Fushek v. State

• Decision Date: 14 February 2008
• Docket Number: No. CV-07-0251-PR.,CV-07-0251-PR.
• Citation: Fushek v. State, 183 P.3d 536, 218 Ariz. 285 (Ariz. 2008)
• Parties: Dale Joseph FUSHEK, Petitioner/Appellee, v. STATE of Arizona, Real Party in Interest/Appellant.
• Court: Arizona Supreme Court

183 P.3d 536

218 Ariz. 285

Dale Joseph FUSHEK, Petitioner/Appellee, v.STATE of Arizona, Real Party in Interest/Appellant.

No. CV-07-0251-PR.

Supreme Court of Arizona, En Banc.

February 14, 2008.

Stinson Morrison Hecker, L.L.P. by Michael Charles Manning and Law Office of Thomas M. Hoidal, P.L.C. by Thomas M. Hoidal, Phoenix, Attorneys for Dale Joseph Fushek.

Andrew P. Thomas, Maricopa County Attorney by Diane Gunnels Rowley, Deputy County Attorney, Phoenix, Attorneys for State of Arizona.

OPINION

HURWITZ, Justice.

¶ 1This case requires us to decide whether the Arizona Constitution guarantees a jury trial to a misdemeanor defendant when the State files a special allegation of sexual motivation pursuant to Arizona Revised Statutes("A.R.S.")§ 13-118(2001).

I.

¶ 2 In November 2005, the Maricopa County Attorney filed a complaint in the San Tan Justice Court alleging that Dale Joseph Fushek had committed ten misdemeanors.The State also filed a special allegation of sexual motivation pursuant to A.R.S. § 13-118¹ for each alleged offense.If the trier of fact finds sexual motivation, the sentencing judge can require Fushek to register as a sex offender.A.R.S. § 13-3821(C)(Supp.2007).²

¶ 3The State dismissed three of the charges, and Fushek requested a jury trial on those remaining: five counts of contributing to the delinquency of a minor, one count of assault, and one count of indecent exposure.The justice court ruled that Fushek is entitled to a jury trial only on the indecent exposure charge.

¶ 4 Fushek filed a special action in the superior court.That court accepted jurisdiction and granted relief, finding that Article 2, Section 24 of the Arizona Constitution entitles Fushek to a jury trial on all counts of the complaint.Citing Derendal v. Griffith,209 Ariz. 416, 425 ¶ 37, 104 P.3d 147, 156(2005), the superior court found that Fushek has a right to trial by jury because sex offender registration is an "additional, severe, direct, uniformly applied statutory consequence[ ] that reflect[s]the legislature's judgment that the offense is serious."

¶ 5The court of appeals reversed.Fushek v. State,215 Ariz. 274, 279 ¶ 18, 159 P.3d 584, 589(App.2007).That court concluded that there is no right to a jury trial under Article 2, Section 24 because the trial judge is not required under § 13-3821 to compel a convicted defendant to register as a sex offender, and the statutory consequence is therefore not "uniformly applied."Fushek,215 Ariz. at 278 ¶¶ 15-16, 159 P.3d at 588.

¶ 6We granted Fushek's petition for review because this case presents a constitutional question of first impression and statewide importance.SeeARCAP 23(c)(3).We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona ConstitutionandA.R.S. § 12-120.24(2003).

II.

¶ 7 The jury trial guarantees of the Arizona Constitution are set forth in Article 2, Sections 23and24.Section 23 provides that "[t]he right of trial by jury shall remain inviolate."Ariz. Const. art. 2, § 23.It guarantees a jury trial if the "statutory offense has a common law antecedent that guaranteed a right to trial by jury at the time of Arizona statehood."Derendal,209 Ariz. at 425 ¶ 36, 104 P.3d at 156.The State conceded below that Fushek is entitled to a jury trial on the indecent exposure charge under Section 23.³Fushek does not argue that assault and contributing to the delinquency of a minor have common law antecedents meeting the Section 23 test.

¶ 8Section 24 guarantees the right to a jury trial "[i]n criminal prosecutions."Ariz. Const. art. 2, § 24.Because the language of Section 24 is virtually identical to that of the Sixth Amendment, which guarantees the right to jury trial "[i]n all criminal prosecutions,"U.S. Const. amend. VI, "we have construed it consistently with the federal constitution to preserve the right to jury trial only for `serious,' as opposed to `petty,' crimes."Derendal,209 Ariz. at 420 ¶ 13, 104 P.3d at 151(citations omitted).

¶ 9 Thus, in Derendal,we looked to the Supreme Court's opinion in Blanton v. City of North Las Vegas,489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550(1989), to guide our analysis of whether an offense is "serious" under Section 24.Blanton stressed that the most relevant criterion for determining whether an offense is serious is "the severity of the maximum authorized penalty."489 U.S. at 541, 109 S.Ct. 1289(quotingBaldwin v. New York,399 U.S. 66, 68, 90 S.Ct. 1886, 26 L.Ed.2d 437(1970)(plurality opinion)).Derendal similarly noted that "we leave to the legislature primary responsibility for determining, through its decision as to the penalty that accompanies a misdemeanor offense, whether the offense qualifies as a `serious offense.'"209 Ariz. at 422 ¶ 21, 104 P.3d at 153.

