Johnson v. Hon hartsell/state

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
AMMAROO JOHNSON, Petitioner,
v.
THE HONORABLE ROGER HARTSELL, Judge Pro Tempore of the
SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County
of Maricopa, Respondent Judge,
THE STATE OF ARIZONA,
Real Party in Interest.
No. 1 CA-SA 22-0189
FILED 2-21-2023
Petition for Special Action from the Superior Court in Maricopa County
No. CR2017-123242-001
The Honorable Roger L. Hartsell, Judge Pro Tempore (Retired)
The Honorable Kerstin LeMaire, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Office of the Public Defender, Phoenix
By Kevin Brady
Counsel for Petitioner
Maricopa County Attorney’s Office, Phoenix
By Douglas Gerlach and Juli Warzynski (argued)
Counsel for Real Party in Interest
JOHNSON v. HON HARTSELL/STATE
Opinion of the Court
OPINION
Judge Paul J. McMurdie delivered the Court’s opinion, in which Presiding
Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.
M c M U R D I E, Judge:
¶1 Petitioner Ammaroo Johnson1 seeks special action relief from
the superior court’s denial of his motion to dismiss a probation revocation
petition. We accepted jurisdiction. We hold that when filing a probation
revocation petition against a probationer who was previously found to be
incompetent and not restorable, the probation officer or the State must
allege either a new probation violation or facts that show a reasonable belief
the probationer has regained competency. Because Johnson admits the
instant probation revocation petition alleged a new probation violation, the
superior court did not err by denying his petition to dismiss. Thus, we deny
relief.
FACTS AND PROCEDURAL BACKGROUND
¶2 The State charged Johnson with counts of indecent exposure
and criminal trespass in May 2017. Following a no-contest plea, the court
sentenced Johnson to one year in prison and placed him on three years of
supervised probation upon release. Later, Johnson violated the probation
terms, and the court extended the probation until September 2023.
¶3 In February 2021, the State charged Johnson with assault and
sexual exploitation of a minor. Johnson’s probation officer petitioned to
revoke Johnson’s probation due to the new charges and because he
1 Johnson also goes by the names: Rudy Laverne Johnson, Ammaroo
Level Johnson, Johnson Ammaroo, David R. Ammaroo, Rudy Leverne
Johnson, Ammardo L. Johnson, Annaroo Moore, Johnoan Amarro, Marro
L. Moore, Ammaroo Lavelle Johnson, Amaru Moore, Ammaroo Leville
Johnson, Ammardo Johnson, Ammaroo Moore, Ammarro Johnson,
Ammarro Levelle Johnson, Johnson Amarro, Ammardo Level Johnson,
Rudy Johnson, Ammaroo Rudy Johnson, Ammaroo L. Johnson, and
Anmaroo L. Johnson.
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JOHNSON v. HON HARTSELL/STATE
Opinion of the Court
absconded and failed to “participate and cooperate” in mental health
screenings and treatment as required by the probation conditions.
¶4 The defense moved for an examination of Johnson’s mental
health under Arizona Rule of Criminal Procedure 11, which the superior
court granted. After the Rule 11 proceedings, the court found Johnson was
“criminally incompetent” and would likely not be “restored to competency
within 15 months.” See Ariz. R. Crim. P. 11.5(b)(2). The court, however,
ordered Johnson to participate in the county’s restoration treatment
program, ordered confinement, and recommended involuntary treatment.
¶5 In January 2022, about four months into the restoration
program, the superior court held a hearing to reassess Johnson’s
competency. The court again found him “criminally incompetent.” The
court also found “no substantial probability that [Johnson would] be
restored to competency within 21 months after the date of the original
finding of incompetency.”2 The court found reasonable cause to believe that
Johnson was a danger to himself or others, or disabled, and that he would
likely suffer or inflict serious harm. The court ordered the County Attorney
to petition for a court-ordered evaluation for Johnson under Title 36. The
court ordered the Sheriff to transport Johnson for an inpatient evaluation.
Finally, the court dismissed Johnson’s pending criminal charges and the
probation revocation petition without prejudice.
¶6 Later in January 2022, the superior court held a hearing on a
petition for court-ordered treatment. The court found Johnson was
“persistently or acutely disabled,” “suffering from a mental disorder,” and
“unwilling or unable to accept voluntary treatment.” As a result, the court
ordered Johnson to undergo combined inpatient and outpatient treatment
not to exceed 365 days.
