State v. Wilson

724 P.2d 1271, 150 Ariz. 602, 1986 Ariz. App. LEXIS 557
CourtCourt of Appeals of Arizona
DecidedAugust 28, 1986
Docket1 CA-CR 9421
StatusPublished
Cited by13 cases

This text of 724 P.2d 1271 (State v. Wilson) 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. Wilson, 724 P.2d 1271, 150 Ariz. 602, 1986 Ariz. App. LEXIS 557 (Ark. Ct. App. 1986).

Opinions

HAIRE, Judge.

This is an appeal from the revocation of appellant’s probation and the resulting order requiring the payment of restitution. In September 1983, appellant pled guilty to attempted burglary in the third degree, a class 6 open-end offense. On November 14, 1983 appellant’s sentence was suspended and he was placed on three years supervised probation. The terms and conditions of probation included, among other things, the following:

“2. Report to the probation officer at least once each month in writing and either in person or in writing at all other such times as directed by the probation officer.
* * * * * *
“5. Pay a monthly fee for probation services to the Clerk of the Superior Court of Maricopa County at a rate of $20.00 commencing on 2-15-84, and due on the 15th of each month thereafter during the term of probation.
* * * * * *
“14. Make and pay restitution through the Clerk of the Superior Court of Maricopa County in the total amount of $2,190.00 in regular monthly payments [604]*604of $40.00 each month beginning on 2-15-84 and on the 15th day of each month thereafter until paid in full.
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“16. Pay a reimbursement to the Clerk of the Superior Court of Maricopa County in the amount of $100.00 on or before _, or in regular monthly payments of $10.00 each month beginning on 2/15/84 and on the 15th day of each month thereafter until paid in full.”

In July 1984, appellant’s probation officer filed a petition to revoke probation. The petition alleged that appellant had not reported to his probation officer during June or July 1984 and that appellant had failed to make the required payments. After the petition was filed, a bench warrant was issued for appellant’s arrest. Appellant was at large for more than one year after the filing of the revocation petition, and was arrested pursuant to the bench warrant on August 22, 1985. At the probation revocation proceedings, he admitted violating the terms of probation set forth above. The trial court accepted the admissions, revoked appellant’s probation, and sentenced him to the presumptive term of 1.5 years with credit for 83 days of presentence incarceration. The court also ordered appellant to pay $2,190 in restitution six months after release from incarceration or as ordered by the Board of Pardons and Paroles.

Appellant was represented at all proceedings through sentencing, and is represented on this appeal by appointed counsel. Appointed counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) raising two arguable issues.

Appellant first argues that the court incorrectly found a factual basis for the violations of terms 5, 14 and 16 of appellant’s terms and conditions of probation. As set forth above, these terms and conditions of probation required appellant to pay various sums to the clerk of the Maricopa County Superior Court. In Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), the United States Supreme Court held:

“[I]n revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.” Id. at 672, 673, 103 S.Ct. at 2072, 2073, 76 L.Ed.2d at 233.

At the revocation proceedings, the only inquiry made by the court was whether appellant had paid the required amounts. Appellant admitted that he had not and stated that he had not been able to find employment. The presentence report indicated that appellant’s only defense for not making the payments was that he was unable to find employment, and that the records indicated that appellant was chronically unemployed. Appellant argues that the trial court’s inquiry falls short of the inquiry required by Bearden, and that therefore there was an insufficient factual basis to sustain appellant’s probation revocation for violation of terms 5, 14 and 16.

The state responds that Bearden may be factually distinguishable; that appellant waived his objection to any flaws in the revocation proceedings by not objecting below; and that even if flaws exist in the [605]*605revocation proceedings as to some of the admitted violations, no flaws exist with regard to the appellant’s admitted violation of term number 2 (failure to report) which by itself furnishes a sufficient basis for the revocation of appellant’s probation.

We disagree with the state’s first two contentions. Bearden is not limited to its facts, and the facts here would not make the Bearden inquiry inapplicable. Bearden stands for the proposition that under the Fourteenth Amendment, a sentencing court must inquire into the reasons for a probationer’s failure to pay fines or restitution before sentencing the probationer to a term of imprisonment for the failure to pay. Also, because it would be fundamentally unfair under the Fourteenth Amendment to deprive the probationer of his conditional freedom simply because he could not pay the fine through no fault of his own, it would be fundamental error to fail to make the required inquiry. Therefore, appellant’s failure to object below does not preclude him from raising this issue on appeal. See State v. Stotts, 144 Ariz. 72, 695 P.2d 1110 (1985).

The record shows that the trial court did not make a sufficient inquiry into the reasons for appellant’s failure to pay the fines and restitution. The court did not determine whether the failure to pay was willful or the extent of appellant’s efforts to obtain the resources to pay. If appellant’s failure to pay were the only grounds for revoking his probation we would remand this case for a new disposition hearing in compliance with Bearden. However, appellant has also admitted that he violated term 2 of the terms and conditions of his probation, and no challenge is made to the validity of that admitted violation.

When a defendant is charged with multiple probation violations, a finding on appeal that some of the alleged violations are invalid does not necessarily invalidate the revocation proceeding. State v. Jameson, 112 Ariz. 315, 541 P.2d 912

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State v. Wilson
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Cite This Page — Counsel Stack

Bluebook (online)
724 P.2d 1271, 150 Ariz. 602, 1986 Ariz. App. LEXIS 557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wilson-arizctapp-1986.