State v. Tyau

• Decision Date: 03 March 2021
• Docket Number: No. 2 CA-CR 2020-0171,2 CA-CR 2020-0171
• Citation: 483 P.3d 281,250 Ariz. 659
• Parties: The STATE of Arizona, Appellee, v. Benjamin Henry TYAU, Appellant.
• Court: Arizona Court of Appeals

250 Ariz. 659

483 P.3d 281

The STATE of Arizona, Appellee,

v.Benjamin Henry TYAU, Appellant.

No. 2 CA-CR 2020-0171

Court of Appeals of Arizona, Division 2.

Filed March 3, 2021

Laura Conover, Pima County Attorney, By Jason Philip Gannon, Deputy County Attorney, Tucson, Counsel for Appellee

Benjamin H. Tyau, Tucson, In Propria Persona

Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Espinosa and Vice Chief Judge Staring concurred.

ECKERSTROM, Judge:

¶1 Benjamin Tyau appeals from the trial court's ruling denying his application to set aside judgments of guilt. He contends the court erred in applying A.R.S. § 13-905(K) to his two convictions for criminal trespass. He also challenges the constitutionality of § 13-905(K), arguing its application in this case violated his constitutional rights to petition the government for redress of grievances, due process, and equal protection. For the reasons that follow, we affirm.

Factual and Procedural Background

¶2 In 2010, Tyau pled guilty to kidnapping, second-degree burglary, and two counts of first-degree criminal trespass. As the trial court later recounted when dismissing Tyau's petition for post-conviction relief pursuant to Rule 33, Ariz. R. Crim. P.¹ (a ruling we upheld² ): "As to all counts, the Defendant entered the apartments of young women when he thought they were not home. He would obtain their underwear or other items of sexual interest and then masturbate and ejaculate in their bedrooms."

¶3 Sentencing occurred in August 2010. For Tyau's kidnapping and criminal trespass convictions, the trial court sentenced him to aggravated, consecutive prison terms totaling ten years. The court suspended sentence on the burglary count and placed Tyau on a five-year term of intensive probation on the Sex Offender Treatment Caseload and subject to the Special Conditions of Probations for Sex Offenders, to be served after his prison terms. The court also ordered Tyau to register as a sex offender for the remainder of his life, consistent with the plea agreement.

¶4 In August 2020, after serving his sentence and completing probation, Tyau filed an application to have his convictions set aside. The trial court summarily denied the application on the ground that, under § 13-905(K), Tyau was not entitled to a set aside of the judgments of guilt "due to the underlying nature of his convictions." This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(3).

Application of § 13-905(K) to Tyau's Criminal Trespass Convictions

¶5 Tyau first contends the trial court erred in denying his application to set aside the two criminal trespass convictions, arguing § 13-905(K) does not apply to them. We review a denial of an application to set aside a conviction for an abuse of discretion, but we review issues of statutory construction de novo . State v. Hall , 234 Ariz. 374, ¶ 3, 322 P.3d 191 (App. 2014). "An error of law committed in reaching a discretionary conclusion may ... constitute an abuse of discretion." Id. (alteration in Hall ) (quoting State v. Wall , 212 Ariz. 1, ¶ 12, 126 P.3d 148 (2006) ). However, Tyau has not established an error of law or any other abuse of discretion here.

¶6 Tyau notes, correctly, that the trial court did not specify which prong of § 13-905(K) formed the basis for its denial of his application to set aside his convictions. Both he and the state assume the court was referring to subsection (K)(3), which bars defendants convicted of "[a]n offense for which there has been a finding of sexual motivation pursuant to [A.R.S.] § 13-118" from applying to have their convictions set aside. Tyau contends that, because neither the plea agreement nor the trial court's sentencing minute entry expressly reference a finding of sexual motivation pursuant to § 13-118 for the two criminal trespass counts, there was no such finding. We disagree.

¶7 The state filed a special allegation that all four counts, including the two criminal trespass counts, were committed for the purpose of Tyau's sexual gratification, as required by § 13-118(A). See also § 13-118(C) ("For purposes of this section ‘sexual motivation’ means that one of the purposes for which the defendant committed the crime was for the purpose of the defendant's sexual gratification.").

¶8 At the change-of-plea hearing, the trial court explained that Tyau would be required to register as a sex offender "because of the nature of these offenses." This statement was general, referencing all four of the crimes to which Tyau was pleading guilty. Tyau confirmed that the requirement had been explained to him and that he understood. He then proceeded to plead guilty to all four counts, none of which were framed in terms of a finding of sexual motivation. Defense counsel then provided the factual background for the case, noting that all the charges stemmed from Tyau's "sexual issues, voyeuristic and exhibitionism issues" and his interest in obtaining "items of sexual interest" such as underwear after entering the homes of his victims. Tyau confirmed that these characterizations by his counsel were "true and correct."

