Neko Anthony Wilson v. Hon. higgins/state ( 2021 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
NEKO ANTHONY WILSON,
Petitioner,
v.
HON. ROBERT HIGGINS, JUDGE OF THE SUPERIOR COURT OF THE STATE OF
ARIZONA, IN AND FOR THE COUNTY OF NAVAJO,
Respondent Judge,
STATE OF ARIZONA EX REL. BRAD CARLYON, NAVAJO COUNTY ATTORNEY,
Real Party in Interest.
No. CR-20-0254-PR
July 23, 2021
Special Action from the Superior Court in Navajo County
The Honorable Robert J. Higgins, Judge
No. S0900CR20050518
VACATED AND REMANDED
Opinion of the Court of Appeals, Division One
249 Ariz. 344 (2020)
VACATED
COUNSEL:
Brad Carlyon, Navajo County Attorney, Michael R. Shumway (argued),
Joel H. Ruechel, Deputy County Attorneys, Holbrook, Attorneys for State
of Arizona
Lee Phillips (argued), Law Office of Lee Phillips, P.C., Flagstaff, Attorney
for Neko Anthony Wilson
Rhonda Elaine Neff, Kimerer Law Group, P.C., Phoenix; and Lise R. Witt,
LisaLaw, LLC, Mesa, Attorneys for Amicus Curiae Arizona Attorneys for
Criminal Justice
NEKO ANTHONY WILSON V. HON. HIGGINS/STATE
Opinion of the Court
Elizabeth Burton Ortiz, Executive Director, Arizona Prosecuting Attorneys’
Advisory Council, Phoenix, Attorney for Amicus Curiae Arizona
Prosecuting Attorneys’ Advisory Council
JUSTICE MONTGOMERY authored the opinion of the Court, in which
CHIEF JUSTICE BRUTINEL and JUSTICES LOPEZ and BEENE joined.
VICE CHIEF JUSTICE TIMMER, joined by JUSTICE BOLICK, issued a
dissenting opinion. ∗
JUSTICE MONTGOMERY, opinion of the Court:
¶1 Arizona Rule of Criminal Procedure 27.7(c) directs trial courts
to “make a release determination” when a probationer is arrested on a
warrant pursuant to a petition to revoke probation. In this case, we
consider whether Arizona Rule of Criminal Procedure 7.2(c), which
addresses a defendant’s right to release after a conviction but before
sentencing, is applicable to the required release determination. For the
following reasons, we hold that Rule 7.2(c) applies.
I.
¶2 In 2006, Neko Anthony Wilson was convicted of
transportation of marijuana for sale, a class three felony. The trial court
suspended imposition of sentence and placed him on probation for four
years. California assumed supervision of Wilson pursuant to the
Interstate Compact for Adult Offender Supervision. Wilson absconded
from supervision and was arrested and charged in California for felony
murder and robbery in 2009. Arizona filed a petition to revoke probation
based on these new charges and for Wilson’s failure to comply with his
terms of probation. The petition went unresolved, though, while Wilson
awaited resolution of his case in California.
¶3 Circumstances changed in 2018 when a California court
dismissed Wilson’s felony murder counts. He then pleaded guilty to two
∗ Although Justice Andrew W. Gould (ret.) participated in the oral
argument in this case, he retired before issuance of this opinion and did not
take part in its drafting.
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NEKO ANTHONY WILSON V. HON. HIGGINS/STATE
Opinion of the Court
counts of armed robbery and was released in October with sentencing
scheduled for May 2019. Following his release, Wilson was arrested on a
warrant issued pursuant to the petition to revoke probation and brought
before the trial court in Arizona, which released him to return to California
and attend his scheduled sentencing.
¶4 The California court sentenced Wilson to time served and
granted him parole. Wilson then returned to Arizona in July 2019 for his
probation revocation arraignment and denied all the allegations in the
petition to revoke. The State requested that Wilson be held in custody
without bail pursuant to Rule 7.2(c) pending the disposition of the petition.
Following arguments from both sides, the court ordered that Wilson be
“held without bail pursuant to Rule 7.2(c),” and remanded him into custody
without any specific findings.
¶5 Extensive litigation over Wilson’s detention ensued. 1
Relevant here, Wilson petitioned the court of appeals for special action
review, contesting the trial court’s order holding him in custody without
bail under Rule 7.2(c) and arguing that the rule did not apply to a release
determination under Rule 27.7(c). The court of appeals accepted
jurisdiction and granted relief, concluding that “Rule 7.2(c) ha[d] no
application to the superior court’s determination of release conditions” for
probationers in a revocation proceeding. Wilson v. Higgins, 249 Ariz. 344,
348 ¶ 17 (App. 2020), vacated, No. CR-20-0254-PR, 2020 WL 9174968 (Ariz.
