State v. Noble
| Decision Date | 21 April 1992 |
| Docket Number | No. CR-91-0049-PR,CR-91-0049-PR |
| Citation | 829 P.2d 1217,171 Ariz. 171 |
| Parties | STATE of Arizona, Appellee, v. Michael Brown NOBLE, Appellant. |
| Court | Arizona Supreme Court |
Michael Brown Noble and Lawrence R. McCuin were separately convicted of various sex offenses. We consolidated their cases for argument and granted review to determine whether the statute requiring them to register as sex offenders violates the ex post facto clause of the United States and Arizona Constitutions when applied to offenses committed before its enactment. We have jurisdiction pursuant to article 6, § 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.
Noble pleaded guilty in 1988 to charges of child molestation and sexual conduct with a minor. The crimes were committed in 1981 and 1982. He was sentenced to consecutive aggravated terms of eleven years on the first count and twelve years on the second count. In addition, the trial judge ordered him to register as a sex offender, pursuant to A.R.S. § 13-3821, 1 which became effective on July 27, 1983. 2 The court of appeals held that the application of the registration requirement to crimes predating its enactment violates the ex post facto clause of the Arizona Constitution. State v. Noble, 167 Ariz. 440, 808 P.2d 325 (Ct.App.1990).
McCuin pleaded guilty in 1988 to two counts of sexual conduct with a minor for conduct occurring in 1981. He was sentenced to an aggravated term of fourteen years on one count, and received a suspended sentence and a concurrent probationary term of seven years on the other count. As a term of his probation, the court required him to register as a sex offender under § 13-3821. On appeal, a different panel of the court of appeals held, with one judge dissenting, that requiring McCuin to register as a sex offender for offenses committed before the enactment of § 13-3821 did not violate the ex post facto clause. State v. McCuin, 167 Ariz. 447, 808 P.2d 332 (Ct.App.1991). We granted review in both cases to resolve the conflict between these two decisions.
Noble and McCuin both claim that requiring them to register as sex offenders under a statute that had not yet been enacted at the time they committed their offenses violates the prohibition against ex post facto laws of both the Arizona and federal constitutions.
The ex post facto clause of the Arizona Constitution is similar to that found in the United States Constitution. 3 State v. Yellowmexican, 142 Ariz. 205, 206-07, 688 P.2d 1097, 1098-99 (Ct.App.1984), adopted and approved, 142 Ariz. 91, 688 P.2d 983 (1984). We ordinarily interpret the scope of a clause in the Arizona Constitution similarly to the United States Supreme Court's interpretation of an identical clause in the federal constitution. But see Pool v. Superior Court, 139 Ariz. 98, 108, 677 P.2d 261, 271 (1984) (). In this instance, we believe that the cases interpreting the ex post facto clause of the federal constitution provide a useful analytical framework for interpreting our own ex post facto clause. In addition, this court has consistently followed federal precedent in this area. See, e.g., State v. Correll, 148 Ariz. 468, 481-82, 715 P.2d 721, 734-35 (1986) (applying analysis of Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) and Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); In re Appeal in Maricopa County Juvenile Action No. J-92130, 139 Ariz. 170, 677 P.2d 943 (1984) (). 4 We begin, therefore, with the seminal United States Supreme Court case, Calder v. Bull.
In Calder v. Bull, the United States Supreme Court held that the ex post facto clause prohibited
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. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. 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. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) (opinion of Chase, J.) (emphasis added). In Beazell v. Ohio, the Court explained that
[t]he constitutional prohibition and the judicial interpretation of it rest upon the notion that laws, whatever their form, which purport to make innocent acts criminal after the event, or to aggravate an offense, are harsh and oppressive, and that the criminal quality attributable to an act, either by the legal definition of the offense or by the nature or amount of the punishment imposed for its commission, should not be altered by legislative enactment, after the fact, to the disadvantage of the accused.
269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925).
