The State of Arizona v. Hon. Griffin Ryan Ahlersmeyer ( 2023 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Petitioner,
v.
HON. BRENDEN J. GRIFFIN, JUDGE OF THE
SUPERIOR COURT OF THE STATE OF ARIZONA,
IN AND FOR THE COUNTY OF PIMA,
Respondent,
and
RYAN AHLERSMEYER,
Real Party in Interest.
No. 2 CA-SA 2023-0006
Filed March 10, 2023
Special Action Proceeding
Pima County Cause No. CR20190243001
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Laura Conover, Pima County Attorney
By Tai Summers, Deputy County Attorney, Tucson
Counsel for Petitioner
Megan Page, Pima County Public Defender
By Sarah Kostick, Chief Assistant Public Defender, Tucson
Counsel for Real Party in Interest
STATE v. GRIFFIN
Opinion of the Court
OPINION
Chief Judge Vásquez authored the opinion of the Court, in which Presiding
Judge Eckerstrom and Judge Sklar concurred.
V Á S Q U E Z, Chief Judge:
¶1 The state seeks special action review of the respondent
judge’s order granting real-party-in-interest Ryan Ahlersmeyer’s request to
revoke his probation. We accept jurisdiction and grant relief.
¶2 In 2019, Ahlersmeyer pled guilty to failing to register as a sex
offender and luring a minor for sexual exploitation. The plea agreement
mandated that Ahlersmeyer be sentenced to prison for the first offense but
left to the trial court’s discretion whether to impose a prison term on the
second or to suspend the imposition of sentence and place him on lifetime
probation. At sentencing, Ahlersmeyer requested lifetime probation. The
trial court imposed a 4.5-year prison term for failing to register and lifetime
probation for luring.
¶3 In 2022, while serving his prison term, Ahlersmeyer filed a
motion to modify his conditions of probation, asking the respondent judge
to revoke probation and sentence him to a consecutive prison term. The
respondent denied the request, in part because he believed he lacked
authority to revoke a term of probation before it began.
¶4 After his release from prison, Ahlersmeyer again filed a
motion asking the respondent judge to revoke his probation and sentence
him accordingly. The respondent granted the motion, concluding he had
“discretion to revoke [Ahlersmeyer]’s probation under A.R.S. § 13-901 to
A.R.S. § 13-903 [and] Arizona Rules of Criminal Procedure, Rule 27.” The
respondent further found Ahlersmeyer had “knowingly, intelligently and
voluntarily explained to the Court that he has no intention of following his
Conditions of Probation.” This petition for special action followed.
¶5 Our exercise of special action jurisdiction is appropriate when
a party has no “equally plain, speedy, and adequate remedy by appeal,”
Ariz. R. P. Spec. Act. 1(a), and the issue presented is a pure question of law,
Phx. Newspapers, Inc. v. Ellis, 215 Ariz. 268, ¶ 9 (App. 2007). The state
arguably has a remedy by appeal under A.R.S. § 13-4032(4), which allows
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Opinion of the Court
the state to appeal from “[a]n order made after judgment affecting the
substantial rights of the state.”1 But, despite the possible appealability of
the respondent’s order here, we accept special action jurisdiction because
the issue presented is a matter of law and our grant of relief prevents an
unnecessary sentencing proceeding.
¶6 The state argues the respondent judge lacked discretion to
revoke Ahlersmeyer’s probation in the absence of a petition to revoke. We
agree that no rule or statute gives a trial court the authority to do so and
that the respondent erred by concluding otherwise.
¶7 A trial court has no inherent authority to modify a sentence.
Shinn v. Ariz. Bd. of Exec. Clemency, ___ Ariz. ___, ¶ 32, 521 P.3d 997, 1005
(2022). Thus, it may do so only as permitted by our rules of criminal
procedure. Id. A sentence is final when announced, Ariz. R. Crim. P.
26.16(a), and a trial court may not modify a sentence more than sixty days
after sentencing. Ariz. R. Crim. P. 24.3(a). Even then, it may do so only if
the original sentence is unlawful. Id.¶8 Likewise, a trial court has no inherent power to impose
probation, State v. Lewis, 224 Ariz. 512, ¶ 13 (App. 2010), but it is “a matter
of legislative grace.” State v. Gomez, 212 Ariz. 55, n.6 (2006). Once ordered,
a court may modify “any condition or regulation of probation,” Ariz. R.
Crim. P. 27.3(b), that is, the terms previously set by the court and the
requirements imposed by the probation officer, Ariz. R. Crim. P. 27.1(a).
Any modification of probation “must comply with case law and statutes,
due process, and statutory limitations.” Ariz. R. Crim. P. 27.3(b)(1).
¶9 Although a trial court has the authority to revoke probation,
that process is triggered by a petition to revoke filed by the probation officer
or by the state. Ariz. R. Crim. P. 27.6, 27.8(a). A court may in some
circumstances shorten a probation term and terminate probation early, but
there are specific requirements that must be met, Ariz. R. Crim. P. 27.4, and
that is not what Ahlersmeyer requested here.
