State v. Bomar

• Citation: 199 Ariz. 472,19 P.3d 613
• Decision Date: 16 February 2001
• Docket Number: No. 1 CA-CR 99-0792.,1 CA-CR 99-0792.
• Parties: STATE of Arizona, Appellee, v. Anthony Gary BOMAR, Appellant.
• Court: Court of Appeals of Arizona

19 P.3d 613

199 Ariz. 472

STATE of Arizona, Appellee, v. Anthony Gary BOMAR, Appellant.

No. -0792.

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

February 16, 2001.

As Amended February 20, 2001.

Redesignated as Opinion and Publication Ordered February 22, 2001.

Maricopa County Public Defender by Anna M. Unterberger, Deputy Public Defender, Phoenix, Attorneys for Appellant.

Janet A. Napolitano, Arizona Attorney General by Randall M. Howe, Chief Counsel, Criminal Appeals Section and Consuelo M. Ohanesian, Assistant Attorney General, Phoenix, Attorneys for Appellee.

OPINION

ACKERMAN, Judge.

¶ 1 The sole issue on appeal is whether the trial court erred in denying Anthony Gary Bomar's request for pre-sentence incarceration credit under Arizona Revised Statutes Annotated ("A.R.S.") section 13-709(B) (1989). Because we conclude that the presentence incarceration credit provisions of A.R.S. section 13-709(B) do not apply to commitment orders, we find no error and affirm the sentence.

BACKGROUND

¶ 2 Bomar was charged with one count of aggravated assault, a class 3 dangerous felony, pursuant to A.R.S. section 13-1204(A)(2) (Supp.1996), for a crime alleged to have occurred on July 10, 1997. The State later withdrew the allegation of dangerousness, and Bomar waived his right to a jury trial and submitted his case to the trial court. The trial court found Bomar guilty-except-insane.

¶ 3 At sentencing, Bomar requested that he receive credit for the 741 days he had spent in custody prior to sentencing. The court denied the request and committed Bomar to a secure mental health facility under the jurisdiction of the Department of Health Services for the presumptive term of three and one-half years, in accordance with the provisions of A.R.S. section 13-3994 (Supp. 2000-2001), with no pre-sentence incarceration credit.

¶ 4 Bomar filed this appeal. We have jurisdiction pursuant to article 6, section 9, of the Arizona Constitution and A.R.S. sections 12-120.21(A)(1) (1992), 13-4031 (1989), and 13-4033(A) (Supp.2000-2001).

DISCUSSION

¶ 5 Bomar contends that, pursuant to A.R.S. section 13-709(B), he is entitled to credit for pre-sentence incarceration against the period of his commitment. He asserts three grounds in support of his claim: (1) that the statutory scheme requires that he receive pre-sentence incarceration credit; (2) that failure to grant him pre-sentence incarceration credit violates his rights to equal protection and due process; and (3) that the American Bar Association ("ABA") Criminal Justice Mental Health Standards (1994) indicate that he should receive the credit as a matter of fairness.¹ Because these issues involve statutory construction and constitutional law, we review the trial court's rulings de novo. See Ramirez v. Health Partners of S. Ariz., 193 Ariz. 325, 327-28, ¶ 6, 972 P.2d 658, 660-61 (App.1998).

I. Arizona Law

A. The Statutes

¶ 6 In interpreting statutes, our primary goal is to determine and give effect to the legislative intent. See State v. Korzep, 165 Ariz. 490, 493, 799 P.2d 831, 834 (1990). "We look primarily to the language of the statute itself and give effect to the statutory terms in accordance with their commonly accepted meanings." State v. Riggs, 189 Ariz. 327, 333, 942 P.2d 1159, 1165 (1997). "When the statute's language is not clear, we determine legislative intent by reading the statute as a whole, giving meaningful operation to all of its provisions, and by considering factors such as the statute's context, subject matter, historical background, effects and consequences, and spirit and purpose." Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996).

¶ 7 Bomar relies on A.R.S. section 13-709(B), which governs credit for pre-sentence incarceration credit:

All time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense shall be credited against the term of imprisonment otherwise provided for by this chapter.

(Emphasis added.) Nothing in the plain language of the statute allows credit for presentence incarceration against a period of hospital commitment. By its terms, pre-sentence incarceration credit applies to a term of "imprisonment" resulting from a criminal conviction "otherwise provided for by this chapter." Id.; see also A.R.S. §§ 13-701 to -710 (1989 & Supp.2000).

