State v. Risher

OPINION

JACOBSON, Presiding Judge.

This case presents the novel issue of whether a defendant found guilty of an “open-end” offense (one which may either be treated as a misdemeanor or a felony, depending upon the sentence imposed, see A.R.S. § 13-103(B), as amended, (Supp. 1973), may be placed on probation for a period of five years and still be designated as a “misdemeanant” upon successful completion of the probationary period.

This case originally arose in this court on an Anders¹ brief filed by appellant’s counsel. The facts reflected by that brief and the record are that the defendant, Scott Edward Risher, was charged with aggravated battery committed upon his wife in violation of A.R.S. §§ 13-241 and 13-245, as amended, (Supp.1973). On June 3,1976, the defendant, pursuant to a plea agreement, pled guilty to the offense of aggravated battery, “open-end”. This plea was accepted as guilty of aggravated battery, “open-end”.

The court has reviewed this proceeding and finds that it complies with all constitutional, statutory and criminal rules. We therefore conclude the plea was properly entered and accepted.

At the time of sentencing, the trial court placed the defendant on probation for a period of five years on certain conditions, including as a condition of probation that defendant be incarcerated in the Maricopa County jail for a period of four months. The sentencing judge also indicated that in the event the defendant successfully completed his probation, the charge would be designated as a misdemeanor.

Pursuant to A.R.S. § 13-1715, this court reviewed the proceedings for fundamental error and concluded a substantial question was presented concerning the validity of the court’s sentence in (1) failing to designate at the time of pronouncement of sentence whether the offense was a misdemeanor or felony; and (2) whether having placed the defendant on probation for a period of five years, the court could at the successful termination of that probationary period designate the offense as a misdemeanor. These issues were presented to counsel for the defendant and the state with a request that supplemental briefs be filed. These briefs have now been filed and both counsel agree that there are no Arizona cases directly on point.

A.R.S. § 13-245, as amended, (Supp.1973) provides the punishment for aggravated battery, the crime for which the defendant was found guilty:

“B. An aggravated battery . shall be punished by a fine of not less than one hundred nor more than two thousand dollars, or by imprisonment in the county jail not to exceed one year, or both, or by imprisonment in the state prison for not less than one nor more than five years.”

A.R.S. § 13-103(B), as amended, (Supp. 1973) provides:

“When a crime or public offense punishable by imprisonment in the state prison is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a sentence imposing a punishment other than imprisonment in the state prison.”

It is thus clear that aggravated battery being both punishable by a fine or imprisonment in the county jail or state prison, could, depending upon the sentence imposed, be treated under A.R.S. § 13-103(B), as amended, (Supp.1973) either as a felony or a misdemeanor. This type of offense has become known in common parlance as an “open-end offense”.

What A.R.S. § 13-103(B), as amended, (Supp.1973) has failed to consider, is the fact of probation. That failure creates the problem here, as the trial court neither imposed a fine nor a jail term other than as a condition of probation, nor placed the defendant in the state prison, but rather granted probation.

The granting of probation is controlled by A.R.S. § 13-1657, as amended, (Supp.1976) which provides in pertinent part that:

“(A)(1); The court may suspend the imposing of sentence and may direct that the suspension continue for such period of time, not exceeding the maximum term of sentence which may be imposed, and upon such terms and conditions as the court determines . . . .” (emphasis added).

When the case law in this area is added to the statutory failure to consider probation in determining what designation an open-end offense must take, the picture becomes even more complex. The case law has developed that an open-end offense is a felony until a sentence is imposed other than imprisonment in the state prison. State v. Raffaele, 113 Ariz. 259, 550 P.2d 1060 (1976); State v. Vineyard, 96 Ariz. 76, 392 P.2d 30 (1964); In re Gutierrez, 82 Ariz. 21, 307 P.2d 914, cert. denied, 355 U.S. 17, 78 S.Ct. 79, 2 L.Ed.2d 23 (1975). As was stated in Raffaele:

“A.R.S. § 13-103 answers the question of when an ‘open-end offense’ becomes a misdemeanor. Subsection B of the statute provides in part, ‘. . .it shall be deemed a misdemeanor for all purposes after a sentence imposing a punishment other than imprisonment in the state prison.’ Until the sentence is imposed . aggravated assault is a felony.” (emphasis added) Id. 113 Ariz. at 263, 550 P.2d at 1064.

If Raffaele, Vineyard and Gutierrez were followed literally, absurd results could ensue. For example, the trial court in this case suspended imposition of sentence for five years. This is a “sentence” other than imprisonment in the state prison which arguably results in the offense being designated a misdemeanor. If revocation of this probation were to occur, the defendant could theoretically argue that the only sentence that could be imposed would be that of a misdemeanor which carries the maximum of six months’ imprisonment in the county jail. See A.R.S. § 13-1645. As aptly stated by the state, such a result would be “clearly intolerable”.

