State v. Dean
| Decision Date | 09 December 2010 |
| Docket Number | No. 1 CA-CR 09-0705.,1 CA-CR 09-0705. |
| Citation | 226 Ariz. 47,243 P.3d 1029 |
| Parties | STATE of Arizona, Appellant, v. Robert DEAN, Appellee. |
| Court | Arizona Court of Appeals |
William G. Montgomery, Maricopa County Attorney By Lisa Marie Martin, Deputy County Attorney, Phoenix, Attorneys for Appellant.
James J. Haas, Maricopa County Public Defender By Cory Engle, Deputy Public Defender, Phoenix, Attorneys for Appellee.
¶ 1 Prior to 1994, Arizona Revised Statutes ("A.R.S.") section 13-604.01 (1989) authorized imposing lifetime probation for any person convicted of a dangerous crime against children, which included attempted child molestation. See State v. Peek, 219 Ariz. 182, 183, ¶ 8, 195 P.3d 641, 642 (2008). On January 1, 1994, the legislature amended A.R.S. § 13-902 to set forth specifically all offenses that would qualify for lifetime probation. Peek, 219 Ariz. at 184, ¶ 12, 195 P.3d at 643. The offense of attempted child molestation was no longer listed as an offense qualifying for lifetime probation. Id. As of July 21, 1997, however, A.R.S. § 13-902(E) (Supp.2010) was amended to again include attempted child molestation as an offense for which a defendant could receive lifetime probation. Peek, 219 Ariz. at 184, ¶ 10, 195 P.3d at 643. Nonetheless, during the intervening period between the 1994 and 1997 amendments ("the Peek period"), the State continued to offer and courts continued to impose lifetime probation upon defendants convicted of attempted child molestation. In November, 2008, however, the Arizona Supreme Court held that lifetime probation during the Peek period for convictions of attempted child molestation was unauthorized by statute, and therefore, illegal. Peek, 219 Ariz. at 185, ¶ 20, 195 P.3d at 644. For the following reasons, as modified, we affirm the superior court's order modifying Appellee's period of probation.
¶ 2 The instant appeal is one of many that followed the application of Peek to cases involving imposition of lifetime probation. On August 28, 2001, Robert Dean ("Appellee") was indicted on two counts of child molestation, class two felonies, and two counts of sexual conduct with a minor, also class two felonies. On June 27, 2002, Appellee entered a plea agreement. He pled guilty to amended Count 1, attempted molestation of a child, a class three felony, occurring on or between May 7, 1995, and May 7, 1996. Appellee also pled guilty to amended Count 4, attempted molestation of a child, a class three felony, occurring on or between July 26, 1996, and July 26, 1997. All other charges were dismissed. The court accepted the plea agreement, and on August 30, 2002, the court imposed a sentence of incarceration for one year and two concurrent terms of lifetime probation.
¶ 3 In April of 2009, the Adult Probation Office ("the APO") filed a motion to terminate Appellee's probation based on the holding in Peek. Appellee subsequently filed a "Memorandum in Support of Probation Termination." After a hearing, the court ordered a modification of Appellee's probation under Count 1, decreasing the period of probation from lifetime to five years, and directed the APO to calculate whether the modified probation term had been completed, and if so, ordered that the probation be discharged.1
¶ 4 The offense in Count 1 was alleged to have occurred in a range of dates that fell wholly within the Peek period, and the modification of that period of probation has not been appealed. The court deferred its ruling on whether to similarly modify Count 4 in order to allow the State time to prove that the offense occurred outside of the Peek period, because the range of dates during which the offense in Count 4 may have been committed straddled the end of the Peek period by five days. At the subsequent hearing, the State was unable to present any further evidence to pinpoint whether the offense occurred outside of the Peek period. Accordingly, on September 3, 2009, the court also modified Appellee's probation under Count 4, decreasing the period of probation from lifetime to five years, and directed the APO to calculate whether the modified probation term has been completed, and if so, ordered that the probation be discharged.2 This appeal followed.
¶ 5 The State contends that we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4032(4) (2010). Without deciding whether we have jurisdiction under those statutes, we instead exercise our discretion to accept special action jurisdiction pursuant to A.R.S. § 12-120.21(A)(4) and Arizona Rules of Procedure for Special Actions 8(a). Special action jurisdiction is proper when "an issue is one of first impression of a purely legal question, is of statewide importance, and is likely to arise again...." Vo v. Superior Court In and For County of Maricopa, 172 Ariz. 195, 198, 836 P.2d 408, 411 (App.1992); see also Summerfield v. Superior Court In and For County of Maricopa, 144 Ariz. 467, 469, 698 P.2d 712, 714 (1985) (). In the instant case, the State asks us to resolve an issue of first impression that is a pure legal issue of statewide importance. Further, multiple cases involving the same issues are either presently before us or pending, rendering normal appellate procedures inefficient. These factors lead us to conclude that accepting special action jurisdiction in this case is appropriate.
