State v. Henry

• Decision Date: 23 February 2010
• Docket Number: No. 2 CA-CR 2009-0035.,2 CA-CR 2009-0035.
• Citation: 228 P.3d 900
• Parties: The STATE of Arizona, Appellee, v. David Charles HENRY, Appellant.
• Court: Arizona Court of Appeals

228 P.3d 900

The STATE of Arizona, Appellee, v. David Charles HENRY, Appellant.

No. 2 CA-CR 2009-0035.

Court of Appeals of Arizona, Division 2, Department B.

February 23, 2010.

Terry Goddard, Arizona Attorney General By Kent E. Cattani and Alan L. Amann, Tucson, Attorneys for Appellee.

Barton & Storts, P.C. By Brick P. Storts, III, and William Perry, Tucson, Attorneys for Appellant.

OPINION

ECKERSTROM, Presiding Judge.

¶ 1 Following a bench trial, the court convicted appellant David Henry of one count of failing to obtain an identification card or driver's license as a person previously convicted of a sex offense. The court then sentenced Henry to an enhanced term of 3.75 years' imprisonment and ordered him to register as a sex offender. On appeal, Henry argues the court's refusal to dismiss the indictment against him violated principles of double jeopardy and resulted in an ex post facto application of the law. He also contends the court denied him his right to a speedy trial.¹ We affirm his conviction and sentence for the reasons set forth below.

Factual and Procedural Background

¶ 2 In 1974, Henry was convicted of several felony offenses, one of which was first-degree armed rape committed on May 25, 1974, in violation of former A.R.S. §§ 13-611 and 13-614(C). See 1967 Ariz. Sess. Laws, ch. 62, § 9 (former § 13-614(C)); 1962 Ariz. Sess. Laws, ch. 52, § 1 (former § 13-611(A)). On September 8, 2007, a Tucson police officer requested identification from Henry in the course of a traffic stop. Henry could not produce any identification at the time, and certified documents from the Motor Vehicle Division of the Arizona Department of Transportation revealed his last identification card had been issued on October 5, 2001.²

¶ 3 Henry subsequently was arrested and charged with three offenses relating to his status as a sex offender: failure to give notice of a change of address or name on September 8, 2007 (count one); failure to obtain a "nonoperating identification license or a driver license" on September 8, 2007, in violation of A.R.S. §§ 13-3821 and 13-3824 (count two);³ and failure to give notice of a change of address or name between February 14 and February 26, 2008 (count three).⁴ In response, Henry filed a motion to dismiss the indictment on grounds that the charges constituted double jeopardy and that, as applied to him, Arizona's sex offender registration and notification statutes, A.R.S. §§ 13-3821 and 13-3825, were ex post facto laws violating the United States and Arizona Constitutions. The trial court denied the motion. Henry then waived his right to a jury trial and represented himself with the assistance of advisory counsel.

¶ 4 The trial court dismissed count one of the indictment on the state's motion before trial. It entered a judgment of acquittal on count three and found Henry guilty of count two.⁵ After determining Henry had been previously convicted of two felonies, the court sentenced him to a term of 3.75 years in prison and, over his objection, ordered him to register as a sex offender.

Ex Post Facto

¶ 5 As he did below, Henry argues his 1974 rape conviction neither subjected him to the laws he was charged with violating, A.R.S. §§ 13-3821 and 13-3824, nor exposed him to the community notification requirements of A.R.S. § 13-3825. Consequently, he contends his present conviction and required registration as a sex offender violated his rights, guaranteed by both the federal and state constitutions, to be free from ex post facto laws.⁶ We review these legal issues de novo. See State v. Kuntz, 209 Ariz. 276, ¶ 5, 100 P.3d 26, 28 (App.2004) ("Whether the trial court properly applied § 13-3821(A) is a question of law that we review de novo."); State ex rel. Romley v. Rayes, 206 Ariz. 58, ¶ 6, 75 P.3d 148, 150 (App.2003) (ex post facto claims reviewed de novo).

¶ 6 Ex post facto laws are prohibited by both article I, § 10, cl. 1 of the United States Constitution⁷ and article II, § 25 of the Arizona Constitution.⁸ Because the language of these provisions is materially the same, we generally interpret them as having the same scope, and we typically follow federal precedent in the area. See State v. Noble, 171 Ariz. 171, 173, 829 P.2d 1217, 1219 (1992).