The state argues, as a way out of this dilemma, that the granting of probation is not a “sentence” as A.R.S. § 13-1657(A)(1), as amended, (Supp.1976) clearly provides that: “The court may suspend the imposing of sentence and may direct that the suspension continue . . . .” (emphasis added) There are general statements in cases to support this proposition. See State v. Pitts, 26 Ariz.App. 390, 548 P.2d 1202 (1976) (holding that a fine cannot be imposed as a condition of probation, as a fine is a “sentence” and probation is a “suspension of sentence”); State v. Jackson, 107 Ariz. 371, 489 P.2d 8 (1971) (holding that for enhanced punishment purposes, probation is the holding of a “sentence” in abeyance); In re Application of Johnson v. State, 5 Ariz.App. 125, 423 P.2d 896 (1967) (holding that defendant was not entitled to credit for time spent on probation as defendant being placed on probation was not in fact “sentenced”); Brooks v. State, 51 Ariz. 544, 78 P.2d 498 (1938) (holding for appeal purposes the time for appeal from original conviction begins to run from revocation of probation as until that time no “sentence” has been imposed. This case was subsequently overruled in State v. Heron, 92 Ariz. 114, 374 P.2d 871 (1962). However, see State v. Fuentes, 26 Ariz.App. 444, 549 P.2d 224 (1976), majority opinion of the Court of Appeals adopted by Arizona Supreme Court in 113 Ariz. 285, 551 P.2d 554 (1976), holding that probation is a “sentence”.

The problem we have with the state’s reasoning that the granting of probation is not a “sentence”,-is that under the rationale of Raffaele, an open-end offense remains a felony until “sentence” is imposed. In an open-end offense in which the court grants probation for a six-months period, clearly an indication to treat the offense as a misdemeanor, under the state’s reasoning, this offense must be treated as a felony, as no “sentence” has been invoked. Again, clearly an intolerable result.

In our opinion, the confusion surrounding “open-end offenses” has resulted from the failure of the courts to adequately distinguish between the two conceptual usages of the word “sentence” as applied both in the statutes, criminal rules and case law. First, “sentence” can denote “the pronouncement by the court of the penalty imposed upon the defendant after a judgment of guilt.” Rule 26.1, Rules of Criminal Procedure, 17 A.R.S. In this sense, if probation is granted, it is the pronouncement of the court and hence a sentence. See Comment to Rule 26.1, supra.

The second use of the word “sentence” refers to the penalty of fine or imprisonment actually imposed by the particular statute for the crime involved. See, for example, A.R.S. Title 13, Chap. 6, Art. 7, “Sentencing”, where the term “punishment” is used synonymously with the word “sentence”. It is in this sense that A.R.S. § 13-1657, as amended, (Supp.1976) refers to the power of the court to “[SJuspend the imposing of sentence [penalty imposed by statute] . . .for such period of time, not exceeding the maximum term of sentence [imprisonment] . . . (emphasis added)

When viewed in this light, the only logical interpretation of the word “sentence” in A.R.S. § 13-103(B), as amended, (Supp.1973), which “sentence” denotes whether the open-end offense will be a misdemeanor or a felony, is that it means the pronouncement of the penalty to be invoked. If that pronouncement is probation (“[A] sentence imposing a punishment other than imprisonment in the state prison”, A.R.S. § 13-103(B), as amended, (Supp. 1973)), then the provision of A.R.S. § 13-1657, as amended, (Supp.1976) comes into play to determine whether the term of probation is consistent with a felony or a misdemeanor.

This is so for A.R.S. § 13-1657, as amended, (Supp.1976) clearly provides that the term of probation cannot exceed “[T]he maximum term of sentence [incarceration] which may be imposed.” Therefore, if the court places a defendant charged with an “open-end offense” on probation for a period of time in excess of that allowed for misdemeanor incarceration, the court of necessity must have treated the offense as a felony, for no other than felony treatment would provide the power of the court to impose such an extended probationary period.

Applying this reasoning to the facts in this case, it is clear that when the court placed the defendant on probation for a period of five years (the maximum term of incarceration in the state prison allowed under the statute), the court, for the purposes of A.R.S. § 13-103(B), as amended, (Supp.1973) “sentenced” the defendant for a felony conviction. It necessarily follows that the court has no authority to subsequently declare this felon a misdemeanant only. State v. Wilson, 113 Ariz. 145, 548 P.2d 23 (1976); Huerta v. Flood, 103 Ariz. 608, 447 P.2d 866 (1968).

It is equally clear in this case that the trial court was under the good faith impression that it possessed the power to subsequently designate the defendant’s crime as a misdemeanor² and that this may have entered into the court’s consideration in rendering sentence. For this reason, we vacate the sentence heretofore entered and remand for resentencing in accordance with this opinion. In all other regards, the judgment of the trial court is affirmed.

OGG, J., concurs.

1 . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

2 . The court recognizes that the device utilized by the trial court may have salutary effects, by providing an added incentive to successful completion of a probationary period. A bill recently introduced in the legislature may accomplish this result. See State of Arizona Senate Bill 1008, 33rd Legislature, First Regular Session.