Oct. 15, 2020).
¶6 We accepted review to address the applicability of Rule 7.2(c)
to release determinations required by Rule 27.7(c), an issue of first
impression and statewide concern. After oral argument, we issued a
decision order vacating the court of appeals’ opinion and the trial court’s
order, remanded the case with directions for the trial court to conduct a
1On August 19, 2020, this Court denied Wilson’s special action petition
addressing a due process challenge in Wilson v. Hon. Higgins/State, CR
20-0029-PR, and sua sponte ordered the expedited processing of this
appeal.
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NEKO ANTHONY WILSON V. HON. HIGGINS/STATE
Opinion of the Court
release hearing in compliance with Rule 7.2(c)(1)(A), and stated a written
opinion would follow. This opinion sets forth our reasoning.
II.
¶7 “We review the interpretation of court rules de novo and
apply principles of statutory construction when doing so.” State v. Vargas,
249 Ariz. 186, 189 ¶ 9 (2020) (quoting State v. Winegardner, 243 Ariz. 482, 484
¶ 5 (2018)).
A.
¶8 We begin by addressing the court of appeals’ conclusion that
Rule 7.2(c) was inapplicable to the circumstances present in this case, as
well as the import of Rule 27.7(c) no longer referencing Rule 7.2(c).
¶9 The court of appeals based its conclusion on its assessment of
the history of the amendment of Rule 27.7(c). Wilson, 249 Ariz. at 348 ¶¶ 14–
17. Before 2018, the rule explicitly directed courts to make a release
determination under Rule 7.2(c). Ariz. R. Crim. P. 27.7 (2017). With the aim
of “restyl[ing], simplify[ing], and clarify[ing]” Arizona’s Rules of Criminal
Procedure, the task force created by Supreme Court Administrative Order
No. 2015–123 (Dec. 16, 2015) deleted the reference to Rule 7.2(c). 2 The court
of appeals inferred that the deletion “was done purposefully, to make clear
that the omitted phrase no longer has any effect.” Wilson, 249 Ariz. at 348
¶ 14.
¶10 In support of the court of appeals’ assessment of the import
of the deleted reference, Wilson quotes the task force’s response to a
comment requesting reinstatement of the cross-reference to Rule 7.2(c):
The problem is that Rule 7.2 does not provide any procedures
for the conditions of release following an arrest on a probation
violation, which is the general subject of Rule 27.7(c). The
Task Force concluded that developing such procedures
would entail a substantive change to the rule, and that merely
cross-referencing Rule 7.2 would not serve any purpose.
2This Court later adopted the proposed amendment, effective January 1,
2018, pursuant to Arizona Supreme Court Order R–17–0002 (Aug. 31, 2017).
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NEKO ANTHONY WILSON V. HON. HIGGINS/STATE
Opinion of the Court
Consequently, the Task Force decided against reinstating the
cross-reference to Rule 7.2 in Rule 27.7(c).
R–17–0002, Supplemental Petition, at 26–27 (Apr. 25, 2017). There are two
issues with this response and Wilson’s reliance on it.
¶11 First, the task force’s claim that “Rule 7.2 does not provide any
procedures” for a probationer like Wilson makes too much of Rule 7.2’s lack
of any specific reference to probation and overemphasizes the probation
context of Rule 27.7(c). Regardless of the probation context, Rule 27.7(c)
directs courts to “make a release determination.” (Emphasis added). As
Wilson acknowledges in his supplemental brief, in the absence of specific
release guidance in Rule 27.7(c) a court should look to Rule 7.2, addressing
the right to release, to make the required determination. This makes sense
because, as with statutes, “[w]hen ‘[rules] relate to the same subject or have
the same general purpose . . . they should be read in connection with, or
should be construed together with other related [rules], as though they
constituted one law.’” State ex rel. DES v. Pandola, 243 Ariz. 418, 419 ¶ 6
(2018) (quoting State ex rel. Larson v. Farley, 106 Ariz. 119, 122 (1970));
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 252–55 (2012) (addressing the related-statutes canon and the need to
read statutes relating to the same subject together). Given that each rule
addresses the subject of release, and that the purpose of each rule is to
determine release, Rules 27.7(c) and 7.2(c) can and should be read together.