¶ 6 The State argues that the court erred by failing to review the APO's motion to terminate Appellee's probation pursuant to Rule 32 of the Arizona Rules of Criminal Procedure, and contends that a proper analysis under Rule 32 would have precluded the APO from bringing its motion. Alternatively, the State contends that even if Rule 32 does not apply, the court abused its discretion by terminating Appellee's probation without first making a finding as required under Rule 27.4 of the Arizona Rules of Criminal Procedure. Finally, the State argues that the trial court abused its discretion by finding that lifetime probation was unavailable despite the fact that the offense was alleged to have occurred in a range of dates, a portion of which fell outside of the Peek period.3
¶ 7 We review a trial court's modification of probation for an abuse of discretion. See State v. Contreras, 180 Ariz. 450, 454, 885 P.2d 138, 142 (App.1994).
¶ 8 The State first argues that the only mechanism by which Appellee may attack the legality of lifetime probation is through a petition for post-conviction relief filed pursuant to Rule 32 of the Arizona Rules of Criminal Procedure, and further, that any such claim must be precluded as untimely.
¶ 9 Rule 32 states, in relevant part:
Ariz. R.Crim. P. 32.1 (emphasis added). A petition for review under Rule 32 must be filed "within ninety days after the entry of judgment and sentence," and failure to do so precludes most grounds for relief. Ariz. R.Crim. P. 32.4(a). The purpose of Rule 32 is to consolidate various post-relief procedures "into a single comprehensive remedy ... subject to limited exceptions...." State v. Shrum, 220 Ariz. 115, 118, ¶ 11, 203 P.3d 1175, 1178 (2009).
¶ 10 The trial court did not err in granting relief outside of a Rule 32 proceeding. First, a Rule 32 proceeding may be initiated only by a "person who has been convicted of, or sentenced for, a criminal offense[.]" See Ariz. R.Crim. P. 32.1. In the instant case, relief was sought by the APO, not by Appellee. The APO only has standing to petition the court on behalf of a probationer for relief from a term of probation under Rule 27 of the Arizona Rules of Criminal Procedure. See Ariz. R.Crim. P. 27.3 and 27.4. Nothing in Rule 27 bars the APO from requesting relief from the terms of probation on behalf of probationers, even if the probationers themselves would be precluded from seeking relief under Rule 32. Accordingly, application of Rule 32 in the instant proceeding would have been wholly inappropriate, as the APO was simply acting as authorized by Rule 27.
¶ 11 Further, a request for modification or termination of a period of probation is not generally subject to a Rule 32 review. The trial court that issued the probationary term "retains jurisdiction over the probationary terms and the probationer until the term of probation is successfully completed or until it is revoked." Contreras, 180 Ariz. at 453, 885 P.2d at 141; accord State v. Ray, 209 Ariz. 429, 431, ¶¶ 4-5, 104 P.3d 160, 162 (App.2004). The trial court, "in its discretion ... may modify or add to the conditions or ... may revoke probation in accordance with the rules of criminal procedure at any time before the expiration or termination of the period of probation." A.R.S. § 13-901(C) (Supp 2010); see also A.R.S. § 13-603(B) (2010) (); Ariz. R.Crim. P. 27.3 (). Because the court maintained jurisdiction over Ap...
To continue reading
Request your trial
-
State v. Trujillo, 2 CA-CR 2017-0241
...by virtue of his adjudication as a sexually violent predator."). We find the reasoning of these other courts persuasive. See State v. Dean , 226 Ariz. 47, ¶ 19, 243 P.3d 1029, 1035 (App. 2010) (legal precedent from other jurisdictions informative); cf. State v. Nelson , 214 Ariz. 196, ¶ 11,......
-
State v. Bolivar
...when, under circumstances similar to those in this case, the state's key evidence is the testimony of the alleged victim. See State v. Dean , 226 Ariz. 47, ¶ 19, 243 P.3d 1029 (App. 2010) (legal precedent from other jurisdictions not controlling on this court).¶11 Further, contrary to Boliv......
-
State v. Canez
...¶¶ 19-20, 115 P.3d 601, 607 (2005). We will affirm the trial court's ruling if it is correct for any reason. State v. Dean, 226 Ariz. 47, n.6, 243 P.3d 1029, 1036 n.6 (App. 2010). ¶19 Relevant evidence is evidence with any tendency to make a fact of consequence more or less probable and is ......
-
Cruz v. City of Tucson
... ... 11 Notably, as the public records case progressed, a pattern developed in which the City would repeatedly state it had fully complied with Cruz's request, only to later disclose hundreds of additional documents. During the nearly two-year pendency of that case, ... ...