¶9 Tyau's counsel stipulated that the kidnapping and burglary counts had been committed with sexual motivation pursuant to § 13-118, but made no such statement with regard to the two criminal trespass counts. This was consistent with the terms of the written plea agreement. However, as the trial court later explained when dismissing Tyau's petition for post-conviction relief, Tyau "admitted to the factual basis at his change of plea hearing supporting sexual motivation for all counts."

¶10 Thus, at the sentencing hearing in August 2010, the trial court found that Tyau had "admitted as part of [his] plea that all of these offenses were committed for sexual motivation." See § 13-118(B) (requiring trier of fact to determine "whether the defendant committed the offense with a sexual motivation"). The court also commented that Tyau's were "sexually-motivated offenses." Neither Tyau nor his counsel contested these findings at the time.³ To the contrary, his counsel agreed that the two criminal trespass convictions stemmed from behaviors linked to Tyau's "underwear fetish" and the fact that "the thrill of being caught was sexually exciting to him," as evidenced by the semen he left behind.

¶11 Tyau is correct that the minute entry from the sentencing hearing lists § 13-118 only under the kidnapping and burglary counts. However, a trial court's oral pronouncement at sentencing controls over the corresponding minute entry when a discrepancy exists and the court's intention is clear from the record. State v. Ovante , 231 Ariz. 180, ¶ 38, 291 P.3d 974 (2013). Moreover, the sentencing minute entry reflects that the court aggravated the sentences for the two criminal trespass counts in part because of Tyau's "criminal history of sex offense[s], [for] which [he] was given treatment, and [his] risk to re-offend." As the court expressed directly on multiple occasions, the criminal trespasses were both, quite plainly, "sexually-motivated offenses." And, the court issued a "Notice of Registration of Sex Offender" on the day of Tyau's sentencing, which listed all four convictions as sexual offenses requiring registration.⁴

¶12 For all these reasons, Tyau is incorrect that § 13-905(K)(3) does not apply to his convictions for criminal trespass. The trial court correctly concluded that Tyau is not eligible for any set aside "due to the underlying nature of his convictions," which were all for sexually motivated offenses.

Constitutional Challenges

¶13 Tyau next contends § 13-905(K) is unconstitutional. We review a statute's constitutionality de novo , construing it to arrive at a constitutional meaning, if possible. State v. Johnson , 243 Ariz. 41, ¶ 8, 401 P.3d 504 (App. 2017). A statute is presumed to be constitutional, and "[t]he party challenging the validity of a statute has the heavy burden of overcoming that presumption." State v. McMahon , 201 Ariz. 548, ¶ 5, 38 P.3d 1213 (App. 2002). Tyau has not carried that burden here.

¶14 He first argues that § 13-905(K) prohibits citizens from "exercising free speech by way of petitioning the government for redress of grievances." But an application asking the trial court to exercise its discretion to set aside a criminal conviction is plainly not a petition for redress of any grievance.⁵ See State v. Bernini , 233 Ariz. 170, ¶ 11, 310 P.3d 46 (App. 2013) ("When a motion to set aside a conviction is filed by an eligible applicant ... the decision to grant or deny the request ‘is always discretionary with the court.’ " (quoting State v. Key , 128 Ariz. 419, 421, 626 P.2d 149, 151 (App. 1981) )). A convicted person has no fundamental right to have a criminal conviction set aside. See Key , 128 Ariz. at 421, 626 P.2d at 151. Rather, a set aside under § 13-905 is "a special benefit conferred by statute," id. , and it is therefore "naturally subject to legislative control and limitations," Hall , 234 Ariz. 374, ¶ 11, 322 P.3d 191. It was well within the legislature's authority to place certain limitations on its grant of the statutory right to apply to have a conviction set aside at the discretion of the trial court. Nothing in the United States or Arizona constitutions obligated our legislature to make that ability unlimited. "We will not substitute our judgment for that of the legislature as to where precisely appropriate lines should be drawn" in establishing who should be permitted to seek the setting aside of criminal convictions. Martin v. Reinstein , 195 Ariz. 293, ¶ 52, 987 P.2d 779 (App. 1999).

¶15 Tyau next contends § 13-905(K) violates his right to due process because it prohibits him "from applying for set aside and enjoying the privilege/freedom of [a] fresh start without first permitting him a way to object, present evidence, provide testimony, or make a written or oral argument in support of his position." But, as this court...