¶12 Second, the amendment for Rule 27.7(c) has never been
characterized as anything other than a stylistic change. R–17–0002, Petition,
app. B, at 43–44 (Jan. 8, 2017) (stating that proposed revisions to Rule 27.7
were intended to be “stylistic” with the exception of proposed revisions to
subsections (a) and (b)); R–17–0002, Supplemental Petition, app. B, at 51
(Apr. 25, 2017) (same); and, R–17–0002, Reply Petition, app. B, at 52–53 (July
7, 2017) (same). Additionally, this deletion of the cross-reference conforms
to the task force’s operating principle that “the criminal rules should be
freestanding and generally should not incorporate by reference other rules
of procedure.” R–17–0002, Petition, at 4 (Jan. 8, 2017). Absent any
substantive change, Rule 7.2(c) has the same application to Rule 27.7(c) now
as it did before the 2018 amendment.
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NEKO ANTHONY WILSON V. HON. HIGGINS/STATE
Opinion of the Court
¶13 Because Rules 7.2 and 27.7(c) can and should be read together
and the deletion of the cross-reference to Rule 7.2(c) was only a stylistic
change, we decline to give the amendment to Rule 27.7(c) any substantive
meaning that would render Rule 7.2(c) inapplicable.
B.
¶14 In their arguments before this Court, the parties differed over
which subsection of Rule 7.2 applies to Wilson. The State asserted it must
be Rule 7.2(c)(1)(A) while Wilson argued Rule 7.2(a) applies. Rule 7.2(a)
provides in pertinent part:
Before Conviction; Bailable Offenses.
(1) Presumption of Innocence. A defendant charged with a crime
but not yet convicted is presumed to be innocent.
(2) Right to Release. Except as these rules otherwise provide,
any defendant charged with an offense bailable as a matter of
right must be released pending and during trial on the
defendant's own recognizance with only the mandatory
conditions of release required under Rule 7.3(a) . . . .
....
Rule 7.2(a) clearly addresses release “before [a] conviction” for defendants
who are “charged with an offense . . . pending and during trial.” (Emphasis
added). When Wilson appeared before the trial court for probation
revocation proceedings, he was not facing new criminal charges, nor was a
trial pending. See infra ¶¶ 17–18. Instead, he was before the court pursuant
to a petition to revoke probation filed after the conviction in 2006 for which
his sentence was suspended. Therefore, Rule 7.2(a) does not apply to
Wilson. 3
3Because Arizona Rule of Criminal Procedure 7.2(b) likewise applies to
defendants before a conviction, we do not address its potential for
application to Wilson in our analysis.
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NEKO ANTHONY WILSON V. HON. HIGGINS/STATE
Opinion of the Court
¶15 The relevant portion of Rule 7.2(c) states:
After Conviction.
(1) Superior Court.
(A) Before Sentencing. After a defendant is convicted of
an offense for which the defendant will, in all reasonable
probability, receive a sentence of imprisonment, the court
may not release the defendant on bail or on the
defendant’s own recognizance unless:
(i) the court finds that reasonable grounds exist
to believe that the conviction may be set aside on a
motion for new trial, judgment of acquittal, or other
post-trial motion . . . .
....
Rule 7.2(c)(1)(A) applies “[a]fter a defendant is convicted of an offense” but
“[b]efore” he is sentenced. (Emphasis added). Again, Wilson’s appearance
before the trial court for probation revocation proceedings occurred after
his conviction in 2006. And, given that the trial court suspended imposition
of sentence following his conviction, he had yet to be sentenced at the time
of his revocation proceeding. As we stated in State v. Muldoon:
A sentence is a judicial order requiring a defendant convicted
in a criminal case to presently suffer a specified sanction such
as incarceration, monetary fine, or both. Probation is a
judicial order allowing a criminal defendant a period of time
in which to perform certain conditions and thereby avoid
imposition of a sentence.
159 Ariz. 295, 298 (1988).
¶16 As our dissenting colleagues point out below, there are
circumstances where our procedural rules and cases applying them will
treat probation as a sentence. Infra ¶ 30. And, as State v. Watson notes, we
have treated probation as a sentence “when the failure to do so would
produce inconsistent and illogical results.” 248 Ariz. 208, 216–217 ¶¶ 25–28
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NEKO ANTHONY WILSON V. HON. HIGGINS/STATE
Opinion of the Court
(App. 2020) (listing examples). However, the rules directly referenced or at
issue in the cases cited in the dissent are not present in these proceedings
nor does treating probation differently than a sentence in this case for
purposes of Rule 7.2(c) produce an inconsistent or illogical result.4 Thus,
we hold that Rule 7.2(c)(1)(A) directly applies to Wilson.
