Background
Mariah Marquez was charged in January 2024 with nine felony drug offenses. She pleaded guilty to one count of unlawful possession of drug paraphernalia, an undesignated class-six offense, and was placed on probation for 18 months under the plea agreement. The agreement required substance-abuse treatment and stated that the offense could not be designated a misdemeanor unless and until she successfully completed probation.
In December 2025, the Adult Probation Department recommended a felony designation because Marquez had failed to schedule a substance-abuse-treatment assessment and had not completed a treatment program. The superior court discharged her from probation and set a review hearing on the designation. It mailed the minute entry setting that hearing to her last known address; Marquez asserted that the address contained an incorrect ZIP code.
Marquez did not attend the February 4, 2026 designation hearing. Her counsel objected to proceeding without her, reporting that she was experiencing homelessness and lacked notice. Her probation officer said he had last contacted her in November 2025 and could not locate her despite visiting several residences and her mother’s and grandmother’s homes. The superior court nevertheless found the mailed minute entry sufficient, emphasizing Marquez’s obligation to keep the court and probation department informed of her whereabouts, and designated the offense a felony. Marquez timely appealed under A.R.S. § 13-4033(A)(3).
The Court’s Holding
The Arizona Court of Appeals vacated the felony designation and remanded for further proceedings. It first rejected the State’s argument that any notice error was harmless because Marquez’s failure to complete probation made a felony designation inevitable. Although the plea agreement barred a misdemeanor designation before successful completion of probation, the court explained that A.R.S. § 13-604(A) still confers discretion over the ultimate designation. Relying on State v. Benson, 176 Ariz. 281 (App. 1993), and State v. Smith, 166 Ariz. 118 (App. 1990), the court held that Marquez was entitled to actual notice and an opportunity to be heard, including an opportunity to present facts and equitable considerations.
The court identified alternatives available to the superior court after learning of Marquez’s homelessness, the unsuccessful efforts to locate her, and counsel’s notice objection: staying the hearing, reinstating probation, leaving the designation open-ended, or inquiring further into actual notice and voluntary absence. It therefore rejected the characterization of the hearing as a mere formality and the felony designation as a foregone conclusion.
Although felony designations ordinarily are reviewed for abuse of discretion under State v. Pinto, 179 Ariz. 593, 597 (App. 1994), the court reviewed de novo the distinct question whether Marquez had actual notice and was voluntarily absent, citing State v. Gomez, No. 1 CA-CR 24-0659, 2026 WL 2178885 (App. July 29, 2026). Her release order satisfied Rule 9.1’s requirements concerning notice of the right to be present and that proceedings could continue in her absence, but not the separate actual-notice requirement. Mailing to the last known address was undisputed, yet the record did not clearly show actual notice. Given counsel’s objections and information about possible treatment-instruction confusion, an administrative error, homelessness, and failed attempts to find Marquez, further inquiry was required. Without it, the appellate court could not determine that her absence was voluntary, so the actual-notice finding was error and the resulting designation could not stand.
Key Takeaways
- A defendant is entitled to actual notice and an opportunity to be heard before a class-six offense is designated a felony.
- Unsuccessful probation does not eliminate the superior court’s statutory discretion or make a felony designation merely ministerial.
- A release order may satisfy two Rule 9.1 notice requirements without establishing actual notice of a particular proceeding.
- The court vacated only the felony designation and remanded; it did not direct a misdemeanor designation or resolve Marquez’s incorrect-ZIP-code argument separately.
Why It Matters
The decision requires a record supporting actual notice and voluntary absence before a designation hearing proceeds without the defendant. When information at the hearing casts doubt on notice, mailing a minute entry to the last known address alone may not suffice; the court must adequately inquire and make a record of the relevant facts.
The memorandum decision is expressly not for official publication and is nonprecedential under Arizona Supreme Court Rule 111(c), citable only as authorized by rule. A footnote also notes that the designation hearing predated Gomez by several months.