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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STATE OF ARIZONA, Appellant,

v.

HERCULES VU NGUYEN, Appellee.

No. 1 CA-CR 23-0181 

Appeal from the Superior Court in Maricopa County

No. CR2020-145645-001

The Honorable Anne H. Phillips, Judge Pro Tempore

VACATED AND REMANDED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Philip Casey Grove

Counsel for Appellant

Maricopa County Public Defender’s Office, Phoenix

By Kristen Reller

Counsel for Appellee

FILED 4-4-2024
STATE v. NGUYEN

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Angela K. Paton delivered the decision of the Court, in 

which Judge Michael S. Catlett and Judge James B. Morse Jr. joined.

P A T O N, Judge:

¶1 The State appeals the superior court’s order terminating 

Hercules Nguyen’s probation. Because the court terminated Nguyen’s 

probation without providing the State notice and an opportunity to be 

heard, as required by Arizona Revised Statutes (“A.R.S.”) Section 13-901(E)

and Arizona Rules of Criminal Procedure (“Rule”) 27.4(a), we vacate the 

court’s order and remand for further proceedings consistent with this 

decision. 

FACTS AND PROCEDURAL HISTORY

¶2 In December 2020, the State charged Nguyen with sexual 

abuse, indecent exposure, and refusing to provide his true name when 

lawfully detained. Nguyen pled guilty to one count of attempted sexual 

abuse in exchange for dismissal of the other charges. The superior court 

sentenced Nguyen to ten years’ supervised probation. His probation term 

started on June 14, 2021. 

¶3 In July 2021, the probation department petitioned to revoke 

Nguyen’s probation, alleging he failed to report to the department within 

72 hours of sentencing and absconded—with whereabouts unknown since 

June 17, 2021. The superior court issued a warrant for his arrest. In 

September 2021, the department supplemented its petition with allegations 

that Nguyen committed additional misdemeanor crimes.

¶4 Nguyen was arrested, and the superior court held a 

revocation arraignment hearing. After the hearing, Nguyen’s counsel 

moved for a Rule 11 evaluation of Nguyen’s competency, which the court 

granted. The court then transferred the case to the Rule 11 court.

¶5 After a Rule 11 hearing in April 2022, the court found Nguyen 

incompetent. The court also found there was no clear and convincing 

evidence that Nguyen would not be restored to competency within 15 

months. The court ordered that Nguyen receive treatment from a 

behavioral health center. 
STATE v. NGUYEN

Decision of the Court

3

¶6 In June 2022, the court held a hearing to reassess Nguyen’s 

competency. During this hearing, the court again found Nguyen 

incompetent. The court also found there was no substantial probability that 

he would be restored to competency within 21 months. The court 

dismissed the probation department’s petition to revoke probation, 

effective upon Nguyen’s admission to a behavioral health center for an 

inpatient evaluation.

¶7 An outpatient behavioral health clinic arranged to pick 

Nguyen up from the inpatient center for court-ordered treatment in August 

2022, but Nguyen had again absconded. The probation department was 

unable to contact or locate Nguyen and filed another petition to revoke his 

probation. He was subsequently arrested.

¶8 On April 18, 2023, the court held a second probation 

revocation arraignment hearing. Nguyen’s counsel asked the court to 

dismiss the petition to revoke. The court granted Nguyen’s motion to 

dismiss without prejudice. The superior court ordered that Nguyen be 

released from custody to a representative from his clinical team. The 

corresponding release order indicated that he was given “[t]erminal 

disposition with time served.”

¶9 In a minute entry filed one week later, the superior court 

ruled: “Upon the Court’s own motion, IT IS ORDERED terminating 

Defendant’s probation effective this date.” The court gave no explanation 

for its sua sponte termination order. 

¶10 The State timely appealed the court’s order. We have 

jurisdiction under Article 6, Section 9, of the Arizona Constitution and 

Sections 12-2101(A)(1), -120.21(A)(1), 13-4031, 13-4032(4).

DISCUSSION

¶11 The State contends the superior court erred by terminating 

Nguyen’s probation eight years early without providing the State with 

notice and an opportunity to be heard, as Section 13-901(E) and Rule 27.4(a)

require. We agree.

¶12 We review the superior court’s early termination of probation 

for an abuse of discretion. State v. Lewis, 226 Ariz. 124, 126, ¶¶ 9, 15 (2011) 

(citing State v. Patel, 160 Ariz. 68, 89 (App. 1989)). “‘[The superior] court 

abuses its discretion if it misapplies the law or exercises its discretion based 

on incorrect legal principles.’” State v. Reed, 252 Ariz. 328, 331, ¶ 13 (2022) 

(citation omitted). 
STATE v. NGUYEN

Decision of the Court

4

¶13 Section 13-901(E) provides that “the [superior] court, on its 

own initiative . . . after notice and an opportunity to be heard for the prosecuting 

attorney and, on request, the victim, may terminate the period of probation 

. . . and discharge the defendant at a time earlier than that originally 

imposed.” A.R.S. § 13-901(E) (emphasis added). Thus, before terminating 

Nguyen’s probation, the superior court was required, at a minimum, to 

provide the prosecuting attorney with notice and an opportunity to be 

heard on the issue of termination. That did not occur here. Instead, the 

superior court sua sponte terminated Nguyen’s probation in a signed 

minute entry filed one week after the second probation revocation hearing, 

at which there was no mention of terminating Nguyen’s probation. Because 

the court failed to give the prosecuting attorney any notice of its intent to 

terminate Nguyen’s probation before entering the order, as Section 13-

901(E) requires, we hold the court erred.

¶14 The State also contends the superior court abused its 

discretion by not giving Rule 27.4(a)(1)(A) notice to the State, the 

probationer, and the probation department and by not considering an 

investigation report, as Rule 27.4(a)(1)(B) requires, before terminating 

Nguyen’s probation. Specifically, Rule 27.4(a)(1) provides that “the court 

may terminate probation and discharge the probationer as provided by law 

after: giving notice to the State, the probationer, and the probation 

department; and considering an investigation report.” Ariz. R. Crim. P. 

27.4(a)(1)(A), (B) (emphasis added). As discussed above, the superior court

terminated Nguyen’s probation without providing any notice to the parties. 

Thus, the court also erred by violating Rule 27.4(a)(1). 

¶15 The State also argues the superior court abused its discretion 

by terminating probation without deciding whether doing so served the 

interests of justice or whether Nguyen’s conduct on probation warranted it. 

We need not reach these issues because the court cannot make those 

findings under Section 13-901(E) without first notifying the State that it is 

considering terminating an individual’s probation, which did not occur 

here. 

¶16 Nguyen raises several arguments generally defending the 

superior court’s decision to terminate his probation, including that 

continuing his probation would subject him to “limitless incarceration” and 

“imposing additional punishment on an incompetent defendant” would 

violate due process. But because we hold the court failed to comply with 

the law and rule before terminating Nguyen's probation, we express no 

position on the merits of the underlying decision. 
STATE v. NGUYEN

Decision of the Court

5

¶17 The superior court failed to comply with Section 13-901(E) 

and Rule 27.4(a) and, thus, erred when it terminated Nguyen’s probation.

CONCLUSION

¶18 We vacate the superior court’s order terminating Nguyen’s 

probation and remand for further proceedings consistent with this decision.