State v. Noble

• Decision Date: 13 December 1990
• Docket Number: CA-CR,No. 1,1
• Citation: 167 Ariz. 440,808 P.2d 325
• Parties: STATE of Arizona, Appellee, v. Michael Brown NOBLE, Appellant. 88-1281.
• Court: Arizona Court of Appeals

Page 325

808 P.2d 325

167 Ariz. 440

STATE of Arizona, Appellee, v. Michael Brown NOBLE, Appellant.

No. 1 CA-CR 88-1281.

Court of Appeals of Arizona Division 1, Department C.

Dec. 13, 1990.

Review Granted April 23, 1991.

[167 Ariz. 441] Robert K. Corbin, Atty. Gen. by Ronald L. Crismon, Acting Chief Counsel, Criminal Div., and R. Wayne Ford, Asst. Atty. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by Carol A. Carrigan, Deputy Public Defender, Phoenix, for appellant.

OPINION

FIDEL, Presiding Judge.

We address one issue in this appeal: Does application of the sex offender registration statute to defendant violate the ex post facto provision of the Arizona Constitution, art. 2, § 25?

PROCEDURAL BACKGROUND

Appellant Michael Brown Noble (defendant) pled guilty in 1988 to child molestation and sexual conduct with a minor, both class two nondangerous, nonrepetitive felonies. The trial court accepted the plea and sentenced defendant to consecutive, aggravated terms of eleven years on the first count and twelve years on the second. The court also ordered defendant to register as a sex offender pursuant to Ariz.Rev.Stat.Ann. § 13-3821 (1985). ¹ Defendant timely appealed.

Arizona's earlier sex offender registration provision was repealed by Laws 1978, ch. 201, § 242, effective October 1, 1978. The defendant pled guilty to acts occurring in 1981 and 1982. The sex offender provision was reenacted by Laws 1983, ch. 202, § 13, now Ariz.Rev.Stat.Ann. § 13-3821. Thus, when defendant committed his offenses, no Arizona law required sex offender registration. Defendant argues that application of the present registration requirement to crimes that predated its enactment violates the ex post facto clause of the Arizona Constitution. We agree.

DISCUSSION

The Arizona constitutional prohibition against ex post facto laws is similar to that found in the U.S. Constitution. State v. Yellowmexican, 142 Ariz. 205, 207, 688 P.2d 1097, 1099 (App.), adopted and approved, 142 Ariz. 91, 688 P.2d 983 (1984). Article 2, § 25 of the Arizona Constitution provides: "No bill of attainder, ex-post-facto law, or law impairing the obligation of a contract shall ever be enacted." Article 1, § 10 of the U.S. Constitution provides: "No state shall ... pass any Bill of Attainder, ex post facto Law or Law impairing the Obligation of Contracts...."

When a clause of our state constitution varies significantly from the analogous clause of the U.S. Constitution, we are obliged to consider the meaning of the unique language that our framers chose. See Feldman & Abney, The Double Security of Federalism: Protecting Individual Liberty Under the Arizona Constitution, 20 Ariz.St.L.J. 115, 145 (1988). The federal and Arizona ex post facto prohibitions do not differ significantly, however, and Arizona courts have consistently employed a common analysis for both provisions. State v. Cocio, 147 Ariz. 277, 284, 709 P.2d 1336, 1343 (1985), State v. Valenzuela, 144 Ariz. 43, 47, 695 P.2d 732, 736 (1985). Thus, though we approach the present issue under the Arizona Constitution, our analysis is informed by cases that have interpreted the similar language of the U.S. Constitution.

The federal ex post facto clause applies only to laws imposing criminal penalties and does not apply to laws that impose civil, regulatory penalties. See United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980). The clause operates to invalidate the retroactive application of a law that makes more burdensome the punishment for a crime. Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925)). From the federal cases, we thus derive a three-step ex post facto analysis (1) whether the law is retroactive as applied to the defendant; (2) whether application of the law makes punishment for a crime more burdensome; and (3) whether the law imposes a criminal penalty.

A. Retroactivity

The state argues that there is no retroactive application in this case. We disagree. Although the state compares this case to State v. Yellowmexican, 142 Ariz. 205, 688 P.2d 1097 (App.1984); State v. Cocio, 147 Ariz. 277, 709 P.2d 1336 (1985); and Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986), those cases are significantly different. While each of them concerned the impact of a recidivist sentence enhancement statute upon defendants whose prior (enhancing) convictions occurred before the statute's effective date, in each case the defendant's current offense was committed after the statute's effective date. As the court in Yellowmexican explained: "The punishment imposed under [the sentence enhancement statute] is based on the [current conviction]. It does not increase the penalty for the prior convictions. In fact, except for the [current] conviction, there would be no punishment beyond that originally imposed for the first [offenses]." 142 Ariz. at 207, 688 P.2d at 1099.

