State v. Lammie

• Decision Date: 29 March 1990
• Docket Number: No. 1,CA-CR,1
• Citation: 164 Ariz. 377,793 P.2d 134
• Parties: STATE of Arizona, Appellee, v. Michael Patrick LAMMIE, Appellant. 89-216.
• Court: Arizona Court of Appeals

Page 134

793 P.2d 134

164 Ariz. 377

STATE of Arizona, Appellee, v. Michael Patrick LAMMIE, Appellant.

No. 1 CA-CR 89-216.

Court of Appeals of Arizona Division 1, Department A.

March 29, 1990.

Review Denied July 3, 1990. ^*

[164 Ariz. 378] Robert K. Corbin, Atty. Gen. by Jessica G. Funkhouser, Chief Counsel, Criminal Div., and Paul J. McMurdie, Asst. Atty. Gen., Phoenix, for appellee.

Gilcrease & Martin by James C. Martin, Tempe, for appellant.

OPINION

SHELLEY, Judge.

Appellant Michael Patrick Lammie (defendant) was charged with four counts of sexual assault. He later pled guilty to two amended counts of attempted sexual assault, class 3 felonies, pursuant to a plea agreement which advised him that he would be required to register as a sex offender. At sentencing, defendant for the first time stated "that on an attempted crime, that it is inappropriate to require the registration as a sex offender." The trial court ordered him to register as a sex offender. Defendant appealed only from the requirement that he register as a sex offender, pursuant to A.R.S. § 13-3821.

DO THE REGISTRATION REQUIREMENTS OF A.R.S. § 13-3821 ENCOMPASS DEFENDANTS CONVICTED OF "ATTEMPTS"?

Defendant initially argues that the legislative history of A.R.S. § 13-3821 demonstrates that the statute was not intended to include "attempted" sexual offenses. Prior to 1977, the requirement for registration of sex offenders was contained in A.R.S. § 13-1271. In 1977, the legislature renumbered the section as 13-3821. Sections 13-1271 and 13-3821 listed the sexual offenses requiring registration. The list included attempted sexual offenses. Section 13-3821 was repealed in 1978.

In 1983, A.R.S. § 13-3821 was enacted. Section 13-3821 does not list any offenses by name. It requires registration of "[a] person who has been convicted of a violation of chapter 14 or 35.1 of this title." ¹ Juxtaposing the language of former A.R.S. § 13-3821 with the current version, defendant concludes that the legislature's failure to specifically name "attempt" as subject to registration in the current statute "must be considered intentional and the new statute must not be read to cover that which has been deleted from the old one." Defendant points out that as a matter of statutory construction, when a statute is reenacted with material changes, it is presumed that the amendment or reenactment was intended to make those material changes. See generally 73 Am.Jur.2d Statutes § 324 (1974).

Generally, the court will not resort to rules of statutory interpretation unless the meaning of the language of the statute is unclear or ambiguous. State v. Sweet, 143 Ariz. 266, 269, 693 P.2d 921, 924 (1985). In addition, the legislature has abrogated the common law rule that penal statutes are to be strictly construed. State v. Perkins, 144 Ariz. 591, 594, 699 P.2d 364, 367 (1985). Rather, statutes should be interpreted according to the fair meaning of their terms and in furtherance of the policies underlying them. Id. While it is true that when the legislature amends statutory language, it is presumed that it intends to make a change in existing law, Pace v. Hanson, 6 Ariz.App. 88, 92, 430 P.2d 434, 438 (1967), a statutory amendment ought not to be interpreted so broadly as to destroy the entire objective of the statutory scheme. Kadish v. Arizona State Land Dep't, 155 Ariz. 484, 491, 747 P.2d 1183, 1190 (1987). The cases relied on by defendant to support his statutory construction argument are cases which discuss the effect of amendments to existing statutes. However, a court will not treat as amendatory an act which does not purport to be amendatory. 1A Sutherland Statutory Construction § 22.01 (4th ed. 1985) ("[t]he test to determine whether an act is original or amendatory in form is whether it purports to be independent of existing statutory provisions") (emphasis in original). A.R.S. § 13-3821 was simply not an amendatory statute. It was adopted in 1983, following a hiatus of more than five years in which no sex offender registration statute existed in Arizona.

Defendant asserts that an attempted offense is only a preparatory offense in violation of A.R.S. § 13-1001. Therefore, he posits it differs from the substantive offenses set forth in chapter 14 (A.R.S. §§ 13-1401 to 1416). The case law and statutory history with regard to the offense of attempt in Arizona demonstrate the contrary. It is in this context that the court must interpret the legislative intention in passing A.R.S. § 13-3821.

