                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                     JIMMY JOSEPH KALETA, Petitioner,

                                         v.

THE HONORABLE JERRY BERNSTEIN, Commissioner of the SUPERIOR
   COURT OF THE STATE OF ARIZONA, in and for the County of
             MARICOPA, Respondent Commissioner,

 STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa
              County Attorney, Real Party in Interest.

                              No. 1 CA-SA 16-0065
                                FILED 4-12-2016


 Petition for Special Action from the Superior Court in Maricopa County
                        No. CR2009-155110-001 DT
               The Honorable Jerry Bernstein, Commissioner

              JURISDICTION ACCEPTED; RELIEF DENIED


                                    COUNSEL

Office of the Public Defender, Phoenix
By Angela L. Walker
Counsel for Petitioner

Maricopa County Attorney’s Office, Phoenix
By Jeffrey R. Duvendack
Counsel for Real Party in Interest
                  KALETA v. HON. BERNSTEIN/STATE
                        Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Samuel A. Thumma joined.


W I N T H R O P, Judge:

¶1            Jimmy Joseph Kaleta (“Petitioner”) seeks special action relief
from an order of Respondent Commissioner Jerry Bernstein (“Respondent
Commissioner”) reinstating 500 community restitution hours as a condition
of probation. For the following reasons, we accept special action
jurisdiction but deny relief.

                 FACTS AND PROCEDURAL HISTORY

¶2            In CR2009-155110-001 DT (“the 2009 case”), Petitioner pled
guilty to two felonies: fraudulent schemes and artifices and forgery,
agreeing to a prison term for forgery, and probation for fraudulent schemes
and artifices. In 2010, the court sentenced Petitioner to prison for the
forgery offense, to be followed by seven years’ probation for the fraudulent
schemes and artifices offense. As a condition of probation, Petitioner was
ordered to complete 500 hours of community restitution as directed by the
Adult Probation Department (“APD”).

¶3            In February 2012, Petitioner was released from prison, and his
probation term began. Petitioner then was indicted in CR2013-003602-001
(“the 2013 case”) for offenses that predated the offenses in the 2009 case. In
April 2014, after Petitioner entered a plea in the 2013 case, the court
sentenced him to 1.5 years’ imprisonment. The court suspended probation
in the 2009 case until his discharge from prison, modified Petitioner’s
probation grant in the 2009 case from seven to three years, and—mistakenly
assuming Petitioner had completed his 500 hours of community service—
left blank the box beside the condition imposing community restitution
hours.1

¶4           In May 2015, Petitioner was released from prison, and his
probation in the 2009 case resumed. In July 2015, the APD submitted a


1      Petitioner and his counsel had the opportunity at the hearing to
correct the court’s misunderstanding, but neither did so.

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                  KALETA v. HON. BERNSTEIN/STATE
                        Decision of the Court

memorandum to the court advising that Petitioner had been ordered to
complete 500 hours of community restitution when he was placed on
probation in 2010, and asking for a nunc pro tunc order to include that
requirement as a condition of Petitioner’s probation. In a July 2015 order,
Respondent Commissioner directed the APD to “Take Whatever Action
Deemed Appropriate,” allowing the APD to require the 500 hours of
community restitution.

¶5             In November 2015, Petitioner moved to vacate the July 2015
order, arguing the order improperly modified his probation without due
process, and improperly delegated court authority to the APD. After full
briefing and oral argument, Respondent Commissioner denied Petitioner’s
motion and reinstated the original 500 hours of community restitution as a
condition of probation in the 2009 case. Respondent Commissioner delayed
imposition of the order until April 15, 2016, and Petitioner now petitions
this court for relief from that order.

                               JURISDICTION

¶6             This court may exercise special action jurisdiction when there
is no “equally plain, speedy, and adequate remedy by appeal.” Ariz. R.P.
Spec. Act. 1(a); see also Burton v. Superior Court, 27 Ariz. App. 797, 798, 558
P.2d 992, 993 (1977) (accepting jurisdiction and holding the trial court acted
in excess of its jurisdiction by modifying probation to include restitution
not previously ordered because “[r]estitution or non-restitution was
decided at the time of sentencing and nothing new—no new event—was
[later] alleged or established”). Accordingly, in exercising our discretion,
we accept jurisdiction of the petition.