Here, by contrast, defendant was subjected to the registration statute for crimes that he committed before that statute's effective date. The retroactivity requirement of ex post facto analysis is met.

B. Increased Burden of Punishment

The second requirement is that the statute make more burdensome the punishment for a crime. This, the Supreme Court has held, comports with the original understanding of the ex post facto clause. Collins v. Youngblood, 110 S.Ct. at 2719 (citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) (opinion of Chase, J.)).

We examine in part C of this opinion whether § 13-3821 imposes a criminal penalty. It is clear, however, that the statute makes more burdensome the sentences of those to whom it applies.

First, anyone sentenced under § 13-3821 must register as a sex offender and carry that "badge of infamy." Cf. Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971) (posting of name of person who was forbidden to consume alcoholic beverages for one year because of "excessive drinking" constituted a "badge of infamy" and an "official branding" that triggered procedural due process protections); see also In re Reed, 33 Cal.3d 914, 920, 663 P.2d 216, 218, 191 Cal.Rptr. 658, 660 (1983) (quoting In re Birch, 10 Cal.3d 314, 515 P.2d 12, 110 Cal.Rptr. 212 (1973)) (sex offender registrants carry an "ignominious badge"). This disability has no expiration date; the registration requirement of § 13-3821 attaches for a lifetime. See State v. Lammie, 164 Ariz. 377, 793 P.2d 134 (App.1990).

We recognize that registration documents filed under § 3821 are not disseminated to the general public; a registrant's statement, photograph, and fingerprints are available only to law enforcement personnel and selected others. Ariz.Rev.Stat.Ann. § 13-3823. These others, however, include governmental licensing and regulatory agencies for use in evaluating the fitness of prospective employees and licensees. Id. § 41-1750(B)(8)-(9) (Supp.1990). They also include employers, potential employers, and volunteer youth-serving agencies if the victim of the underlying sexual offense was a minor and the registrant's employment or volunteer activity would place him in regular contact with minors under fifteen years of age. Ariz.Rev.Stat.Ann. § 41-1750(B)(11) (Supp.1990). This defined circle of access is sufficiently widespread in our view to constitute a substantial burden on the registrant.

A second burden flows predictably from the requirement of registration. Among the large group of ex-convicts, the registrant is defined as a member of a small and more notorious group more likely to be questioned and investigated when local sex crimes occur. See In re Reed, 33 Cal.3d at 660, 663 P.2d at 218, 191 Cal.Rptr. at 920 (quoting Kaus & Mallen, The Misguiding Hand of Counsel--Reflections on "Criminal Malpractice", 21 UCLA L.Rev. 1191, 1222 (1974)) (Registration, "if it serves its purpose, presumably means a series of command performances at lineups.").

These additional burdens are imposed upon sentencing under § 13-3821 and satisfy the second step of ex post facto analysis.

C. Criminal Penalty Requirement

The last and most difficult element of our ex post facto analysis is to determine whether the legislature intended the sex offender registration statute as a criminal penalty or whether, expressly or implicitly, the legislature enacted it for a civil, regulatory purpose. Ward, 448 U.S. at 248, 100 S.Ct. at 2641; see also Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 1375-76, 4 L.Ed.2d 1435 (1960) (termination of Social Security benefits to some deportable aliens was constitutional because it was not imposed for a penal purpose, but was incidental to Congressional power to regulate immigration).

We conclude that the legislature intended the sex offender registration statute as a criminal penalty. First, the statute is codified with Arizona's criminal code in Title 13 of the Arizona Revised Statutes. Second, for those convicted of sexual offenses in Arizona, the statute operates upon a finding of guilt at sentencing. See State v. Lammie, 164 Ariz. 377, 793 P.2d 134 (App.1990). Third, the statute is implicitly penal because of its breadth. The legislature presumably acted in part for the regulatory purpose to facilitate apprehension of those who commit highly recidivist sexual offenses. However, the registration statute applies to all sexual offenses, including such situational and often victimless ² misdemeanors as adultery, sodomy, lewd and lascivious acts, and open and notorious cohabitation. See Ariz.Rev.Stat.Ann. §§ 13-1408, 13-1409, 13-1411, 13-1412 (1989). Moreover, the requirement applies even to those convicted of attempting a sexual offense. State v. Lammie, 164 Ariz. at 379, 793 P.2d at 136. The legislature must have acted, at least in part, with penal intent when it required registration of all...