¶ 8 A finding of guilty-except-insane is not a criminal conviction, see State v. Heartfield, 196 Ariz. 407, 408-09, ¶ 6, 998 P.2d 1080, 1081-82 (App.2000); see also A.R.S. § 13-502(E) (Supp.2000-2001), nor has Bomar been sentenced to a term of imprisonment "otherwise provided for by [chapter 7 of title 13]." Instead, he has been committed to a mental health facility for treatment pursuant to A.R.S. section 13-3994. Case law and statutes have long distinguished between conviction and commitment. For example, in determining the presumptive commitment term, courts "shall not consider the sentence enhancements for prior convictions." A.R.S. § 13-502(D) (Supp. 2000-2001). Similarly, a guilty-except-insane verdict may not be used as a prior conviction to enhance subsequent convictions. Id. § 13-502(E). In Heartfield, we specifically held that because a guilty-exceptinsane verdict is not a conviction, a defendant so found cannot be required to pay restitution. 196 Ariz. at 408, ¶ 6, 410, ¶¶ 9-10, 998 P.2d at 1081, 1083 (citing A.R.S. §§ 13-804(A) (Supp. 2000), 13-603 (Supp.2000)). Bomar cannot seek to reap the benefit of a conviction-entitlement to pre-sentence incarceration credit-but avoid the detriments-future sentencing enhancement, payment of restitution, and imprisonment.

¶ 9 Upon a determination that a defendant has committed a criminal act but is insane, the statutes pursuant to which Bomar was adjudicated permit the imposition of rehabilitative alternatives more humane than incarceration. See State v. Ovind, 186 Ariz. 475, 477, 924 P.2d 479, 481 (App.1996); see also A.R.S. § 13-709(B). The period of commitment pursuant to A.R.S. section 13-3994(A) serves the express purpose of treatment, not punishment. Moreover, treatment occurs under the jurisdiction of the Department of Health Services, not the Department of Corrections. See Ovind, 186 Ariz. at 479, 924 P.2d at 483. For all these reasons, although they share the feature of involuntariness, commitment and incarceration are not the same. Because Bomar has not been sentenced to imprisonment, we find no merit to his argument that A.R.S. section 13-709(B) requires pre-sentence incarceration credit against his term of hospital commitment.

¶ 10 This conclusion is reinforced by the policy and language of the relevant commitment statutes. Those statutes provide for the commitment of persons found guilty-except-insane for the period a defendant could have received for the crime involved. See A.R.S. § 13-502(D). If, as here, the criminal act involved the threat of death or serious physical injury to another, the person is placed under the jurisdiction of the psychiatric security review board for a period equal to that of the presumptive criminal sentence. See id. The length of actual commitment, however, need not last as long as the analogous prison sentence. The law provides for hearings and potential early release:

If the person proves by clear and convincing evidence that the person no longer suffers from a mental disease or defect and is not dangerous, the psychiatric security review board shall order the person's release.

A.R.S. § 13-3994(F)(2); see also Ovind, 186 Ariz. at 479, 924 P.2d at 483 ("The statute does not subject the Defendant to confinement for any term of years" because she "may be released conditionally or unconditionally when the board is persuaded that she is free of mental illness and no longer a threat to society.").

¶ 11 The period of commitment may also exceed the time provided by the sentencing statute. If the person is still suffering from a mental disease or defect when the time provided by the sentencing statute expires, the board may refer the person to the county attorney for civil commitment proceedings:

At least fifteen days before a hearing is scheduled to consider a person's release, or before the expiration of the board's jurisdiction over the person, the state mental health facility or supervising agency shall submit to the psychiatric security review board a report on the person's mental health. The psychiatric security review board shall determine whether to release the person or to order the county attorney to institute civil commitment proceedings pursuant to title 36.

A.R.S. § 13-3994(I).

¶ 12 Thus, the term of a commitment pursuant to A.R.S. section 13-3994 is uncertain: It could be less than the time provided by the sentencing statute or, if the State seeks a civil commitment near the end of the commitment term, it could be more. The need for treatment entirely determines the length of commitment. Commitment ends when the psychiatric security review board finds that the person no longer suffers from a mental disease or defect and is no longer dangerous. A.R.S. § 13-3994(F). Because society's goals are treatment and cure, the concept of pre-sentence incarceration credit does not fit the context of section 13-3994. The legislature obviously did not intend to release a person before treatment is successfully completed. Indeed, the legislature has expressly forbidden any release before the person's mental condition no longer renders him a danger to himself or others:

If the psychiatric security review board finds that the person still suffers from a mental disease or defect and is dangerous, the person shall remain committed at the secure state mental health facility.

A.R.S. § 13-3994(F)(1). Thus the statutory scheme reflects the legislature's intent that the length of commitment terms relate to a person's rehabilitation. For that reason, the legislature did not intend that pre-sentence incarceration credits apply to...