In other cases, the Court has suggested that the ex post facto clause prohibited a broader range of statutory application. In one case, for example, the Court expressed the view that the Calder categories are not exclusive, quoting a jury instruction providing that "an ex post facto law is one which, in its operation, makes that criminal which was not so at the time the action was performed, or which increases the punishment, or, in short, which, in relation to the offense or its consequences, alters the situation of a party to his disadvantage." Kring v. Missouri, 107 U.S. 221, 228-29, 2 S.Ct. 443, 449, 27 L.Ed. 506 (1883) (quoting United States v. Hall, 26 F.Cas. 84, 86 (C.C.D.Pa.1809) (No. 15,285), aff'd, 10 U.S. (6 Cranch) 171, 3 L.Ed. 189 (1810)).
The Court put any doubt regarding the exclusivity of the Calder categories to rest when it expressly overruled Kring. Collins v. Youngblood, 497 U.S. 37, ----, 110 S.Ct. 2715, 2723, 111 L.Ed.2d 30 (1990). The Court explained that
[t]he holding in Kring can only be justified if the Ex Post Facto Clause is thought to include not merely the Calder categories, but any change which "alters the situation of a party to his disadvantage." We think such a reading of the Clause departs from the meaning of the Clause as it was understood at the time of the adoption of the Constitution, and is not supported by later cases.
Id. (emphasis added). We therefore confine our analysis to the Calder categories.
Only one Calder category is relevant to the instant case. The application of § 13-3821 to Noble and McCuin 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." Calder, 3 U.S. (3 Dall.) at 390; see also State v. Cocio, 147 Ariz. 277, 284, 709 P.2d 1336, 1343 (1985) ().
As a threshold matter, we must determine whether the statute is retrospectively applied to Noble and McCuin. "A law is retrospective if it 'changes the legal consequences of acts completed before its effective date.' " Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987) (quoting Weaver, 450 U.S. at 31, 101 S.Ct. at 965); see also Yellowmexican, 142 Ariz. at 207, 688 P.2d at 1099 (). The state claims that § 13-3821 is not retrospectively applied because the registration requirement is triggered by conviction rather than by the commission of the sexual offense, and Noble and McCuin were actually convicted after the enactment of the statute. We disagree. Retrospective application of a statute altering the mandatory sentence for an offense, even if the defendant was convicted after the new sentencing statute was enacted, is directly contrary to a primary purpose of the ex post facto clause--"to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed." Weaver, 450 U.S. at 28-29, 101 S.Ct. at 964.
Nor is there any question that, by burdening Noble and McCuin with the registration requirement, the retrospective application of the statute altered the situation to their disadvantage. Compare Miller, 482 U.S. at 432-33, 107 S.Ct. at 2452 (change in sentencing guidelines disadvantaged petitioner, despite fact that he could not show he would otherwise have received lesser sentence, because it foreclosed his ability to challenge the imposition of a sentence longer than presumptive sentence under old law) with Dobbert v. Florida, 432 U.S. 282, 296-97, 97 S.Ct. 2290, 2300, 53 L.Ed.2d 344 (1977) ().
Accordingly, the sole question we must decide is whether registration under § 13-3821 constitutes punishment.
To determine whether the registration requirement is punitive or regulatory, we look first to "whether the legislative aim was to punish [an] individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation." De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1155, 4 L.Ed.2d 1109 (1960). If the legislative aim was punitive, we treat the...
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State v. McCuin
... ... Grant Woods, Atty. Gen. by Paul J. McMurdie, Crane McClennen, Phoenix, for appellee ... C. Kenneth Ray, II, Phoenix, for appellant ... FELDMAN, Chief Justice ... The facts of this case are set forth in our opinion in State v. Noble", 171 Ariz. 171, 829 P.2d 1217 (1992), and in the court of appeals' opinion in State v. McCuin, 167 Ariz. 447, 808 P.2d 332 (Ct.App.1991). For the reasons given in our opinion today in Noble, the trial court judgment is affirmed, and part IV of the court of appeals' opinion is vacated ... \xC2" ... ...