¶ 10"[W]hen the legislature classifies an offense as a misdemeanor and punishable by no more than six months incarceration, we will presume that offense to be a petty offense that falls outside the jury requirement of Article 2, Section 24 of the Arizona Constitution."Id.;seeBlanton,489 U.S. at 543, 109 S.Ct. 1289(adopting similar presumption).Under that test, the misdemeanor charges against Fushek are presumptively not jury-trial eligible.⁴

¶ 11The Supreme Court noted in Blanton that a legislature's view as to the seriousness of a crime can be reflected not only in the maximum authorized prison term, but also "in the other penalties that it attaches to the offense."489 U.S. at 542, 109 S.Ct. 1289.Thus, in Derendal,we held that an offense carrying a maximum exposure of six months' incarceration is jury-trial eligible if the defendant can "demonstrate that additional grave consequences that attend a misdemeanor conviction reflect a legislative determination that the offense is indeed `serious.'"209 Ariz. at 422 ¶ 21, 104 P.3d at 153.A defendant attempting to rebut the presumption that a crime is petty must establish three things about an additional consequence."First, the penalty must arise directly from statutory Arizona law."Id. at 422¶ 23, 104 P.3d at 153(citingBlanton,489 U.S. at 543 n. 8, 109 S.Ct. 1289)."Second, the consequence must be severe."Id. at 423¶ 24, 104 P.3d at 154."Finally, we will consider only those consequences that apply uniformly to all persons convicted of a particular offense."Id. at 423¶ 25, 104 P.3d at 154.

¶ 12The parties agree that the first prong of this test is satisfied — the potential consequence of sex offender registration arises directly from Arizona statutes, A.R.S. §§ 13-118and13-3821.The parties disagree, however, on the application of the uniformity and severity prongs.

A.

¶ 13The court of appeals concluded that the requirement of uniformity was not met because, even if the State proves sexual motivation beyond a reasonable doubt, the trial court has discretion under § 13-3821(C) whether to order sex offender registration.Fushek,215 Ariz. at 278 ¶ 16, 159 P.3d at 588.The court of appeals believed that only mandatory statutory consequences satisfy the Derendal uniformity requirement.Id.

¶ 14We disagree.The uniformity requirement avoids "the anomalous situation where some persons would be entitled to a jury trial and others would not, although charged with exactly the same substantive Arizona crime."Derendal,209 Ariz. at 423 ¶ 25, 104 P.3d at 154(quotingState ex rel. McDougall v. Strohson,190 Ariz. 120, 125, 945 P.2d 1251, 1256(1997)).Accordingly, we will not consider a consequence arising from a statutory scheme unless the consequence would apply to every person convicted of the crime at the time of conviction.

¶ 15 For example, no jury trial is required for a misdemeanor drug offense simply because a conviction could cause the later denial of an application for a professional license.SeeStoudamire v. Simon,213 Ariz. 296, 299 ¶ 12, 141 P.3d 776, 779(App.2006).Such a consequence would not affect a defendant who never applied for a license.We would thus be unable at the time of trial to determine whether the defendant faced that particular consequence.In contrast, in this casethe State has made a special allegation of sexual motivation.If sexual motivation is found by the trier of fact, the justice court is authorized without more to impose a registration requirement upon conviction.A.R.S. § 13-3821(C);seeFoote v. United States,670 A.2d 366, 372(D.C.1996)(considering only judge-imposed penalties and refusing to consider sanctions "imposed only in hypothetical civil or administrative proceedings" for purposes of the Sixth Amendment jury-trial right).The uniformity requirement is met because every time a special allegation of sexual motivation is filed, the defendant against whom the allegation is made faces possible sex offender registration as part of the sentencing court's disposition of the case.

¶ 16 The fact that the trial judge is not required upon a finding of sexual motivation to impose sex offender registration does not mean that the potential consequence is not uniformly applied.It is enough that all defendants in such a position face the possibility of the consequence.The maximum potential sentence determines whether a defendant has a right to a jury trial, even if the judge retains discretion to impose a lesser penalty.SeeBlanton,489 U.S. at 541-42, 109 S.Ct. 1289;Duncan v. Louisiana,391 U.S. 145, 159-60, 88 S.Ct. 1444, 20 L.Ed.2d 491(1968).

B.

¶ 17 Given its conclusion that the "uniformity" prong of Derendal was not satisfied, the court of appeals did not determine whether sex offender registration is a sufficiently severe consequence to require a jury trial under Article 2, Section 24.⁵Our task is thus to determine whether registration as a sex offender is such a grave consequence that it "reflect[s] a legislative determination that the offense is indeed `serious.'"Derendal,209 Ariz. at 422 ¶ 21, 104 P.3d at 153.

1.

¶ 18The State argues that State v. Noble,171...