McDonald v. Thomas

• Decision Date: 02 November 2000
• Docket Number: No. 1 CA-HC 00-0001.,1 CA-HC 00-0001.
• Citation: 12 P.3d 1194,198 Ariz. 590
• Parties: Kevin McDONALD, Plaintiff-Appellant, v. Melvin THOMAS, Complex Warden, Defendant-Appellee.
• Court: Arizona Court of Appeals

12 P.3d 1194

198 Ariz. 590

Kevin McDONALD, Plaintiff-Appellant, v. Melvin THOMAS, Complex Warden, Defendant-Appellee.

No. -0001.

Court of Appeals of Arizona, Division 1, Department E.

November 2, 2000.

Janet A. Napolitano, Arizona Attorney General by Thomas I. McClory, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Kevin McDonald, Florence, In Propria Persona.

OPINION

BERCH, Presiding Judge.

¶ 1 Kevin McDonald ("Appellant") appeals the trial court's denial of his petition for habeas corpus. Appellant requested that the trial court declare invalid former Governor Symington's denial of his request for commutation of his life sentence and order his release from prison. For the following reasons, we affirm the trial court's ruling.

FACTS

¶ 2 Appellant is serving a life sentence with no possibility of parole for twenty-five years. Pursuant to statutory authority, the Arizona Board of Executive Clemency ("the Board") conducted a disproportionality review hearing on May 10, 1995, and voted unanimously to recommend to the governor that Appellant's sentence be reduced or "commuted" from life to 8.5 years.

¶ 3 The Disproportionality Review Act provided that if the Board "unanimously recommend[s] commutation and the governor fails to act on that recommendation within ninety days after receiving the recommendation, the recommendation for commutation automatically becomes effective." 1994 Ariz. Sess. Laws, ch. 365, § 1(G) (emphasis added).¹ The Board's recommendation for commutation of Appellant's sentence was delivered to the governor's office on August 17, 1995. On November 15, 1995, the ninetieth day, the governor's office notified the Board that the governor had denied its recommendation to commute Appellant's sentence. On November 16, 1995, Appellant received a letter from the Board's chairman advising Appellant that the governor had decided not to commute his sentence.

¶ 4 Appellant filed a petition for writ of habeas corpus. On October 13, 1999, after conducting a telephonic hearing, the trial court issued an order dismissing the petition. Appellant filed a timely appeal, over which we have jurisdiction pursuant to Arizona Revised Statutes Annotated ("A.R.S.") section 12-2101(L) (1994).

DISCUSSION

¶ 5 Appellant alleges that the trial court abused its discretion by denying his habeas corpus petition. As Appellant correctly notes, the decision whether to issue a writ of habeas corpus is entrusted to the sound discretion of the trial court, and we will not disturb the trial court's decision unless we see an abuse of that discretion. Salstrom v. State, 148 Ariz. 382, 384, 714 P.2d 875, 877 (App.1986).

A. Did the governor deny the recommendation in a timely manner?

1. Date of Response

¶ 6 Appellant claims that he is entitled to release from prison because the governor did not deny commutation of his sentence within ninety days after the Board held its May 10, 1995 hearing. He also claims that the denial occurred more than ninety days after the Board notified him of its recommendation on May 12, 1995, and more than ninety days after the letter recommending commutation, which was dated August 15, 1995, was sent from the Board to the governor.

¶ 7 Appellant, however, misidentifies the legally operative date that commences the ninety-day period. By statute, the period is calculated from the date the governor receives the Board's recommendation: August 17, 1995. See 1994 Ariz. Sess. Laws, ch. 365, § 1(G) (governor must act "within ninety days after receiving the recommendation"). Commutation of Appellant's sentence was denied on November 15, 1995, the ninetieth day after the governor's office received the Board's recommendation. See A.R.S. § 1-243(A) (1995). It was therefore timely.

¶ 8 The date of receipt is established by the affidavit of the Board employee, E.M., who hand-delivered the recommendation to the governor's office on August 17, 1995, and the document titled "Receipt," which is dated August 17, 1995. Appellant's controverting evidence consisted of an affidavit from his mother alleging that someone who answered the telephone at the governor's office confirmed on more than one occasion that the recommendation had been received earlier, although the date of receipt and the identity of the speaker are not specified. However, a statement from a person other than the affiant offered for the truth of the matter asserted constitutes hearsay unless the proponent of a party admission can show that the statement (1) was made by the opposing party's representative or is a statement with which the party has manifested agreement, (2) was made during the existence of the relationship, and (3) concerned a matter within the scope of the speaker's employment. Ariz.R.Evid. 801(d)(2); Diaz v. Magma Copper Co., 190 Ariz. 544, 551-52, 950 P.2d 1165, 1172-73 (App.1997); Shuck v. Texaco Ref. & Mktg., Inc., 178 Ariz. 295, 298, 872 P.2d 1247, 1250 (App.1994). The record does not reflect that the statements by the unidentified office worker to whom Appellant's mother allegedly spoke were within the scope of the unidentified person's duties or that the governor's office had manifested agreement with them. They are therefore not judicially cognizable. See Diaz, 190 Ariz. at 551-52,

