295 P.3d 451 (Ariz.App. Div. 2 2013), 2 CA-CR 2012-0225, State v. Hernandez

Docket Nº:2 CA-CR 2012-0225.
Citation:295 P.3d 451, 231 Ariz. 353
Opinion Judge:KELLY, Judge.
Party Name:The STATE of Arizona, Appellee, v. Susan Irene HERNANDEZ, Appellant.
Attorney:Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and David A. Sullivan, Tucson, Attorneys for Appellee. Davis Miles McGuire Gardner, PLLC By Kirk Smith, Tempe, Attorneys for Appellant.
Judge Panel:CONCURRING: GARYE L. VASQUEZ, Presiding Judge and PHILIP G. ESPINOSA, Judge.
Case Date:February 21, 2013
Court:Court of Appeals of Arizona
 
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Page 451

295 P.3d 451 (Ariz.App. Div. 2 2013)

231 Ariz. 353

The STATE of Arizona, Appellee,

v.

Susan Irene HERNANDEZ, Appellant.

No. 2 CA-CR 2012-0225.

Court of Appeals of Arizona, Second Division, Department B.

February 21, 2013

Page 452

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and David A. Sullivan, Tucson, Attorneys for Appellee.

Davis Miles McGuire Gardner, PLLC By Kirk Smith, Tempe, Attorneys for Appellant.

OPINION

KELLY, Judge.

¶ 1 In this appeal from her conviction and sentence for luring a minor for sexual exploitation, entered after a jury trial, Susan Hernandez argues the trial court erred in sentencing her to a mitigated, two-year prison term rather than suspending her sentence

Page 453

and placing her on probation. Specifically, she maintains the trial court's imposition of a prison term punished her for refusing to make statements about her offense to a probation officer, thereby violating her Fifth Amendment right not to incriminate herself. For the following reasons, as well as those expressed in a separate memorandum decision, we affirm the conviction and sentence.1

Background

¶ 2 Before sentencing Hernandez to a mitigated term of imprisonment, the trial court stated it did not intend to place her on probation, citing a probation officer's report that Hernandez had declined to make any statements about her offense during the presentence investigation and, in the officer's opinion, would "not be able to successfully participate in sex offender treatment programs or probation" which "require frequent and frank discussion of the details of the offense that she says she didn't commit." Hernandez maintains "nothing in the record ... suggests [she] was unwilling to participate in a counseling program"—as long as she "did not have to incriminate herself further by discussing the details of her case, or the surrounding circumstances." Citing Jacobsen v. Lindberg, 225 Ariz. 318, 321, 238 P.3d 129, 132 (App.2010), and State v. Hardwick, 183 Ariz. 649, 656, 905 P.2d 1384, 1391 (App.1995), she asserts the trial court's stated reasons for "excluding probation as a sentencing possibility" violated her right to remain silent.2

Discussion

¶ 3 "We will not disturb a sentence that is within the statutory range absent an abuse of the trial court's discretion." State v. Joyner, 215 Ariz. 134, ¶ 5, 158 P.3d 263, 266 (App.2007). And we will find such an abuse of discretion "only if the court acted arbitrarily or capriciously or failed to adequately investigate the facts relevant to sentencing." State v. Cazares, 205 Ariz. 425, ¶ 6, 72 P.3d 355, 357 (App.2003).

¶ 4 It is well-settled that a state "may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself." Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). Nor may a state "compel [ ] testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered." Id. Thus, this court has concluded a defendant's sentence may not be aggravated based on his "lack of contrition," which "is, for legal purposes, tantamount to a refusal to admit guilt." Hardwick, 183 Ariz. at 656, 905 P.2d at 1391;see also Mitchell v. United States, 526 U.S. 314, 316-17, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999) (Fifth Amendment protects right to remain silent at sentencing as well as at trial; in determining facts "which bear upon the severity of the sentence," court may not draw adverse inference from...

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