State v. Ramsey
| Decision Date | 03 March 1992 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 831 P.2d 408,171 Ariz. 409 |
| Parties | STATE of Arizona, Appellant, v. Vicky Jean RAMSEY, Appellee. 90-1488. |
| Court | Arizona Court of Appeals |
The primary issue we decide today is whether the language of the domestic violence statute, which requires prosecutorial concurrence with the judge's decision to defer the entry of guilt, violates the separation of powers doctrine and, if so, whether the unconstitutional part may be severed. In addition, we must decide whether a biological parent whose parental rights have been legally severed is related within the second degree of consanguinity to her natural children so as to be entitled to deferred entry of judgment of guilt and probation under the domestic violence statute. We agree with the lower court's determination that Vicky Jean Ramsey ("defendant") was eligible to have the entry of her judgment of guilt deferred under the domestic violence statute and that the trial judge properly severed the prosecutorial concurrence requirement from the statute. Accordingly, we affirm the ruling below.
A jury found the defendant guilty of two counts of custodial interference. Ariz.Rev.Stat.Ann. ("A.R.S.") § 13-1302 (1989). The trial judge granted the defendant's motion to impose sentence under the domestic violence statute, A.R.S. section 13-3601. The prosecutor did not concur with the trial judge's decision to defer entry of the defendant's judgment of guilt and place the defendant on three years' probation as required by A.R.S. section 13-3601(H). The state filed a timely appeal, claiming the trial court erred in finding the defendant eligible for the deferral option under the domestic violence statute and in nullifying the statutory requirement of prosecutorial concurrence.
I. Does the entry of a decree of adoption sever the blood relationship between a parent and child for the purposes of the domestic violence statute?
II. Does the language of the domestic violence statute, which requires prosecutorial concurrence with a judge's decision to place a defendant on probation and defer entry of guilt, violate the separation of powers doctrine?
III. Can the unconstitutional part of the domestic violence statute be severed?
On October 18, 1974, the defendant gave birth to twin girls. In 1982, the defendant consented to the twins' adoption by the defendant's aunt and uncle. Before the incident that resulted in the charge of custodial interference, the defendant, the twins, and the adoptive parents enjoyed a good relationship. Although the defendant lived in North Carolina, she maintained contact and occasionally visited the girls in Arizona.
On August 9 and 10, 1989, the defendant removed the fifteen-year-old twins from their adoptive parents' home without securing the parents' approval. She took the twins to North Carolina and refused to relinquish physical custody to the adoptive parents. As a result, the authorities arrested defendant in North Carolina and returned her to Arizona where a jury found her guilty of two counts of custodial interference. 1
The legislature has designated certain crimes as "family offenses," thus identifying particular domestic situations in which the court may treat a defendant more leniently. This treatment offers domestic offenders an opportunity for rehabilitation without the stigma of a criminal conviction on their record.
Under certain conditions, a person found guilty of custodial interference can be classified as a domestic offender. One of the conditions requires that the offender and the victims be related by blood to the second degree of consanguinity. 2 The court then has the discretion to defer entry of the judgment of guilt and place the domestic offender on probation. The deferral option requires that additional statutory conditions be met. Arizona Revised Statutes section 13-3601(H) mandates that:
H. If the defendant is found guilty of an offense included in domestic violence and if probation is otherwise available for such offense, the court may, without entering a judgment of guilt and with the concurrence of the prosecutor and consent of the defendant, defer further proceedings and place the defendant on probation....
(Emphasis added.)
Here, all of the statutory requirements for the deferred entry of the judgment of guilt were met except for prosecutorial concurrence. The prosecutor objected and preserved the right to appeal when the trial judge granted the defendant's motion to be sentenced under A.R.S. section 13-3601(H). 3 On appeal, the state urges that the deferral was error for two reasons. First, the state contends that the defendant could not have the entry of her judgment of guilt deferred under the statute because the prosecutor refused to concur. Second, because her parental rights had been severed, the state asserts that the defendant was no longer "related" to the children within the requisite degree and thus is not entitled to be classified as a domestic offender under the statute. A.R.S. § 13-3601(A). We address the issue of defendant's eligibility first.
In order for the defendant to be classified as a domestic offender, she must have committed custodial interference against a victim who was either living with her or related to her within the second degree of consanguinity or affinity. Consanguinity is defined as Black's Law Dictionary 275 (5th ed. 1979). The degree of consanguinity is determined by the civil law, which tells us that:
[p]arents and children of a [person] are related to him in their first degree....
Uncles, aunts, nephews, nieces, and great-grandparents ... are related to him in the third degree.
State v. Sumpter, 438 N.W.2d 6, 8 (Iowa 1989) (citing Am.Jur.2d Descent and Distribution § 55, at 793 (1983)). In this case, the victims were the adoptive parents (defendant's aunt and uncle) and the twins.
Here, the state is correct in its argument that the defendant is not related to the adoptive parents within the degree of consanguinity required by the statute. The question that remains is whether the defendant is related to her biological children within the requisite degree of consanguinity. The state maintains that the adoption severed not only the legal parent-child relationship but also the blood relationship between the defendant and the twins. Consequently, the state argues the defendant is no longer related to the twins in any degree.
The state cites A.R.S. section 8-117 in support of its position. The relevant portion of that statute provides that:
Upon the entry of the decree of adoption, the relationship of parent and child between the adopted person and the persons who were his parents just prior to the decree of adoption shall be completely severed and all the legal rights, privileges, duties, obligations and other legal consequences of that relationship shall cease to exist....
A.R.S. § 8-117(B). At trial, the state introduced evidence of the defendant's signed consent to adopt and a copy of the order of adoption. The state properly concluded that the adoption severed the legal relationship between the defendant and her children. However, the state's argument that the blood relationship between the defendant and her natural children was extinguished by the adoption is without merit.
In State v. Wilhite, 160 Ariz. 228, 772 P.2d 582 (App.1989), this court examined the issue of whether a blood relationship was terminated by adoption. The defendant in Wilhite was the biological father of children who were adopted by the defendant's brother and sister-in-law. After taking the children without permission, the defendant sexually molested and abandoned his daughter. In addition to other crimes, a jury found the defendant guilty of custodial interference.
Because the custodial interference statute provided a lesser sentence for a "parent" convicted of custodial interference, Wilhite asserted that his biological relationship entitled him to the lesser felony even though his legal parental rights had been terminated. In rejecting this argument, the court determined that a "parent" meant legal parent for the purposes of the statute. However, the court agreed that termination of legal parental rights does not end one's blood relationship: "consanguinity, [is] a concern that does not end with adoption and termination of parental rights." 160 Ariz. at 230, 772 P.2d at 584.
The decree of adoption did not sever the blood relationship between the defendant and her biological children. Although the defendant's parental rights had ceased to exist, she is still related to the twins in the first degree of consanguinity. The defendant, therefore, was eligible to have the entry of her judgment of guilt deferred under A.R.S. section 13-3601(H).
The state argues that the trial court erred when it severed the prosecutorial concurrence portion of the domestic violence statute as an infringement on the separation of powers. Article 3 of the Arizona Constitution embodies the doctrine of separation of powers:
The powers of the government of the State of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial; and, except as provided in this Constitution, such departments shall be separate and distinct, and no one of such departments shall...
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