C.
¶17 Wilson nonetheless contends that Rule 7.2(c) is inapplicable
to him for two reasons, which mirror points raised by the court of appeals
in its opinion. Wilson 249 Ariz. at 348 ¶¶ 15–16. First, Wilson insists that a
defendant detained following a conviction and a probationer detained
pending revocation proceedings are distinguishable for purposes of Rule
7.2(c) because the former has been “convicted of an offense that ha[d]
resulted in his or her detention,” whereas a probationer has not been
“convicted” of a probation violation, only “charged.” Id. ¶ 15.
¶18 This distinction mischaracterizes the nature of a probation
revocation proceeding. Either the state or a probation officer may initiate
probation revocation proceedings by filing a petition based on reasonable
cause that a violation has occurred. Ariz. R. Crim. P. 27.6. Following an
arraignment, the court must set a violation hearing. Ariz. R. Crim. P.
27.8(a). If the court finds by a preponderance of the evidence that a
violation occurred, it then sets a disposition hearing. Ariz. R. Crim. P.
27.8(b). At the disposition hearing the court may revoke, modify, or
continue probation. Ariz. R. Crim. P. 27.8(c). If the court revokes probation,
it then imposes a sentence. Id.
¶19 An allegation of a probation violation is thus not a new
criminal charge leading to a trial where a probationer faces possible
conviction of a probation violation. Additionally, the proffered distinction
overlooks the fact that a probationer and the defendant are in the same
position for purposes of determining release under Rule 7.2(c)—each
4 We nonetheless agree with our dissenting colleagues’ observation that a
rule change to specifically address release decisions in Rule 27, Probation
and Probation Revocation, would best serve future parties and trial courts.
Infra ¶ 32.
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NEKO ANTHONY WILSON V. HON. HIGGINS/STATE
Opinion of the Court
appears before the trial court after a conviction and each has yet to be
sentenced. State v. Holguin, 177 Ariz. 589, 592 (App. 1993) (“Because to
order probation is to suspend the imposition of sentence, a defendant
whose probation has been revoked is essentially in the position of never
having been sentenced.”); see generally United States v. Loya, 23 F.3d 1529,
1530 (9th Cir. 1994) (discussing that, under federal law, a probationer
awaiting a revocation hearing may be held to the same standards as a
convicted defendant awaiting sentencing).
¶20 Second, Wilson maintains that it is “illogical” to apply Rule
7.2(c) to a probationer because 7.2(c)(1)(A)(i), which permits pre-sentence
release for a defendant whose conviction will likely be set aside by a post-
trial motion, “simply has no application” as the time for such motions “will
typically have expired” when a revocation proceeding commences. Wilson,
249 Ariz. at 348 ¶ 16. Wilson went even further at oral argument, adding
that the chance of release under Rule 7.2(c) was “illusory.”
¶21 But the inability to challenge an underlying conviction by way
of a post-trial motion does not render Rule 7.2(c) wholly inapplicable to a
probationer. Instead, it simply narrows the grounds on which a trial court
may grant release. The court still must consider whether in all reasonable
probability it will impose a sentence of imprisonment if it finds a violation
of probation. Ariz. R. Crim. P. 7.2(c)(1)(A). And the court has discretion
after finding a violation of probation to reinstate a defendant’s probation.
Rule 27.8(c)(2); A.R.S. § 13-901(C). When a court determines that it will
exercise such discretion, Rule 7.2(c)(1)(A) permits release. Thus, Rule 7.2(c)
authorizes exactly what Wilson said was illusory.
D.
¶22 Wilson nonetheless argues that applying Rule 7.2(c) in this
instance conflicts with our state and federal constitutions. He initially cited
Arizona’s constitutional guarantee that, with certain exceptions, “all
persons charged with crime shall be bailable by sufficient sureties.” Ariz.
Const. art. 2, § 22(A) (emphasis added); A.R.S. § 13-3961(B). But, as
discussed, supra ¶¶ 17–18, an allegation of a probation violation is not the
equivalent of a criminal charge.
