State v. Hensley

31 P.3d 848, 201 Ariz. 74, 2001 Ariz. App. LEXIS 140
CourtCourt of Appeals of Arizona
DecidedSeptember 20, 2001
Docket1 CA-CR 00-0508
StatusPublished
Cited by18 cases

This text of 31 P.3d 848 (State v. Hensley) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hensley, 31 P.3d 848, 201 Ariz. 74, 2001 Ariz. App. LEXIS 140 (Ark. Ct. App. 2001).

Opinions

OPINION

TIMMER, Presiding Judge.

¶ 1 After Roy David Hensley violated the terms of his probation imposed under “Proposition 200,” Ariz.Rev.Stat. (“A.R.S.”) § 13-901.01 (Supp.2000), the trial court terminated his probation as unsuccessful. The State of Arizona appeals that order, contending that the court erred by failing to revoke Hensley’s probation and impose a prison term in light of his prior convictions for violent crimes, which made him ineligible for probation under A.R.S. § 13-901.0KA).

¶ 2 We must decide whether Hensley was disqualified from mandatory probation under A.R.S. § 13-901.01(A) in light of his earlier violent-crime convictions, even though the State failed to allege and prove them before Hensley’s convictions for possession of dangerous drugs and drug paraphernalia. We hold that Hensley was eligible for probation under A.R.S. § 13-901.01(B) because the State failed to allege and prove the convictions as required by A.R.S. § 13-604.04(A) (Supp.2000). Consequently, the trial court did not err by refusing to revoke Hensley’s probation and impose a prison term. However, the court erred by terminating Hensley’s probation rather than continuing it and imposing additional terms, as required by A.R.S. § 13-901.01(E). We therefore vacate the court’s order terminating probation and remand with instructions to reinstate Hensley’s probation and impose necessary additional conditions.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On July 6, 1999, the State charged Hensley with possession of dangerous drugs, a class four felony, and possession of drug paraphernalia, a class six felony. The State did not allege that Hensley had been convicted of or indicted for a violent crime. Two months later, the State and Hensley entered into a plea agreement in which Hensley agreed to plead no contest to both charges and waive his right to a preliminary hearing. The parties did not agree that Hensley’s convictions would be treated as Proposition 200 offenses. On November 10, 1999, the [76]*76trial court accepted the plea agreement and found Hensley guilty of both charges.

¶4 The pre-sentence report stated that Hensley had been “convicted of two armed robberies in 1987 and was sentenced to ten and a half years prison.” In light of these convictions, the State contended that Hensley was ineligible for mandatory probation under A.R.S. § 13-901.01(A) and therefore recommended a prison term. The court rejected this recommendation and, instead, suspended imposition of sentence and placed Hensley on four years of intensive probation for the first charge and two years of supervised probation for the second charge. The record does not reflect whether the court treated the crimes as Proposition 200 offenses.

¶ 5 On December 23, 1999, the State petitioned the court to revoke Hensley’s probation because he had violated its terms. Hensley admitted the violation, and the court reinstated him on probation. The State filed a second petition to revoke probation on April 19, 2000. At a hearing held on June 21, 2000, Hensley admitted that he had violated the terms of his probation by failing to successfully complete a substance abuse counseling program. Based on this admission, the trial court found that Hensley had violated the terms of his probation. The court then ruled that Hensley’s convictions were for Proposition 200 offenses, and the court could not, therefore, revoke probation and impose a term of imprisonment unless he had been convicted of or indicted for a violent crime. A.R.S. § 13-901.01(B). The court further ruled that the State was required by A.R.S. § 13-604.04(A) to allege and prove any such convictions or indictments prior to Hensley’s convictions in order to disqualify him from mandatory probation under A.R.S. § 13-901.01(A). Based on its review of Hensley’s prior record, the court noted that although he had “arguably” committed prior violent crimes, the State had failed to allege and prove those convictions, before Hensley was convicted of the drug offenses. For this reason, the court declined to revoke Hensley’s probation and impose a prison term.

¶6 The court next proclaimed its only options were to continue Hensley’s probation or terminate it. The court then asked Hensley if he “sincerely want[ed] to utilize probation resources or ... just [be] terminated from probation supervision and left to deal with [his] addiction on [his] own.” After Hensley stated he preferred to be released from probation, the court terminated it. This appeal followed. We review the trial court’s order de novo because the issues involve statutory interpretation and thus present questions of law. Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996).

DISCUSSION

I. Applicability of Proposition 200

¶7 The -State argues that the trial court erred by concluding it could not revoke Hensley’s probation and impose a prison term because the State had failed to allege and prove a historical violent crime conviction prior to Hensley’s convictions. According to the State, A.R.S. § 13-901.01(B)1 allows the court to remove a defendant with a historical violent crime conviction from eligibility for Proposition 200 probation even if the State had failed to allege and prove the conviction.

¶ 8 The State relies on this court’s holding in Bolton v. Superior Court, 190 Ariz. 201, 945 P.2d 1332 (App.1997), to support its contention. In Bolton, the trial court rejected a plea that required probation because former A.R.S. § 13-901.01(F) (1997) excluded defendants from Proposition 200 probation if they had previously been convicted two or more times of any offense listed in that subsection. 190 Ariz. at 202, 945 P.2d at 1333. The defendant argued that the trial court erred because the State had failed to allege such convictions as required by A.R.S. § 13-604(P) (Supp.1996), “which provides for enhanced sentencing if prior convictions are ‘charged in the indictment or information and [77]*77admitted or found by the court----’ ” Id. at 202 03, 945 P.2d at 1333-34 (quoting A.R.S.

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State v. Hensley
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Bluebook (online)
31 P.3d 848, 201 Ariz. 74, 2001 Ariz. App. LEXIS 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hensley-arizctapp-2001.