Shinn v. Ariz. Bd. of Exec. Clemency
| Decision Date | 21 December 2022 |
| Docket Number | CV-21-0275-PR |
| Citation | 86 Arizona Cases Digest 16,521 P.3d 997 |
| Parties | David C. SHINN, Plaintiff/Appellant, v. ARIZONA BOARD OF EXECUTIVE CLEMENCY, Defendant/Appellee. Nevada Freeman, Real Party in Interest. |
| Court | Arizona Supreme Court |
Daniel P. Struck, Nicholas D. Acedo (argued), Jacob B. Lee, Struck Love Bojanowski & Acedo, PLC, Chandler, Attorneys for David C. Shinn
Mark Brnovich, Arizona Attorney General, Dena Benjamin, Assistant Attorney General, Phoenix, Attorneys for Arizona Board of Executive Clemency
Lindsay Ann Herf, Katherine Puzauskas, Karen Singer Smith (argued), Arizona Justice Project, Phoenix; and Michael L. Piccarreta, Piccarreta Davis, Keenan Fidel PC, Tucson, Attorneys for Nevada Freeman
Howard R. Cabot, Austin C. Yost, Perkins Coie LLP, Phoenix; Noel Fidel, Law Office of Noel Fidel, Phoenix; and Randal McDonald, Arizona Justice Project, Phoenix, Attorneys for Amicus Curiae Everett Berry
Timothy J. Eckstein, Travis Hunt, Osborn Maledon PA, Phoenix, Attorneys for Amicus Curiae Rudolph Turner
Colleen Clase, Arizona Voice for Crime Victims, Phoenix, Attorney for Amicus Curiae Arizona Voice for Crime Victims
Timothy J. Myers, Civil Litigation Clinic, Public Interest Law Firm, Phoenix, Attorney for Amici Curiae Marcia Freeman and Carrie Davis
¶1 We consider whether a trial court's nunc pro tunc order modifying a criminal sentence for first degree murder—issued almost thirty years after the sentence was imposed and in the absence of any clerical mistake or error in the record—is subject to collateral attack. In addressing this issue, we delineate courts’ authority to enter orders or judgments nunc pro tunc and also clarify this Court's jurisprudence on the voidability of judgments. We hold that courts lack authority to enter a nunc pro tunc order absent clerical error or mistake in the record, rendering such an order void and subject to collateral attack.
¶2 From 1973 to 1984, Arizona's sentencing statute for first degree murder provided that "[a] person guilty of first degree murder ... shall suffer death or imprisonment in the custody of the department of corrections for life, without the possibility of parole until the completion of the service of twenty-five years ...." A.R.S. § 13-703(A) (1984) (now codified as A.R.S. § 13-751 ). In 1985, the legislature amended the sentencing statute, eliminating the word "parole" and replacing it with the phrase "without possibility of release on any basis." A.R.S. § 13-703(A) (1985). In 1993, the legislature further amended § 13-703(A), adding a "natural life" sentence as another sentencing option. See A.R.S. § 13-703(A) (1993). In that same year, the legislature amended A.R.S. § 41-1604.09 to eliminate parole for all felony offenses committed by adult offenders on or after January 1, 1994. See A.R.S. § 41-1604.09 (1993).
¶3 These amendments effectively limited the sentencing options for an adult defendant convicted of first degree murder committed on or after January 1, 1994, to (1) death; (2) natural life; or (3) life without the possibility of release until either the completion of twenty-five or thirty-five years, depending on the age of the murder victim. See § 41-1604.09 (1993); § 13-703(A) (1993). Thus, a defendant could only be "released" through an executive pardon or commutation of sentence. § 41-1604.09 (1993); § 13-703(A) (1993).
¶4 On October 7, 1994, a jury convicted Nevada Freeman of first degree murder committed on June 16, 1994. Judge John Kelly subsequently sentenced Freeman to "[a] sentence of 25 calendar years without the possibility of release until those years have been served." Freeman's sentencing order reflected the trial court's oral pronouncement, providing that the sentence was "life, without the possibility of release before 25 calendar years have been served."
¶5 On May 7, 2019, the Arizona Department of Corrections Rehabilitation & Reentry ("ADCRR") mistakenly certified Freeman as parole eligible. On July 30, 2019, the Arizona Board of Executive Clemency (the "Board") voted unanimously to grant Freeman parole on house arrest. On October 8, 2019, before Freeman was due to be released, ADCRR discovered its error, rescinded its parole certification, and requested that the Board rescind its order. The Board held a rescission hearing on October 23, 2019, and took the matter under advisement pending this Court's decision in Chaparro v. Shinn , 248 Ariz. 138, 459 P.3d 50 (2020).1
¶6 After we issued the Chaparro opinion, the Board held a second rescission hearing on May 12, 2020. There, ADCRR argued it had erroneously certified Freeman as parole eligible and requested that the Board rescind its grant of parole. Freeman presented a letter from Judge Kelly (since retired), dated April 29, 2020, which stated that he had "inten[ded] that Mr. Freeman be eligible for all avenues of release, including parole, after twenty-five years," not just "through the executive function of commutation of sentence." Freeman also submitted a letter from the Pima County Attorney's Office, dated April 4, 2020, which surmised that the original prosecutor in Freeman's case (now deceased), likely intended that Freeman would be parole eligible. The Board ultimately denied ADCRR's request to rescind Freeman's parole. Despite the Board's decision, ADCRR continued to detain Freeman.
