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State v. Panos

Court of Appeals of Arizona, First Division

January 12, 2016

STATE OF ARIZONA, Appellee,
v.
THEODORE JAMES PANOS, Appellant.

Appeal from the Superior Court in Maricopa County No. CR2014-112450-001 The Honorable Margaret R. Mahoney, Judge

Arizona Attorney General's Office, Phoenix By Jillian Francis Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix By Rena P. Glitsos Counsel for Appellant

Presiding Judge Kenton D. Jones delivered the Opinion of the Court, in which Judge Samuel A. Thumma and Judge Peter B. Swann joined.

OPINION

JONES, Judge:

¶1 Theodore Panos challenges the superior court's imposition of a monthly probation service fee as a condition of his unsupervised probation. Panos argues Arizona Revised Statutes (A.R.S.) section 13-901(A), [1] which requires the fee, is unconstitutional under both the U.S. and Arizona Constitutions. For the reasons that follow, we find the statute to be constitutional and affirm the imposition of the fee.

FACTS AND PROCEDURAL HISTORY

¶2 The State initially charged Panos in the superior court with two class six felonies: possession or use of marijuana in violation of A.R.S. § 13-3405(A)(1) and possession of drug paraphernalia in violation of A.R.S. § 13-3415(A). The State later moved to designate both counts as class one misdemeanors. The court granted the motion and, following a bench trial, found Panos guilty as to each count. The court sentenced Panos to two concurrent terms of nine months' unsupervised probation and, as a condition of probation, ordered Panos to pay a monthly probation service fee of sixty-five dollars pursuant to A.R.S. § 13-901(A). Panos timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), -2101(A)(1), 13-4031, and -4033(A)(4).

DISCUSSION

¶3 The probation statute provides in relevant part: "When granting probation to an adult the court, as a condition of probation, shall assess a monthly fee of not less than sixty-five dollars." A.R.S. § 13-901(A).[2] For probation imposed in the superior court, A.R.S. § 13-901(A) makes no distinction between supervised and unsupervised probation. For probation imposed in a justice or municipal court, however, "the fee shall only be assessed when the person is placed on supervised probation." Id.

¶4 All such probation service fees paid into the superior, justice, and municipal courts are ultimately deposited into the "adult probation services fund" and "used to supplement monies used for the salaries of adult probation and surveillance officers and for support of programs and services of the superior court adult probation departments." Id.; see also Ariz. Code of Jud. Admin. § 6-206(C) ("The probation fees account within the adult probation services fund is to be used to pay probation employee salaries and employee-related benefits and to otherwise improve, maintain, or expand adult probation services within the county.").

¶5 Panos argues A.R.S. § 13-901(A) violates (1) the equal protection guarantees found in the Fourteenth Amendment to the U.S. Constitution, and Article 2, Section 13, of the Arizona Constitution; and (2) Article 4, Part 2, Section 19(7), of the Arizona Constitution, which prohibits "special laws" for "[p]unishment of crimes and misdemeanors." Interpretation of a statute is a question of law, which we review de novo. See Zamora v. Reinstein, 185 Ariz. 272, 275 (1996) (citing Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529 (1994)). "[W]e have an obligation to interpret statutes so as to uphold their constitutionality, where possible, " State v. Getz, 189 Ariz. 561, 565 (1997) (citing Business Realty of Ariz., Inc. v. Maricopa Cnty., 181 Ariz. 551, 559 (1995)), and we strongly presume a statute to be constitutional, State v. Tocco, 156 Ariz. 116, 119 (1988) (citing State v. Ramos, 133 Ariz. 4, 6 (1982)). The challenger of a statute's constitutionality bears the burden to prove it is unconstitutional. Tocco, 156 Ariz. at 119 (citing Eastin v. Broomfield, 116 Ariz. 576, 580 (1977)).

I. Equal Protection

¶6 Panos argues A.R.S. ยง 13-901(A) violates state and federal guarantees of equal protection because it requires unsupervised probationers convicted in superior court to pay a monthly probation service fee, yet exempts unsupervised probationers convicted in justice or municipal courts. Panos argues that all unsupervised probationers are "similarly situated, " regardless of the court of conviction, and that the statute discriminates against unsupervised probationers convicted in the superior ...


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