¶7 The same morning that the court released Johnson from the
behavioral health center, an officer re-arrested Johnson without a warrant
based on a request from the County Attorney’s Office. Shortly after, the
State recharged Johnson with assault and luring a minor for sexual
exploitation for his alleged actions in February 2021. Johnson’s probation
2 Although a finding of “no substantial probability of restoration”
refers to the conditions present at the time of the evaluation and is subject
to change, we use the term “not restorable” for brevity.
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Opinion of the Court
officer also re-petitioned to revoke probation based on the refiled criminal
charges and other non-compliance with the probation conditions.
¶8 The defense moved to dismiss the charges and probation
revocation petition, arguing that the State failed to provide evidence that
Johnson was “restored to competency.” The superior court found “the prior
adjudication of incompetency create[d] a rebuttable presumption of
continued incompetency that require[d] a meaningful showing that
[Johnson was] no longer incompetent.” Finding “zero indication that
[Johnson] gained competency,” the court granted the motion “without
prejudice and dismiss[ed]” the charges and probation revocation petition
related to the charges. The State appealed the superior court’s order.3
¶9 Johnson’s probation officer petitioned to revoke Johnson’s
probation for a third time in May 2022. The petition asserted Johnson
committed assault and luring a minor for sexual exploitation, contacted a
child “[w]ithout . . . prior written approval,” absconded, and “did not
actively participate and cooperate” in mental health treatment.
¶10 On June 1, the superior court granted Johnson’s treatment
administrator’s request to order Johnson for inpatient treatment so that he
could be psychiatrically stabilized. But at oral argument before this court,
both parties conceded that Johnson was never taken into custody based on
the treatment order. Instead, on June 12, an officer arrested Johnson based
on a probation revocation warrant.
¶11 The defense moved to dismiss the probation revocation
petition, arguing “Johnson remain[ed] incompetent and no evidence [had]
been presented to establish otherwise.” The superior court denied the
motion to dismiss, citing Rider v. Garcia, 233 Ariz. 314 (App. 2013). Johnson
remained in custody based on the probation revocation petition.
¶12 Johnson petitioned for special action relief challenging the
superior court’s denial of the motion to dismiss the probation revocation
petition. Both parties asked that we accept jurisdiction and resolve the
issues raised in an opinion. We accepted jurisdiction of the petition because
3 At the State’s request, we consolidated its appeal with Johnson’s
special action petition and ordered the State to file a brief. When the State
failed to file a brief as ordered, we dismissed its appeal. See Ariz. R. Crim.
P. 31.13(a)(1) (“If an appellant does not timely file an opening brief, the
appellate court may dismiss the appeal.”).
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Opinion of the Court
the denial of the motion to dismiss is not appealable, see Nowell v. Rees, 219
Ariz. 399, 403, ¶ 10 (App. 2008), and the legal issues presented are novel
and of statewide significance, see Levinson v. Jarrett, 207 Ariz. 472, 474, ¶ 4
(App. 2004).
DISCUSSION
¶13 The parties disagree on whether the probation officer must
allege, and the State prove, that Johnson regained competency before
re-petitioning for probation revocation and issuing an arrest warrant on the
petition. In the dismissed appeal, the State challenged the superior court’s
order granting Johnson’s first motion to dismiss. In the petition for special
action, Johnson maintains that the superior court erred by denying the
second motion to dismiss. The probation revocation petition lacked facts
conveying a reasonable belief that Johnson has regained competency.
¶14 “We review a motion to dismiss a criminal prosecution for an
abuse of discretion.” Nowell, 219 Ariz. at 403, ¶ 11. The “court abuses its
discretion when it misapplies the law or predicates its decision on incorrect
legal principles.” Id. (quoting Taylor v. Cruikshank, 214 Ariz. 40, 43, ¶ 10
(App. 2006)). We review interpretations of rules and statutes, as well as
constitutional issues, de novo. Id.; State v. Moody, 208 Ariz. 424, 445, ¶ 62
(2004).
A. The State and Probation Officers Must Follow the Appropriate
Procedures for Refiling Criminal Charges or Re-Petitioning for Probation
Revocation.
¶15 Both parties assert that the standards for refiling criminal
charges and re-petitioning to revoke probation are the same for a defendant
found incompetent and not restorable. Thus, even though we dismissed the
State’s appeal, we address the framework for refiling charges and
re-petitioning to revoke probation.
