing, to Arizona probation officials; to get approval prior to moving; to advise probation officials of changes of address or employment; and to cooperate with the Interstate Compact Program. The trial court revoked Appellant’s probation and sentenced him to presumptive prison terms of four years on each count, concurrent with each other and consecutive to the federal sentences. Appellant was also ordered to pay restitution as set forth in a civil judgment.

We have jurisdiction of the appeal pursuant to Arizona Constitution article 6, section 9, and Arizona Revised Statutes Annotated (“A.R.S.”) sections 12-120.21(A)(1) (1992), 13-4031 (1989), and 13-4033(A) (Supp.1995).

II

To warrant dismissal of a petition to revoke probation because of delay in holding a hearing, the probationer “must demonstrate prejudice which resulted from the delay.” Padilla v. Superior Court, 133 Ariz. 488, 490, 652 P.2d 561, 563 (App.1982). Appellant made no showing of prejudice. He offered only an affidavit claiming that he had phone contacts with the Arizona probation office in 1987, and that he could have produced those records if the hearing had been in 1991. But those 1987 records are immaterial; the petition to revoke alleged that Appellant failed to report to the probation office after March 1988. The affidavit also claims, “I was not made aware that I was to pay a $30.00 monthly probation service fee.” But this fee is in the written terms of probation given to and signed by Appellant, and the trial court explained it to him at sentencing.

Appellant offered no defense to becoming a fugitive, and he made no showing that he was prejudiced by the delay in having a hearing on the petition which alleged, in various ways, that he violated probation by becoming a fugitive. Appellant did not argue that the delay prejudiced his opportunity to be reinstated on probation, or to have his state sentences run concurrently with his federal sentences. No prejudice having resulted from the delay, the trial court did not abuse its discretion in denying Appellant’s motion to dismiss the petition.

The State gave the trial court several uncontradicted reasons to explain the delay between Appellant’s federal arrest in May 1990 and his revocation hearing in January 1995: (1) The IAD is not applicable to probation revocation proceedings. Carchman v. Nash, 473 U.S. 716, 725, 105 S.Ct. 3401, 3406, 87 L.Ed.2d 516 (1985). (2) Arizona has no executive agreement by which it can obtain a federal prisoner. (3) The State did not use a writ of habeas corpus ad prosequendum because federal authorities frequently do not honor a state writ. (4) Appellant’s counsel tried to produce Appellant with a writ and met with no success. (5) The State tried to resolve the matter by enrolling Appellant in the Probation Reconciliation Program, but Appellant was rejected because he had not served his jail term or paid his restitution. (6) Counsel for the State and counsel for Appellant had exchanged correspondence to try to resolve the matter, and these efforts continued up through the hearing on the motion to dismiss.

Appellant has arguable support in State v. Flemming, 184 Ariz. 110, 907 P.2d 496 (1995), which dismissed a petition to revoke probation because of the delay in bringing it to a hearing. We find Flemming distinguishable for several reasons:

(1) Flemming was an Arizona state prisoner and at all times within the jurisdiction of the state court. Id. at 112, 907 P.2d at 498. Appellant was a federal prisoner and at all times outside the jurisdiction of the state court.

(2) Flemming was imprisoned inside the state of Arizona. Id. Appellant was imprisoned outside the state of Arizona for some period of time, and the record is not clear when he was moved to an in-state federal facility.

(3) The delay in Flemming was “not only unexplained, it [was] inexplicable.” Id. at 117, 907 P.2d at 503. In Appellant’s case the delay was explained, and the trial court was persuaded.

(4) Flemming’s probation officer agreed to recommend that the sentence in the revocation case run concurrently with the new sentences, but the delay prejudiced his opportunity to receive concurrent sentences. Id. at 112,116, 907 P.2d at 498, 502. Appellant had no such agreement, and no reasonable prospect of receiving concurrent sentences from an Arizona court that was aware of his probation violations and his federal convictions.

(5) In Flemming, the court “set aside the finding of violation and the sentence that flowed from that finding” for reasons unrelated to the delay. Id. at 115, 907 P.2d at 501. The Flemming court, therefore, had to either remand for rehearing — thus creating more delay — or dismiss the petition. We have no such complication here because there was no defect in the revocation itself. If we affirm the trial court’s denial of the motion to dismiss, we also affirm the revocation of probation and the resulting sentences.

(6) By the time the supreme court reversed in Flemming, defendant’s probation had expired “more than three years ago.” Id. at 116, 907 P.2d at 502. Appellant’s probation was revoked long before it expired; he became a fugitive shortly after being placed on probation, and a fugitive is not serving his probation. “The running of the period of probation shall cease during the unauthorized absence of the defendant from the jurisdiction____” A.R.S. § 13-903(C) (1989). Also, Appellant’s probation could have been extended up to three years because he had not paid all his restitution. A.R.S. § 13-902(0(1) (Supp.1995).

The dissent fairly criticizes the State for not trying to obtain Appellant with a writ of habeas corpus ad prosequendum. We agree with the dissent that the State’s “reliance on the mere possibility that the writ would not be honored does not excuse its failure to request that the writ be honored.” (Op. at 577, 931 P.2d at 1087.) But even if this one failure undermines the trial court’s overall acceptance of the State’s explanation for the delay, the fact still remains that Appellant showed no prejudice from the delay. Appellant made only frivolous arguments that the delay prejudiced his ability to defend against the petition to revoke.

The dissent would find the delay per se prejudicial, (op. at 578, 931 P.2d at 1088), but we think that such a holding would be an overreaction to the complicated facts and circumstances behind the delay here. The dissent argues that the State could have brought the petition to a hearing in absentia, and we agree. But Appellant could not have been sentenced in absentia absent his agreement. See State v. Bly, 120 Ariz. 410, 413, 586 P.2d 971, 974 (1978). The record contains no indication that Appellant unconditionally agreed to in absentia (or telephonic) sentencing before his motion to dismiss was denied.

In the final analysis, we hold that the trial court did not abuse its discretion in concluding that the State sufficiently explained the delay, that Appellant failed to prove any prejudice from the delay, and that there was no constitutional basis for dismissing the petition to revoke. The judgment of the trial court is therefore affirmed.

EHRLICH, J., concurs.