¶7 On June 18, 2020, ADCRR Director David C. Shinn filed a verified complaint for declaratory and special action relief in the Maricopa County Superior Court, seeking a declaration that the Board lacked authority to grant Freeman parole because neither his sentence nor the law authorized it. In response, Freeman raised various counterclaims and moved for a preliminary injunction, requesting immediate reinstatement of his release order. On August 14, 2020, Judge Randall H. Warner denied Freeman's motion for a preliminary injunction, ruling that Freeman was unlikely to prevail on the merits because his sentencing order did not authorize parole.
¶8 On September 3, 2020, Freeman, through counsel, and the State of Arizona, through the Pima County Attorney's Office, entered into a stipulation filed in the Pima County Superior Court regarding Freeman's sentence. The stipulation stated that at the time of Freeman's sentencing in 1994, "all Parties involved—Judge Kelly, the State, and Mr. Freeman—believed and intended that after twenty-five years in prison, Mr. Freeman would be eligible for parole, and, if granted parole by [the Board], [ ] would be released on parole." Thus, the parties requested that Freeman's "sentencing order be corrected to include the word ‘parole’ as a form of release as intended by the Sentencing Court." The State also stipulated that it would not appeal the amended sentencing order. That same day, Judge Deborah Bernini entered a nunc pro tunc order pursuant to Rule 24.4 of the Arizona Rules of Criminal Procedure amending Freeman's criminal sentence, effective on the date of the original sentencing, to: "Life without the Possibility of Parole and any other type of release, before twenty-five calendar years have been served."
¶9 On September 23, 2020, Freeman renewed his claim for injunctive relief in his case before Judge Warner, arguing that his sentence—as amended by the nunc pro tunc order—clearly conferred parole eligibility. On November 4, 2020, Judge Warner granted Freeman's renewed motion, finding that he was likely to prevail on the merits because his sentence, as altered by the nunc pro tunc order, granted parole eligibility. Judge Warner reasoned that Freeman's modified sentence was, like the one in Chaparro , illegally lenient but final because the State did not appeal the nunc pro tunc order. On November 19, 2020, Judge Warner ordered ADCRR to release Freeman on parole. On December 8, 2020, ADCRR released Freeman. Shinn appealed the grant of preliminary injunction.
¶10 The court of appeals affirmed, holding that Judge Warner did not abuse his discretion by relying upon Chaparro to determine that Freeman's sentence, as modified by the nunc pro tunc order, conferred parole eligibility. Shinn v. Arizona Board of Executive Clemency , 2021 WL 4859688, at *3 ¶¶ 13–15 (Ariz. App. Oct. 19, 2021) (mem. decision). The court concluded that under Chaparro , Freeman's modified sentence, even if illegal, was no longer appealable and was, therefore, illegally lenient but final. Id. ¶ 15. The court, relying primarily on State v. Johnson , 113 Ariz. 506, 557 P.2d 1063 (1976), also held that the nunc pro tunc order was procedurally proper because it modified Freeman's sentence to "accurately reflect[ ] the sentence [Judge Kelly] believed he imposed" in 1994. Id. ¶ 13.
¶11 We granted review to consider the scope of a court's nunc pro tunc authority and the voidability of judgments, recurring issues of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution.
¶12 The task before us is to resolve competing views on the scope of a court's nunc pro tunc authority to alter a judgment or order and to clarify our courts’ jurisprudence on the jurisdictional significance of our post-trial motion procedural rules.
¶13 We review the trial court's decision to grant a preliminary injunction for an abuse of discretion. Valley Med. Specialists v. Farber , 194 Ariz. 363, 366 ¶ 9, 982 P.2d 1277, 1280 (1999). "An error of law constitutes an abuse of discretion," State v. Bernstein , 237 Ariz. 226, 228 ¶ 9, 349 P.3d 200, 202 (2015), as does an order unsupported by the record, Boyle v. Boyle , 231 Ariz. 63, 65 ¶ 8, 290 P.3d 456, 458 (App. 2012).
¶14 To grant a preliminary injunction the trial court must find (1) a strong likelihood of success on the merits; (2) a possibility of irreparable injury to the requesting party irremediable without...
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