State v. McGhee ( 2017 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
QUINEL JAMES MCGHEE, Appellant.
No. 1 CA-CR 16-0817
FILED 7-27-2017
Appeal from the Superior Court in Mohave County
No. S8015CR201401403
The Honorable Lee Frank Jantzen, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jason Lewis
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. MCGHEE
Decision of the Court
MEMORANDUM DECISION
Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Maria Elena Cruz joined.
D O W N I E, Judge:
¶1 Quinel James McGhee appeals the revocation of his
probation and resulting prison sentence. For the following reasons, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In October 2014, McGhee was charged in Mohave County
with one count of burglary in the second degree, a class 3 felony. In
February 2015, he pleaded guilty to the charge and was placed on
probation for three years.
¶3 On May 29, 2015, McGhee’s probation officer filed a
revocation petition, alleging McGhee had failed to report to the probation
department and had changed his residence without prior approval. The
petition stated that McGhee’s whereabouts were unknown, and a bench
warrant issued for his arrest.
¶4 At a June 9, 2015 arraignment, the superior court noted that
McGhee was “in custody in another county” and continued the
arraignment. In July 2016, the court ordered McGhee transported from
the Department of Corrections to the Mohave County jail. McGhee
appeared in court on August 24 and denied the allegations of the
revocation petition. The court set a probation violation hearing for
September 14, 2016.
¶5 On McGhee’s motion, the September 14 probation violation
hearing was continued to October 11. On September 21, 2016, the State
filed a supplemental revocation petition, alleging that McGhee had been
found guilty of burglary in the second degree in Maricopa County on May
25, 2016.
¶6 At the October 11 hearing, McGhee denied the allegations of
the first revocation petition but admitted he had been found guilty in
Maricopa County of burglary in the second degree for an offense
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STATE v. MCGHEE
Decision of the Court
committed on June 4, 2015, while he was on probation.1 The superior
court found that McGhee had violated the terms of his probation by
committing the Maricopa County felony offense and sentenced him to a
mitigated sentence of two years’ imprisonment, with 116 days of
presentence incarceration credit, to run consecutive to the Maricopa
County sentence. McGhee timely appealed. We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1),
13-4031, and -4033(A)(1).
DISCUSSION
¶7 McGhee argues his due process rights were violated by
“unjustified delay in [the] probation violation proceedings.” Whether we
review for fundamental error, as the State suggests, or analyze whether
the superior court abused its discretion by finding no unreasonable delay,
as the defense urges, McGhee has not demonstrated a constitutional
violation.
¶8 A probationer is entitled to due process protections,
including a revocation hearing within a “reasonable time” to ensure that
“information is fresh and sources are available.” State v. Adler, 189 Ariz.
280, 282 (1997). McGhee does not contend the purported delay in the
probation revocation proceedings led to stale information or unavailable
sources. In assessing the reasonableness of any such delay, we consider
the “length of delay, reasons for the delay, and prejudice to the
defendant.” State v. Flemming, 184 Ariz. 110, 115 (1995).
¶9 McGhee relies on Adler and Flemming, but we find both cases
readily distinguishable. In Adler, a probation revocation petition was
filed, but the State made no effort to pursue it, and the defendant —
almost three years later — moved for a speedy trial or disposition in
absentia. 189 Ariz. at 281. Even after that motion, the State did not seek to
have the matter adjudicated. Id. The probation revocation hearing finally
occurred more than six years after the petition was filed. Id. at 282. Based
on these facts, we found both unreasonable delay and resulting prejudice.
Id. at 283–85. Flemming also involved a probationer who made concerted
efforts to have his revocation proceedings timely resolved, but
1 The State did not pursue the original revocation petition, stating
that it was proceeding only on the allegation that McGhee committed a
felony while on probation. The court dismissed the first revocation
petition with prejudice.
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STATE v. MCGHEE
Decision of the Court
nonetheless was not brought before the court for more than 27 months
after his revocation petition was filed. 184 Ariz. at 112.
¶10 Unlike Adler and Flemming, McGhee made no attempt to
have his probation violation adjudicated sooner. Nor did he move to
dismiss the probation revocation petition. Unlike the lengthy delays in
those cases, the State here filed the petition within four months of
McGhee’s Maricopa County sentencing, the underlying offense had
occurred only the year before, and the probation violation was
adjudicated roughly one month after the supplemental petition was filed.
¶11 Finally, McGhee asserts that if the probation violation had
been resolved before his sentencing in Maricopa County, “it is likely that
the Maricopa County judge would have ordered that the Maricopa
County prison sentence run concurrently with the Mohave County
sentence.” Not only is this contention speculative, but A.R.S. § 13-708(E)
requires a trial court to impose a consecutive sentence when a defendant
commits an offense while on felony probation.
CONCLUSION
¶12 For the foregoing reasons, we affirm the revocation of
McGhee’s probation and resulting sentence.
AMY M. WOOD • Clerk of the Court
FILED: AA
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