¶23 Likewise, Wilson’s reliance on the Eighth and Fourteenth
Amendments to the United States Constitution and article 2, section 15 of
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NEKO ANTHONY WILSON V. HON. HIGGINS/STATE
Opinion of the Court
the Arizona Constitution for the application of the due process protection
of “the right to liberty from unwarranted pretrial detention” to
probationers once again overlooks the differences between a criminal
prosecution and a probation revocation proceeding. See Gagnon v. Scarpelli,
411 U.S. 778, 788–89 (1973) (“[T]here are critical differences between
criminal trials and probation . . . revocation hearings” with respect to due
process protections.). A probationer awaiting a violation or disposition
hearing is not in “pretrial detention.” Supra ¶ 15. Furthermore, “the Eighth
Amendment does not guarantee a right to bail pending revocation of
probation.” In re Whitney, 421 F.2d 337, 338 (1st Cir. 1970) (discussing the
nature of bail and distinguishing defendants only charged with a crime
from a probationer who has previously been convicted of a crime).
¶24 Finally, unlike an accused awaiting trial, a probationer who
has been convicted and placed on probation has undergone a
“transformative change[]” due to the “severe and fundamental disruption
in the relationship between [them] and society.” See United States v. Scott,
450 F.3d 863, 873 (9th Cir. 2006) (quoting United States v. Kincade, 379 F.3d
813, 834–35 (9th Cir. 2004)). While undergoing rehabilitation, probationers
simply do not possess the “absolute liberty” of those not convicted of a
felony. State v. Alfaro, 127 Ariz. 578, 579 (1980); United States v. Knights, 534
U.S. 112, 119 (2001) (“Inherent in the very nature of probation is that
probationers do not enjoy the absolute liberty to which every citizen is
entitled.” (quoting Griffin v. Wisconsin, 483 U.S. 868, 874 (1987))). Rather,
probationers possess “reduced liberty interests.” State v. Korzuch, 186 Ariz.
190, 193 (1996); Alfaro, 127 Ariz. at 579 (noting that probationers possess
“conditional liberty properly dependent on the observance of special
(probation) restrictions”).
¶25 As a result, a probationer’s liberty may be restricted “to a
greater degree than would be [otherwise] permissible.” State v. Kessler, 199
Ariz. 83, 88 ¶ 20 (App. 2000); accord Knights, 534 U.S. at 119 (“Just as other
punishments for criminal convictions curtail an offender’s freedoms, a
court granting probation may impose reasonable conditions that deprive
the offender of some freedoms enjoyed by law-abiding citizens.”). In sum,
nothing in our federal or state constitutions prohibits the application of
Rule 7.2(c)(1)(A) to probationers like Wilson where a release determination
may result in detention pending probation revocation proceedings.
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NEKO ANTHONY WILSON V. HON. HIGGINS/STATE
Opinion of the Court
III.
¶26 For the reasons stated above, Rule 7.2(c)(1)(A) applies to
determining release conditions for a probationer pending a revocation
proceeding under Rule 27.7(c). The order of the trial court and opinion of
the court of appeals are vacated and the matter remanded to the trial court
for further proceedings as warranted.
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NEKO ANTHONY WILSON V. HON. HIGGINS/STATE
VICE CHIEF JUSTICE TIMMER, dissenting.
TIMMER, VCJ., joined by BOLICK, J., dissenting.
¶27 Is probation a sentence? This is an easy question with an
often-unclear answer, which depends on the context of the term’s usage.
The jagged line between sentencing and probation has understandably
generated confusion among courts and litigants. This case is the latest
example.
¶28 Rule 7.2(c)(1)(A) governs release decisions made after
conviction and “before sentencing.” When a trial court orders probation, it
simultaneously suspends imposition of sentence, thereby permitting the
court to retain jurisdiction over the probationer’s punishment until he
completes the probationary term or probation is revoked and a sentence is
imposed. See State v. Muldoon, 159 Ariz. 295, 298 (1988); State v. Holguin, 177
Ariz. 589, 591–92 (App. 1993). Nevertheless, probation is considered a
“sentence” under Rule 7.2(c)(1)(A). Because probation revocation
proceedings do not occur “before sentencing,” the majority incorrectly
concludes that Rule 7.2(c)(1)(A) governed the release decision here.
Therefore, we respectfully dissent.
¶29 Our criminal procedure rules define “sentence” as “the
court’s pronouncement of the penalty imposed on the defendant after a
judgment of guilty.” Ariz. R. Crim. P. 26.1(c). When the Court originally
adopted this definition, it included a comment explaining that “[t]he term
sentence as used in this rule does include probation even though in most cases
. . . imposition of sentence must be suspended in order to place a person on
probation.” See Ariz. R. Crim. P. 26.1(b), cmt. (1973) (emphasis added).