                                  ANALYSIS

¶7             Petitioner argues Respondent Commissioner lacked
jurisdiction, exceeded his legal authority, and abused his discretion by
reinstating the court’s original order requiring Petitioner to complete 500
hours of community restitution. To grant relief, we must find the
respondent judicial officer abused his discretion or exceeded his
jurisdiction or legal authority. Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251,
253-54, ¶ 10, 63 P.3d 282, 284-85 (2003) (citing Ariz. R.P. Spec. Act. 3); State
v. Dean, 226 Ariz. 47, 50, ¶ 7, 243 P.3d 1029, 1032 (App. 2010) (reviewing for
an abuse of discretion a trial court’s modification of probation). We defer
to the trial court’s factual findings, provided they are supported by
reasonable evidence. Twin City Fire, 204 Ariz. at 254, ¶ 10, 63 P.3d at 285.




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                  KALETA v. HON. BERNSTEIN/STATE
                        Decision of the Court

¶8             Citing State v. Dawson, 164 Ariz. 278, 286, 792 P.2d 741, 749
(1990), Petitioner suggests the State was required to file an appeal in order
to prevent the purported modification to his community service hours from
becoming a “final” sentence. Probation, however, is not a sentence. State
v. Muldoon, 159 Ariz. 295, 298, 767 P.2d 16, 19 (1988). Moreover,
notwithstanding Petitioner’s suggestion, nothing required the State to seek
special action relief. Even assuming the State could have appealed from the
April 2014 disposition, Petitioner has not shown Respondent
Commissioner lacked jurisdiction to modify, or clarify, Petitioner’s
probation.

¶9            “A probationer, probation officer, the State, or other person
designated by the court, at any time prior to absolute discharge, may
request the court to modify or clarify any condition or regulation.” Ariz. R.
Crim. P. 27.3. State v. Contreras recognized:

                When the trial court suspends sentence and orders
       probation, the sentence is not final. The court retains
       jurisdiction over the probationary terms and the probationer
       until the term of probation is successfully completed or until
       it is revoked and a prison sentence ordered. As the defendant
       knew, A.R.S. section 13-901(C) provides that the trial court
       may, in its discretion, modify or add to the conditions of
       probation “at any time prior to the expiration or termination
       of the period of probation,” whether or not probation is
       revoked. In light of this clear statutory statement to the
       contrary, the defendant’s argument that his initial [or any
       later-modified] probationary terms constituted a judgment
       which could not be disturbed fails.

180 Ariz. 450, 453-54, 885 P.2d 138, 141-42 (App. 1994) (internal citations
omitted).

¶10           When reviewing the APD’s memo, Respondent
Commissioner possessed both jurisdiction and authority to grant the
request. See id. By reinstating the original requirement that Petitioner
complete 500 hours of community restitution, Respondent Commissioner
simply clarified an omission based on an erroneous assumption at the April
2014 disposition. Contrary to Petitioner’s claim, this clarification is not an




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                  KALETA v. HON. BERNSTEIN/STATE
                        Decision of the Court

“additional burden,” but merely an affirmation of a probation term that
was never expressly deleted or modified by the court.2

¶11           Relying primarily on Burton v. Superior Court, 27 Ariz. App.
797, 558 P.2d 992 (1977), Petitioner nonetheless maintains Respondent
Commissioner was required to find he violated a condition of his probation
before modifying the terms or conditions of that probation. See id. at 800,
558 P.2d at 995 (“Where sentence is suspended and the defendant is placed
on probation on certain specific terms and conditions, those terms and
conditions are fixed pending an event which constitutes a reasonable basis
to change them.”). Burton, however, does not apply here. Unlike Burton,
whose probationary period was extended beyond the original two-year
probationary period, see id. at 798-99, 558 P.2d at 993-94, Petitioner’s term
of probation was reduced in duration. Moreover, Petitioner has had no
additional burdens imposed upon him from the original terms and
conditions in the 2009 case, as happened in Burton, where restitution was
added to the original terms and conditions without a reasonable basis for
imposing the new burden. See id. at 799-800, 558 P.2d at 994-95. In this case,
rather than impose increased terms of probation, Respondent
Commissioner simply confirmed the previous order regarding community
restitution, which had never been expressly deleted. Accordingly, Burton
is distinguishable and this case is more akin to Contreras, a more recent
decision of this court that is instructive.