The legislative history with respect to the enactment of A.R.S. § 13-3821 in 1983 is helpful. The minutes of the Committee on Human Resources working on H.B. 2147 state: "Mr. Richard D. Nichols, Deputy County Attorney, Pima County, explained that the bill provided definitions and classifications of certain sexual offenses and required that anyone convicted of any sex-related offense register with the county sheriff." Sexual Offenses: Hearings on H.B. 2147 Before the Subcomm. on Human Resources, 36th Leg., 1st Sess. 3 (March 8, 1983) (emphasis added).

In former A.R.S. § 13-3821, the legislature expressly listed every sex crime requiring registration. In adopting A.R.S. § 13-3821 in 1983, the legislature did not list any specific crime or crimes. We conclude that the legislature, by adopting the broad language of A.R.S. § 13-3821, did not intend to exclude attempted sexual offenses.

Defendant posits that the plain language of A.R.S. § 13-3821 demonstrates its inapplicability to preparatory offenses, such as attempts. This argument has been expressly rejected. See State v. Cory, 156 Ariz. 27, 749 P.2d 936 (App.1988). See also State v. Bouchier, 159 Ariz. 346, 767 P.2d 233 (App.1989); cf. State v. Tellez, 49 Ariz.Adv.Rep. 36 (Dec. 7, 1989). Defendant recognizes the adverse holdings in these cases and asserts that they should be overruled. We decline to do so.

In the case of State v. Cory, Division Two of the Court of Appeals stated:

However, appellant overlooks the fact that he was convicted of a violation of Chapter 14. Pursuant to the plea agreement, appellant agreed to plead guilty to a violation of A.R.S. § 13-1001, as well as §§ 13-1406, 13-1401, 13-3821, 13-701, 13-801 and 13-808. It would have been impossible for appellant to plead guilty to solely a violation of A.R.S. § 13-1001 since that chapter must always be viewed together with a substantive offense. In this case, the Chapter 10 violation must be viewed in conjunction with the Chapter 14 violation. The purpose of the registration requirement for defendants convicted of the substantive offenses certainly is served by the registration of persons convicted of preparatory offenses.

Id., 156 Ariz. at 28, 749 P.2d at 937.

An "attempt" is generally recognized as being part of a completed offense. State v. McCurdy, 15 Ariz.App. 227, 228, 487 P.2d 764, 765 (1971). A.R.S. § 13-110 reads:

A person may be convicted of an attempt to commit a crime, although it appears upon the trial that the crime intended or attempted was perpetrated by the person in pursuance of such an attempt, unless the court, in its discretion, discharges the jury and directs the person to be tried for the crime.

An attempted offense cannot be committed in isolation of the substantive offense.

In the case of State v. Tellez, this court, upon concluding that the crimes of conspiracy and solicitation are separate from the substantive offense, stated:

[T]he state's reliance on Bouchier and Cory, supra, is misplaced. Both those cases dealt with sentencing a defendant for attempting the underlying offense. Attempt differs from solicitation in that attempt retains the same mental state and elements as the underlying offense. Solicitation, however, remains a completely separate crime from the offense solicited.

Id. (emphasis added) (footnote omitted).

Defendant relies on the case of State v. Herrera, 131 Ariz. 59, 638 P.2d 726 (App.1981). In Herrera, the issue was whether a defendant must be sentenced for attempted escape consecutively to any sentence of imprisonment for which defendant was confined at the time of the escape. Herrera is factually inapposite. In that case, the original statute expressly named and provided for mandatory consecutive sentences for both second-degree escape and attempted second-degree escape. When the current criminal code was adopted in 1978, the previous statute was repealed. The new statute retained the mandatory consecutive requirement for second-degree escape by name but omitted attempted second-degree escape therefrom. This deletion indicated an intent of the legislature not to require mandatory consecutive sentences for that offense. Unlike the statute involved in Herrera, A.R.S. § 13-3821 enacted in 1983 did not mention any offense by name.

Even so, this court in Herrera found the statute in question to be susceptible of more than one interpretation. It therefore concluded that it had to construe that penal statute in favor of defendant to the extent necessary to eliminate the ambiguity. This rule of construction was overruled in State v. Rodriguez, 153 Ariz. 182, 186, 735 P.2d 792, 796 (1987), where our supreme court stated:

Traditionally, if a criminal statute was susceptible of different interpretations, we adopted the construction most favorable to the defendant. See, e.g., City of Phoenix v. Lane, 76 Ariz. 240, 243, 263 P.2d 302, 303 (1953), overruled on other grounds, Lindsey v. Duncan, 88 Ariz. 289, 356 P.2d 392 (1960). Now, however, courts are to construe criminal statutes according to 'the fair meaning of their terms to promote justice and effect the objects of the law.' A.R.S. § 13-104; State v. Tramble, 144 Ariz. 48, 51, 695 P.2d 737, 740 (1985).

When a statute is unclear or ambiguous, we must determine and give effect to legislative objects and intent. Calvert v. Farmers Insurance Co., 144 Ariz. 291, 294, 697 P.2d 684, 687 (1985). We determine this by examining the language used, the context of ...