1. Certain Procedures Are Necessary to Start a Criminal or
Probation Revocation Proceeding After a Court Has Dismissed It
Based on an Incompetency Finding.
¶16 “It is well established that [due process] prohibits the criminal
prosecution of a defendant who is not competent to stand trial.” Medina v.
California, 505 U.S. 437, 439 (1992) (citing Drope v. Missouri, 420 U.S. 162(1975); Pate v. Robinson, 383 U.S. 375 (1966)). This “prohibition is
fundamental to an adversary system of justice” because mentally
incompetent persons cannot defend themselves. Drope, 420 U.S. at 171–72.
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Opinion of the Court
Moreover, failing to “observe procedures adequate to protect a defendant’s
right not to be tried or convicted while incompetent” violates due process.
Id. at 172 (citing Pate, 383 U.S. at 385).
¶17 A defendant is “[i]ncompetent to stand trial” if “as a result of
a mental illness, defect or disability [the] defendant is unable to understand
the nature and object of the proceeding or to assist in the defendant’s
defense.” A.R.S. § 13-4501(2); see also Ariz. R. Crim. P. 11.1. A court cannot
try, convict, sentence, or punish an incompetent person. A.R.S.
§ 13-4502(A).
¶18 Courts must observe procedural protections to protect
incompetent defendants. See Drope, 420 U.S. at 172; see also Godinez v. Moran,
509 U.S. 389, 396 (1993). After the State criminally charges a defendant,
either party or the court can request that the defendant’s competency to
stand trial be evaluated. A.R.S. § 13-4503(A); Ariz. R. Crim. P. 11.2(a). If
“reasonable grounds exist for a competency examination,” the court must
appoint “mental health experts to examine the defendant.” A.R.S.
§ 13-4505(A); see also Ariz. R. Crim. P. 11.3(a). The court must then
determine whether the defendant is competent to stand trial. A.R.S.
§ 13-4510(A). If the court finds the defendant is incompetent and not
restorable, the court can order an evaluation for civil commitment, appoint
a guardian ad litem, or dismiss the defendant’s charges without prejudice.
A.R.S. § 13-4517(A); Ariz. R. Crim. P. 11.5(3)(A).4
¶19 “[A] prior adjudication of mental incompetency gives rise to
a presumption of continued incompetency.” State v. Hehman, 110 Ariz. 459,
460 (1974). If new evidence suggests the defendant has become competent,
the court must “hold an additional hearing to determine the defendant’s
4 Although not applicable here, starting in 2024, if the defendant is
charged with a serious offense, the court may determine whether the
defendant should be involuntarily committed. See S.B. 1310, 55th Leg., 2d
Reg. Sess. (2022) (A.R.S. § 13-4517(A)(4) (effective Jan. 1, 2024)). If the
defendant is found dangerous and needing involuntary commitment, the
court must dismiss the charges without prejudice and order commitment
until the court either finds the defendant is competent or no longer
dangerous. See id. (A.R.S. § 13-4521(F), (G) (effective Jan. 1, 2024)). While
committed, the treating provider must twice a year examine the
defendant’s mental health status and report the defendant’s treatment and
prognosis to the State and the court. See id. (A.R.S. § 36-4002(A) (effective
Jan. 1, 2024)).
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Opinion of the Court
competence.” Ariz. R. Crim. P. 11.6(a)(1), (4). But the “court cannot make a
subsequent finding of competence unless some new evidence . . . is
presented to rebut the presumption of continued incompetence.” State v.
Lewis, 236 Ariz. 336, 341, ¶ 14 (App. 2014). If the court finds the defendant
is competent, “regular proceedings must begin again without delay.” Ariz.
R. Crim. P. 11.6(c); see also A.R.S. § 13-4510(B). This case, however, presents
different facts.
¶20 Our caselaw, statutes, and rules govern competency
proceedings and competency re-adjudications. But this case falls between
these two stages. Here, the court declared Johnson incompetent and not
restorable, which leads to a “presumption of continued incompetency.” See
Hehman, 110 Ariz. at 460. And the court has not re-adjudicated Johnson’s
competence because it dismissed the February 2021 charges and probation
revocation proceedings. Even so, without court permission, the State refiled
the criminal charges, and Johnson’s probation officer re-petitioned to
revoke his probation.