Although Rule 26.1 was restyled in 2018, the definition of “sentence” was
not substantively changed. Compare Ariz. R. Crim. P. 26.1(b) (2017), with
Ariz. R. Crim. P. 26.1(c) (2021). Consequently, probation remains a penalty
and, thus, a “sentence” under our rules.
¶30 Our cases have treated probation as a sentence when applying
our procedural rules. For example, in State v. Fuentes, the trial court
convicted Fuentes of drug possession, suspended imposition of sentence,
and placed him on probation. 26 Ariz. App. 444, 446 aff’d and adopted, 113
Ariz. 285 (1976). The next year, the court revoked probation and imposed
a prison sentence. Id. Fuentes then appealed his drug possession
conviction, which was timely only if probation was not a “sentence.” See
id. (quoting then-existing Rule 31.3, which required that any notice of
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NEKO ANTHONY WILSON V. HON. HIGGINS/STATE
VICE CHIEF JUSTICE TIMMER, dissenting.
appeal be filed within twenty days after “the entry of judgment and
sentence”). He argued that because the court suspended his sentence when
it imposed probation, “the appeal time on the original determination of
guilt remained open,” and his appeal was timely. Id. The court of appeals,
and by extension this Court, disagreed, relying on Rule 26.1’s definition of
“sentence” and its comment to conclude that “for purposes of appeal,
‘sentence’ was imposed upon [Fuentes] at the time he was placed upon
probation,” meaning his appeal was untimely. See id. at 446–47; see also State
v. Falco, 162 Ariz. 319, 321 (App. 1989) (citing Rule 26.1 comment and
concluding that “although an order imposing probation is not ordinarily a
sentence, see [Muldoon, 159 Ariz. at 298], when used in the context of Rule
26 and, by inference, Rule 24.3 [authorizing a court to correct ‘any unlawful
sentence’], the term ‘sentence’ does include probation”); Ariz. R. Crim. P.
27.1(b) (recognizing that “[t]he sentencing court” can impose probation
conditions).
¶31 Nothing in Rule 7.2(c)(1)(A) suggests that “sentence”
excludes probation, and we would therefore apply the Rule 26.1(c)
definition. Even putting Rule 26.1(c) aside, the majority’s conclusion that
Rule 7.2(c)(1)(A) applies to the release decision required by Rule 27.7(c) is
akin to hammering a square peg into a round hole. As one example,
although Rule 7.2(c)(1)(A) precludes the court from releasing a convicted
defendant before sentencing if a prison sentence is probable, unless an
exception applies, the court cannot follow this directive in all probation
revocation proceedings because not all probationers are arrested for
violating probation. See Rule 27.6 (providing the court discretion to issue
an arrest warrant or direct the probationer to appear at a revocation
hearing); Rule 27.7(c) (requiring a release decision only if the probationer is
arrested). Thus, under the majority’s view, we are left with the peculiar
circumstance that probationers who are directed to appear at a revocation
hearing but who are not arrested will remain released, even if a reasonable
probability exists that a prison sentence will be imposed, while arrested
probationers in the same circumstance will be detained. Interpreting
“sentence” in Rule 7.2(c)(1)(A) as including probation avoids this
irregularity.
¶32 In sum, we agree with Wilson and the court of appeals that
Rule 7.2(c)(1)(A) does not direct the release decision required by Rule 27.7
when a probationer is arrested on a petition to revoke probation. See Wilson
v. Higgins, 249 Ariz. 344, 348 ¶ 17 (App. 2020), vacated, No. CR-20-0254-PR,
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NEKO ANTHONY WILSON V. HON. HIGGINS/STATE
VICE CHIEF JUSTICE TIMMER, dissenting.
2020 WL 9174968 (Ariz. Oct. 15, 2020). None of the other criminal rules of
procedure governing release apparently apply to the Rule 27.7 release
decision, and this Court would best serve trial courts and litigants by
promulgating a new rule. Cf. State v. Watson, 248 Ariz. 208, 217 ¶¶ 26–27
(App. 2020) (observing that “in the years following Muldoon, Arizona courts
have disregarded traditional distinctions between probation and a sentence
when unique situations require it” and “the lines between sentencing and
probation within our criminal code ‘have blurred’ over time” (quoting State
v. Mathieu, 165 Ariz. 20, 24 (App. 1990))). Because no rule currently exists
to apply, we would vacate the trial court’s order and remand with
directions for the court to make the decision for reasons that comply with
our state and federal constitutions.
14