¶12           In Contreras, the defendant entered a plea agreement and
stipulated to pay restitution in an amount “not to exceed $1000.00.” 180
Ariz. at 452, 885 P.2d at 140. The trial court imposed a two-year term of
probation, but did not order restitution payments to the victims at that same
time. Id. Two months later, the APD petitioned to modify the conditions
of probation to add a restitution requirement, and after a hearing, the court
did so. Id. The issue on appeal was “whether a trial court may modify a
defendant’s conditions of probation to impose restitution after probation
has been ordered and in the absence of any grounds supporting its

2      Petitioner relies on Black v. Industrial Commission, 83 Ariz. 121, 125,
317 P.2d 553, 555-56 (1957), overruled on other grounds by Estate of Hash v.
Henderson, 109 Ariz. 174, 177, 507 P.2d 99, 102 (1973), to argue that “a nunc
pro tunc order is [per se] inappropriate and an abuse of discretion.” The
portion of that case cited by Petitioner simply states that a nunc pro tunc
order is designed to make the record correspond with the facts and cannot
cause an order or judgment never previously made or rendered to be placed
upon the record of the court. Contrary to Petitioner’s premise, however,
nothing was “added” to his original terms of probation.

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                  KALETA v. HON. BERNSTEIN/STATE
                        Decision of the Court

revocation.” Id. at 451-52, 885 P.2d at 139-40. Contreras argued, just as
Petitioner does here, “that the court lacked jurisdiction to modify the
probationary terms absent some showing of grounds to revoke probation
or other changed circumstances.” Id. at 452, 885 P.2d at 140. Contreras also
argued, as Petitioner does here, that even if jurisdiction existed, “the trial
court abused its discretion in allowing the modification because it imposed
a greater burden upon him than the original terms of probation without a
reasonable basis.” Id. at 453, 885 P.2d at 141. Contreras relied on Burton in
support of his claims, see id., just as Petitioner does in his petition.

¶13            Before noting more recent cases had “called the holding of
Burton into question,” Contreras distinguished Burton, noting it was unclear
whether Burton had agreed to pay restitution as part of his plea agreement
and that Burton’s term of probation was extended, whereas Contreras’s
term of probation remained unchanged. Id. (citing Burton, 27 Ariz. App. at
800, 558 P.2d at 995). These same distinguishing features are present here.
When placed on probation, Contreras had notice of his obligation to pay
restitution, see id. at 454, 885 P.2d at 142; similarly, Petitioner had notice of
his community restitution obligation when he was placed on probation in
the 2009 case, and the trial court has continuing jurisdiction to ensure
Petitioner complies with his obligation.3

¶14            Petitioner also argues his due process rights were violated by
the court’s failure to set a hearing before the July 2015 order. Even were we
to conclude the failure to set a hearing before the July 2015 order was a
denial of due process—and we do not conclude so—any such issue was
mooted by the subsequent motion practice, oral argument, and ruling by
the court in December 2015.




3      Also, as for the court’s form order allowing the APD to “Take
Whatever Action Deemed Appropriate,” Petitioner provides no direct
authority for his claim that particular order is a prohibited delegation of the
court’s authority, and we conclude that on this record, it is not. The order
simply clarified or confirmed a term of Petitioner’s probation. See also
generally Ariz. R. Crim. P. 27.1.

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               KALETA v. HON. BERNSTEIN/STATE
                     Decision of the Court

                          CONCLUSION

¶15            For the foregoing reasons, we accept jurisdiction of
Petitioner’s special action petition but deny relief.




                             :ama




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