¶21 Pointing to Nowell and Lewis, Johnson argues that the State
needed to prove that Johnson had regained competency before
re-petitioning or refiling. But Nowell and Lewis do not control. Those cases
deal with competency restoration, see Nowell, 219 Ariz. at 407, ¶ 28, and later
competence findings, see Lewis, 236 Ariz. at 341, ¶ 14. Here, the court found
Johnson not competent and not restorable, and he has not been determined
otherwise. The question is what is necessary to start the criminal or
probation revocation proceeding after a court has dismissed it based on a
finding of incompetency.
2. The State Must Seek Court Permission to Refile and
Re-Arrest a Defendant for Charges Dismissed Based on a Finding
of Incompetency, Not Restorable.
¶22 The State argues it did not need to prove Johnson’s
competence before refiling or re-petitioning. It is true that “the [S]tate may
refile charges if post-dismissal events suggest that the defendant has
regained competency.” Rider, 233 Ariz. at 317, ¶ 9. But no such events were
alleged or evidenced here. The State’s ability to refile is “subject to due
process limitations.” Id. at 315, ¶ 2. The State cannot “continually refile
charges for the purpose of holding a defendant based only on his chronic
incompetence to stand trial.” Id. at 317, ¶ 10 (citing Jackson v. Indiana, 406
U.S. 715, 738 (1972)); see also Arizona v. Manypenny, 451 U.S. 232, 246 (1981)
(The need to restrict continued government prosecution by the prosecutor
“reflect[s] a prudential concern that individuals should be free from the
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Opinion of the Court
harassment and vexation of unbounded litigation by the sovereign.”);
Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from bodily restraint
has always been at the core of the liberty protected by the Due Process
Clause from arbitrary governmental action.”). To this end, the State must
have “reasonable grounds to believe that [the defendant] may have
regained competency.” See Rider, 233 Ariz. at 317, ¶ 11.
¶23 Thus, the State cannot refile charges against a presumptively
incompetent defendant without reasonable grounds showing that the
defendant is now competent. The unanswered question is whether the State
need only assure itself that the grounds exist before refiling and re-arresting
a presumptively incompetent defendant or whether the State must first
allege its facts to a court to determine whether reasonable grounds exist.
¶24 The State is concerned that requiring it to allege evidence of
the defendant’s competency before refiling charges will “prevent any
subsequent prosecution.” It contends that because the State cannot request
a competency evaluation or review the defendant’s medical records until it
refiles the charges, “the only reasonable means to determine whether a
defendant is competent or capable of being restored to competency is to
reindict or refile.” But the State does not have to prove the defendant’s
competency before refiling.
¶25 The incompetency presumption that arises when a court finds
a defendant incompetent and not restorable requires the State to provide
information to the court before refiling that supports a reasonable belief that
the defendant has regained competency. See State v. Bradley, 102 Ariz. 482,
487 (1967) (The presumption is outweighed if evidence of restoration to
competency “is accepted as satisfactory . . . by the court.”) (emphasis added),
overruled on other grounds by State v. Harvill, 106 Ariz. 386, 391 (1970). If the
court agrees, the State may refile the charges, and either party or the court
can request a competency examination. See A.R.S. §§ 13-4503, -4505, -4510;
see also Ariz. R. Crim. P. 11.6(a). Such a procedure does not hinder the State’s
ability to reevaluate a defendant’s competency.
¶26 Likewise, the incompetency presumption prevents the State
from re-arresting a defendant for charges previously dismissed because of
incompetency unless a court first determines whether the State has
adequately alleged a reasonable belief that the defendant has regained
competency. Arizona Revised Statutes Section 13-3883(A) authorizes
warrantless arrests so long as there is probable cause the person committed
a misdemeanor in the officer’s presence or a felony. But this statute applies
to an original arrest, and “[a]ll arrests, either with or without a warrant,
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JOHNSON v. HON HARTSELL/STATE
Opinion of the Court
‘must be reasonable under the circumstances.’” Ochser v. Funk, 228 Ariz.
365, 370, ¶ 17 (2011) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011)). If
the State cannot allege evidence to a court supporting its reasonable belief
that a person is now competent, it has not overcome the incompetency
presumption and may not arrest a person for the dismissed charges. To
hold otherwise would condone a “revolving door” procedure allowing the
State to restrain presumed incompetent persons based on past acts without
reason to believe they are now competent.5 The warrant requirement
protects incompetent persons from such unreasonable serial seizures.