¶10 Nor do Arizona’s statutes governing probation suggest a trial
court has the authority to sua sponte revoke probation. Section 13-901(C),
1See also State v. Moore, ___ Ariz. ___, ¶¶ 4, 8-9, 522 P.3d 1108, 1109,
1110 (App. 2022) (noting “probation affects substantial rights of the state”);
State v. Lewis, 224 Ariz. 512, ¶¶ 9, 10 (App. 2010) (citing § 13-4032(4) in
noting appellate jurisdiction over state’s appeal from decision to terminate,
rather than revoke, probation).
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Opinion of the Court
A.R.S., allows a court to revoke probation “if the defendant commits an
additional offense or violates a [probation] condition,” and the court may
do so only “in accordance with the rules of criminal procedure.” Those
rules, as noted above, allow revocation only when a violation has allegedly
occurred and the state or a probation officer requests it. Although a court
may terminate probation before the term expires, that process is available
only when “the ends of justice will be served and if the conduct of the
defendant on probation warrants it.” § 13-901(E). And, again, Ahlersmeyer
did not ask for his probation to be terminated; he asked for it to be revoked.
¶11 Ahlersmeyer counters that no rule prohibits a trial court from
revoking probation at the defendant’s request. He is apparently asserting
that a court must have such power inherently. But this position is contrary
to § 13-901(C) and the current rules applicable to such proceedings. As we
have explained, both the statute governing a court’s authority to revoke
probation and the rules governing the procedure for doing so require a
violation of the probation terms. Even then, revocation is available only
after a petition has been filed and the court has held a revocation
proceeding compliant with the criminal rules. If a court could revoke
probation in the absence of a violation, petition, and court proceeding, this
statutory provision would be superfluous. We decline to adopt such an
interpretation. See State v. Arthur, 125 Ariz. 153, 155 (App. 1980)
(“Whenever possible, a statute will be given such an effect that no clause,
sentence, or word is rendered superfluous, void, contradictory or
insignificant.”).
¶12 Ahlersmeyer also suggests that, because a defendant may
simply reject probation and choose prison, the trial court must have
authority to revoke probation if the defendant requests it. His position
finds some support in Arizona caselaw. In State v. Montgomery, our
supreme court held that a probation provision requiring a defendant to
submit to warrantless searches by a police officer was constitutional. 115
Ariz. 583, 583-85 (1977). The court commented, without explanation or
analysis, that a defendant “may reject the terms of probation and ask to be
incarcerated instead if he finds the terms and conditions of his probation
unduly harsh.” Id. at 584.
¶13 But, as this court pointed out in Demarce v. Willrich, at the time
the supreme court made this statement, the governing statutes dictated that
the maximum probation term and maximum prison term were the same.
203 Ariz. 502, ¶¶ 10, 13 (App. 2002). That is, the defendant’s rejection of
probation meant only that he would serve the same term in prison: “Where
and how he chose to do the time was up to him.” Id. ¶ 10. That is no longer
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Opinion of the Court
the case. Id. ¶ 13. And we additionally noted in Demarce that no court had
interpreted Montgomery to mean a defendant could withdraw from
probation after it had been imposed and, moreover, such an approach
would effectively nullify A.R.S. § 13-902(E), which provides for lifetime
probation for certain offenses. Id. ¶¶ 11, 15.
¶14 Ahlersmeyer is correct that, in Demarce, we determined only
that the trial court was not required to accept a defendant’s post-sentencing
attempt to reject probation. But our reasoning limiting Montgomery to the
law in effect at the time is equally applicable in this context. Unlike when
Montgomery was decided, the probation term and prison term need not be
the same. Concluding that a court has inherent discretionary authority to
allow a defendant to reject probation after sentencing would be as
inconsistent with § 13-902(E) as allowing the defendant to reject it out of
hand, as we concluded in Demarce. And, as noted above, it would be
inconsistent with the requirement in § 13-901(C) that probation revocation
occur only after a violation.
¶15 Ahlersmeyer is also correct that, in Demarce, the defendant
had negotiated for probation as part of his plea. 203 Ariz. 502, ¶¶ 2, 17. But
this difference does not make that court’s reasoning less compelling. That
Ahlersmeyer’s plea did not require probation does not change that the relief
he requests is inconsistent with the statutes and rules governing probation
and its revocation.
¶16 Ahlersmeyer asserts that the better approach would be to
allow a defendant to request probation be revoked rather than having to
deliberately violate it in an effort to achieve the same end. As we noted in
In re Maricopa County Juvenile Action No. JV-500210, 177 Ariz. 3, 5 (App.
1993), one possible justification for the supreme court’s statement in
Montgomery is that it may be futile to impose probation “on a person who
avows he will not abide by its terms.” But that fact, even if true, does not
allow us to create authority where none exists nor disregard the statutory
scheme.
¶17 Nor is it absurd for Ahlersmeyer to have to violate probation
to achieve revocation, as he posits. Revocation is only one of several tools
available to a trial court to promote compliance with probation—a court
could instead modify the terms in a way that makes compliance more likely
but is still consistent with probation’s rehabilitative purpose. See State v.
Lietzau, 248 Ariz. 576, ¶ 28 (2020) (noting “rehabilitative and reformative
purposes of probation”). The legislature could have intended that a court
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STATE v. GRIFFIN
Opinion of the Court
utilize other tools for defendants who are merely recalcitrant, reserving the
final remedy of revocation for actual violations.
¶18 For these reasons, we accept special action jurisdiction and
grant relief. We vacate the respondent judge’s order granting
Ahlersmeyer’s motion to modify the terms of his probation.
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