¶ 7 An ex post facto law is defined exclusively as a law falling into one of the four categories delineated in Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798). See Carmell v. Texas, 529 U.S. 513, 537-39, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000); Collins v. Youngblood, 497 U.S. 37, 41-42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990); Noble, 171 Ariz. at 173-74, 829 P.2d at 1219-20. As Calder explained, an ex post facto law is:

1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

3 U.S. at 390. In Noble, our supreme court concluded that § 13-3821, which requires sex offenders to register with law enforcement agencies or face penalties for failing to do so, "violates the ex post facto clause only if it is a `law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed.'" 171 Ariz. at 174, 829 P.2d at 1220, quoting Calder, 3 U.S. at 390. We similarly address only the third Calder category in the present case. See id.

¶ 8 To determine whether the application of sex offender registration and notification laws inflicts a greater punishment than was provided by law at the time of an offense, the ultimate question to be decided is whether the subsequent laws are punitive or regulatory in nature. See Noble, 171 Ariz. at 175, 829 P.2d at 1221; Ariz. Dep't of Pub. Safety v. Superior Court (Falcone), 190 Ariz. 490, 494, 949 P.2d 983, 987 (App.1997). Whereas a punitive law cannot be applied retroactively, a regulatory law will withstand an ex post facto challenge. Falcone, 190 Ariz. at 494, 949 P.2d at 987.

¶ 9 When evaluating the punitive or regulatory character of a law, a court first looks to the legislative intent behind it. See Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); Noble, 171 Ariz. at 175, 829 P.2d at 1221; Falcone, 190 Ariz. at 494, 949 P.2d at 987. If the legislature intended a nonpunitive purpose, a court must then inquire "`whether the statutory scheme is so punitive either in purpose or effect as to negate that intention.'" Noble, 171 Ariz. at 175, 829 P.2d at 1221, quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980); accord Smith, 538 U.S. at 92, 123 S.Ct. 1140; Falcone, 190 Ariz. at 495, 949 P.2d at 988. A person challenging a purportedly nonpunitive law on ex post facto grounds must demonstrate by "`the clearest proof'" that the law is in fact punitive. Smith, 538 U.S. at 92, 123 S.Ct. 1140, quoting Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997); accord Falcone, 190 Ariz. at 496, 949 P.2d at 989.

Statutes

¶ 10 Arizona's first sex offender registration statute was enacted in 1951. See 1951 Ariz. Sess. Laws, ch. 105, § 1; Fushek v. State, 218 Ariz. 285, n. 2, 183 P.3d 536, 538 n. 2 (2008). Under what first was codified as § 43-6117 of the 1939 Arizona Code (Supp. 1952), a person convicted of an enumerated sex offense such as rape was required to register with the sheriff of his county of residence, have his photograph taken, be fingerprinted, and provide a written statement required by the state's bureau of criminal identification. These materials were only shared with law enforcement officers, and the failure to register or update one's residential information after moving was a misdemeanor. 1951 Ariz. Sess. Laws, ch. 105, § 1.

¶ 11 When the Arizona Code was revised in 1956, former § 43-6117 was separated into four sections. See 1956 Ariz. Sess. Laws, 3d Spec. Sess., ch. 3, § 1. Sex offender registration in general was required by A.R.S. § 13-1271; the requirement that sex offenders inform the sheriff of an address change was codified in A.R.S. § 13-1272; public access to a sex offender's information was prohibited by A.R.S. § 13-1273; and any violation of the registration statutes was punishable as a misdemeanor pursuant to A.R.S. § 13-1274.⁹

¶ 12 In 1977, the legislature again renumbered the principal sex offender registration statute, former § 13-1271, as A.R.S. § 13-3821, making minor changes to it in the process. See 1977 Ariz. Sess. Laws, ch. 142, § 115. The legislature also specified that a violation of registration requirements was punishable as a class two misdemeanor. See 1977 Ariz. Sess. Laws, ch. 142, § 116 (amending former § 13-1274 and renumbering it as A.R.S. § 13-3824). Lawmakers then repealed § 13-3821 in 1978, with the result that our state was without a registration statute for over five years.¹⁰ See 1978 Ariz. Sess. Laws, ch. 201, § 242; State v. Lammie, 164 Ariz. 377, 378, 793 P.2d 134, 135 (App.1990), disagreed with on other grounds by State v. Peek, 219 Ariz. 182, ¶¶ 15-17, 195 P.3d 641, 644 (2008). In 1983, the legislature enacted the modern sex offender registration statute, A.R.S. § 13-3821, which at its inception was substantially similar to its predecessor. See 1983 Ariz. Sess. Laws, ch. 202, § 13. Since that time, "the registration and monitoring statutes, A.R.S. §§ 13-3821 to 13-3829, have undergone several changes." Fushek, 218 Ariz. 285, n. 2, 183 P.3d at 538 n. 2.

¶ 13 For instance, in 1985 the legislature began to loosen restrictions on who could access a sex offender's information, permitting disclosure to others than...