¶27 But the incompetency presumption is charge-specific. The
court adjudicates a defendant incompetent when it finds that the defendant
either (1) cannot understand the nature and objective of the proceedings
associated with the charge or (2) cannot help counsel defend the charge. See
Ariz. R. Crim. P. 11.1(a)(2). This means that once a court has determined
that a defendant is incompetent and not restorable, the State may not arrest
or refile on that charge without returning to court to allege a reasonable basis
to believe the defendant is competent. But given this charge-specific
incompetency presumption, if a defendant commits a new crime, the
presumption does not apply. See, e.g., Sills v. Coates, 252 Ariz. 542 (App.
2022) (After the court found the defendant incompetent to stand trial for
attempted robbery, the State could later arrest the defendant for possessing
dangerous drugs.).
3. We Apply the Rider Standard to Renewed Petitions to
Revoke Probation.
¶28 Unlike refiling criminal charges, there is no express statute,
rule, or caselaw explaining how to process probation violations by
defendants who are incompetent after being placed on probation. A charge
is dismissed if a court dismisses a criminal case based on a defendant’s
5 Courts have rejected “revolving door” procedures resulting in
continual re-arrests in other contexts. See, e.g., United States v. Holmes, 452F.2d 249, 260–61 (7th Cir. 1971) (After releasing a person on bail, it was
improper to re-arrest the person without a warrant because there was no
“purpose to be served by making [the] arrest” and to allow otherwise
would justify “harassment by continual arrests.”); State v. Watkins, 399
So.2d 153, 156 (La. 1981) (After releasing a person from custody for failure
to establish probable cause, it was improper to re-arrest that person without
a warrant when the person had not committed a new crime and no exigent
circumstances existed.).
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Opinion of the Court
incompetency. See A.R.S. § 13-4517(A). But if a court dismisses a probation
revocation petition based on incompetency, the conviction is not dismissed,
and the defendant remains on probation.
¶29 And we agree with the parties that criminal prosecutions and
probation revocation proceedings are comparable enough to provide
guidance in this context. For example, a complaint charging a defendant
and a probation revocation petition both lead to a proceeding in which the
court cannot act if the subject is incompetent. See A.R.S. § 13-4502(A); see
also Ariz. R. Crim. P. 2.3, 27.8. In addition, just like a criminal conviction,
probation revocation “result[s] in a loss of liberty,” and probationers are
entitled to due process of law before the court revokes their probation.
Gagnon v. Scarpelli, 411 U.S. 778, 781–82 (1973). A probationer is entitled to
counsel, Ariz. R. Crim. P. 27.7, notice and an opportunity to be heard,
present evidence, and confront witnesses in front of a neutral body. Gagnon,
411 U.S. at 786; see generally Ariz. R. Crim. P. 27 et seq. And courts from other
jurisdictions have held that to follow due process, probationers must be
competent during revocation proceedings.6
¶30 Because of these similarities between probation revocation
proceedings and criminal prosecutions, we look to Rider v. Garcia for
guidance. Rider instructs that if a court dismisses charges because the
defendant is incompetent, the State cannot “continually refile charges for
the purpose of holding [the] defendant.” 233 Ariz. at 317, ¶ 10. Similarly,
we hold that once released based on a finding of incompetency and that
competency is not restorable, the probation officer or State cannot
continually recycle incompetent persons through the criminal justice
system by re-petitioning to revoke probation based on past probation
6 See, e.g., State v. Gonzalez, 457 P.3d 938, 944 (Kan. Ct. App. 2019)
(“With probationers . . . the liberty interest at stake is sufficiently valuable
and the risk of error sufficiently grave that due process requires they be
competent.”); Donald v. State, 930 N.E.2d 76, 79 (Ind. Ct. App. 2010) (“[T]he
Due Process Clause of the United States Constitution requires that a
defendant be competent when participating in a probation revocation
hearing.”); State ex rel. Vanderbeke v. Endicott, 563 N.W.2d 883, 888 (Wis.
1997) (“The core of the process due at a probation revocation proceeding,
the opportunity for a meaningful hearing . . . is not available to an
incompetent probationer.”); see also Harrison v. State, 905 So.2d 858, 860–61
(Ala. Crim. App. 2005); State v. Qualls, 552 N.E.2d 957, 960 (Ohio Ct. App.
1988); Thompson v. State, 654 S.W.2d 26, 28 (Tex. Ct. App. 1983); People v.
Martin, 232 N.W.2d 191, 194 (Mich. Ct. App. 1975).