950 P.2d at 1172-73; Shuck, 178 Ariz. at 298,

872 P.2d at 1250. By ruling in the State's favor, the trial court must implicitly have found the State's evidence more persuasive, and we defer to that finding. See Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13, 972 P.2d 676, 680 (App.1998) (requiring deference to trial court's determination regarding weight to give to conflicting evidence).

2. Time of Response

¶ 9 Appellant next maintains that, because the receipt and Board recommendation documents lack a time stamp in addition to the date stamp, E.M.'s affidavit provides insufficient documentation regarding precisely when on August 17 the recommendation was received by the governor's office. We conclude, as did the trial court, that the signed and dated "Receipt" and recommendation, together with the signed affidavit, provide sufficient evidence of the date of receipt, which answers the question before us. In Arizona, the time in which an act is required to be done is "computed by excluding the first day and including the last day," A.R.S. § 1-243(A); the hour of delivery or receipt is irrelevant. Thus, the governor was authorized to act on the Board's recommendation until the end of the full day on November 15, no matter what time on August 17 the recommendation was received.

3. Date of Receipt by Governor's Office

¶ 10 Appellant notes that the August 17, 1995 date typed on the "Receipt" shows the date typed by the sending agency rather than the receiving agency. From this he concludes that it does not show the date the document was received by the governor's office. Even if Appellant were correct, however, his conclusion would merely mean that the document might have been received after August 17, 1995. Such a conclusion fails to further Appellant's position.

¶ 11 Finally on this point, Appellant contends that the Board failed to forward its recommendation to the governor in a timely manner. We note, however, that the Act did not require the Board to send its recommendation within a specified number of days following the hearing. The only requirement imposed to ensure that the Board would act expeditiously was that the Board "complete all disproportionality reviews by December 31, 1995." 1994 Ariz. Sess. Laws, ch. 365, § 1(I). The Board met the legislative deadline with more than four months to spare. We therefore find no merit to this claim.

B. Is denial of clemency an "official act"?

¶ 12 Appellant contends that the letter and "Receipt" by which his commutation was denied were ineffective to do so because they were not signed by the governor, but instead were signed by a representative of the governor.² Appellant maintains that the denial of commutation constitutes an "official act," requiring the governor's signature, the secretary of state's attestation, and the affixation of the seal of the State of Arizona to the document in order to authenticate the act and make it valid. See A.R.S. §§ 41-101(B) (1999), -121(2) and (4) (Supp.1999-2000). He reasons that without these, the denial was void and he must be released. We must therefore determine whether the denial of a clemency request is an official act requiring the statutory formalities.

¶ 13 Along with many other powers, the governor has the power to grant commutation and other forms of clemency. Ariz. Const. art. 5, § 5; A.R.S. § 31-443 (1996). Arizona's clemency system is unique, however, in that it delegates the majority of the decision-making power to the Board of Executive Clemency. A.R.S. § 31-402 (Supp. 1999-2000). As one article described the system, "The functional consequence of this clemency legal structure is to largely remove the Governor from the dynamics at work in a clemency effort, while still affording the Governor the power to ultimately decide on an alternative recommendation of clemency." David Kader and Keith Olbricht, The Quality of Mercy: A History of Clemency in Arizona, The Defender 15 (July 2000).³ ¶ 14 In 1994, the legislature passed an Act authorizing the Board of Executive Clemency to review sentences of certain inmates to ensure that their sentences were not disproportionate to the sentences of others similarly situated. 1994 Ariz. Sess. Laws, ch. 365, §§ 1, 3 (effective July 17, 1994 through June 30, 1996). During the eighteen months that disproportionality reviews occurred, the Board considered the sentences of more than 1500 inmates, recommending commutation of the sentences of 216, including Appellant. See Kader, supra at 16 (citing 1993-95 Annual Reports of the Arizona Board of Executive Clemency). Of those 216, then-Governor Symington commuted the sentences of sixteen inmates. Id.

¶ 15 Appellant maintains that each grant or...