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violations without a reasonable basis to believe they have regained
competency. See Oligschlaeger v. Mulleneaux, 1 CA-SA 19-0083, 2019 WL
2185161, at *4, ¶ 18 (Ariz. App. May 21, 2019) (mem. decision) (Because “the
State failed to allege any facts in the petition to revoke that supported a
change in [the defendant’s] competency status[,] . . . the court lacked a basis
to order [the defendant] to undergo continued prosecution, involuntary
detention, evaluations, and hearings.”).
¶31 The State’s concerns about the Rider standard are unfounded.
Contrary to the State’s assertion, the probation department can access a
defendant’s medical records and monitor his mental health status. The
Uniform Conditions of Supervised Probation require a probationer to agree
to release or give consent, allowing the probation department to access
information related to the probationer’s treatment and progress. Ariz. Code
Jud. Admin. § 6-207; id. App. A.
¶32 Thus, if a probationer’s incompetence led a court to dismiss a
revocation petition, like a criminal refiling, the incompetency presumption
requires the probation officer or the State to allege facts supporting a
reasonable belief that the probationer regained competency before
re-petitioning for the same probation violations alleged in the previous
petition. And the probationer may be re-arrested for the dismissed
probation violations if the State or probation officer presents to a court a
reasonable belief that the probationer has regained competency.
¶33 We recognize that A.R.S. § 13-901(D) authorizes probation
officers to arrest probationers without warrants. But as explained above,
regardless of statutory authorizations, all arrests must be “reasonable under
the circumstances.” Ochser, 228 Ariz. at 370, ¶ 17. It would be unreasonable
to arrest a probationer for a probation violation previously dismissed
because of incompetency without evidence to believe that the
incompetency presumption has been overcome. We cannot construe a
statutory grant of authority to exceed constitutional protections. See Edward
J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568,
575 (1988) (If a statutory interpretation raises constitutional issues, we
construe the statute to avoid these issues.).
¶34 If a court dismisses an incompetent probationer’s petition to
revoke probation and the probationer commits a new crime or probation
violation, the probation officer may proceed according to the officer’s
authority under A.R.S. § 13-901(D). But allowing arrests for crimes or
violations previously dismissed based on the probationer’s incompetency
would infringe on the constitutional protections against unreasonable
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seizures outlined above. As a result, probation officers cannot arrest
incompetent probationers for alleged violations from a previously
dismissed petition until the officer provides facts showing the officer’s
reasonable belief that the probationer regained competency and the court
issues a warrant based on this reasonable belief.
B. The Probation Department Re-Petitioned Based on Previously
Dismissed Violations but Also Included New Allegations.
¶35 We now turn to the facts in this case. When the court
originally placed Johnson on probation in 2017, he signed the uniform
condition that he would release or give consent needed for the probation
department to monitor his “treatment, behavior and activities.” The first
petition to revoke probation alleged Johnson committed the February 2021
crimes, absconded, and failed to “participate and cooperate” in mental
health screenings and treatment programs. The May 2022 petition similarly
alleged that Johnson committed the February 2021 crimes, absconded, and
failed to “participate and cooperate” in mental health screenings and
treatment programs. The May petition asserted that Johnson “initiated
contact with an unknown minor” but described the same instance that led
to the February 2021 charges.
¶36 At oral argument before this court, Johnson conceded that
along with the February 2021 criminal charges, the May 2022 petition
included new probation violation allegations that Johnson failed to report
and participate in mental health treatment. The State agreed. As a result,
we need not determine whether the technical violation allegations in the
May 2022 petition were new or continuing violations. Thus, Johnson’s
probation officer had the authority under A.R.S. § 13-901(D) to arrest
Johnson for the alleged new probation violations.7 And the petition to
revoke probation did not need to contain facts supporting a reasonable
belief that Johnson regained competency.
¶37 Although the May 2022 petition to revoke probation
contained violations previously dismissed, and the State and Johnson’s
7 We note that Johnson could have been taken into custody under the
order returning him to inpatient treatment. See A.R.S. § 36-540(E)(5) (“If the
patient refuses to comply with an amended order for inpatient treatment,
the court, on its own motion or on the request of the medical director, may
authorize and direct a peace officer to take the patient into protective
custody and transport the patient to the agency for inpatient treatment.”).
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probation officer failed to offer information showing a reasonable belief that
Johnson regained competency, the parties agree the petition included new
violations. As a result, the superior court correctly determined that it could
proceed with the petition.
CONCLUSION
¶38 We accept jurisdiction but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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