State v. Verdugo
| Decision Date | 17 January 1995 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 901 P.2d 1165,183 Ariz. 135 |
| Parties | STATE of Arizona, Respondent, v. Jason Alexander VERDUGO, Petitioner. 94-0417-PR. |
| Court | Arizona Court of Appeals |
Petitioner Jason Alexander Verdugo (defendant) petitions for review of the trial court's summary dismissal of his petition for post-conviction relief. The only issue preserved for our review 1 is whether defendant has presented a colorable claim that the trial court lacked subject matter jurisdiction, in the absence of the state's production of evidence that both defendant and the victim were non-Indians. The underlying conviction arose from the acceptance of defendant's guilty plea and the entry of a conviction for second degree murder that occurred on the Salt River Indian Reservation. Because we conclude that the state did not have the burden to prove that defendant and his victim were non-Indians in order to establish subject matter jurisdiction, we hold that defendant has failed to state a colorable claim, and we deny relief.
Defendant was charged by indictment with second degree murder, a class 1 felony, leaving the scene of a fatal accident, a class 6 felony, and theft, a class 3 felony. The state alleged the dangerous nature of the murder charge, and that defendant had prior felony convictions pursuant to State v. Hannah, 126 Ariz. 575, 617 P.2d 527 (1980). These charges arose out of a hit-and-run incident that occurred on September 15, 1992, at the intersection of Pima Road and Chaparral Road in Maricopa County, a location within the Salt River Indian Community.
Pursuant to his plea agreement with the state, defendant pleaded guilty to second degree murder, a class 1 nondangerous, nonrepetitive felony, and the state agreed to dismissal of the remaining counts in this and two other causes as well as the enhancement allegations. Defendant was sentenced to 18.5 years imprisonment, and was ordered to pay restitution. He filed a petition for post-conviction relief in the trial court, requesting, in part, that an evidentiary hearing be set to determine the subject matter jurisdiction of the court, because the state had failed to meet its burden to prove at the change of plea hearing that both defendant and his victim were non-Indians, thereby establishing subject matter jurisdiction in the state court. However, defendant did not affirmatively assert, or offer any evidence, that either he or the victim was a member of the Salt River Indian Community. In summarily dismissing defendant's petition, the trial court ruled as follows:
Defendant claims the court did not have jurisdiction over the defendant because the crime occurred on the Indian Reservation. The defendant has not asserted he is an Indian. The victim was not an Indian. The law is well settled that when a crime is committed by a non-Indian against a non-Indian on an Indian reservation, the state courts have exclusive jurisdiction. Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990); State v. Moore, 173 Ariz. 236, 841 P.2d 231 (App.1992); State v. Griswold, 101 Ariz. 577, 422 P.2d 693 (1967). This court had and exercised proper jurisdiction over the defendant.
Defendant timely petitioned this court for review of this ruling, arguing that the burden of proof is on the state to establish the status of defendant and the victim as non-Indians, as a necessary element that must be proven to establish the jurisdiction of the Maricopa County Superior Court over prosecution of this crime.
Defendant does not challenge the well-established rule that, in Arizona, the state court has jurisdiction to prosecute a non-Indian for a crime against a non-Indian victim committed on an Indian reservation. See Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962 (1946) (); State v. Herber, 123 Ariz. 214, 598 P.2d 1033 (App.1979) (same). Nor does the state challenge the corollaries of that rule that, if a crime that occurs on an Indian reservation involves a member of the tribe as either a defendant or victim, the federal or tribal courts have exclusive subject matter jurisdiction over the criminal prosecution. See Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990); State v. Flint, 157 Ariz. 227, 756 P.2d 324 (App.1988), cert. denied, 492 U.S. 911, 109 S.Ct. 3228, 106 L.Ed.2d 577 (1989); see generally 18 U.S.C. §§ 1152, 1153 (The Indian Country Crimes Act); Robert N. Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz.L.Rev. 503 (1976).
The controversy centers on defendant's contention that the state bears the burden of proof to establish jurisdiction, just as it must prove every element of the offense beyond a reasonable doubt, and that in this case it failed to do so because it presented no evidence at his change of plea hearing, as part of the factual basis, that both he and the victim were non-Indians. In our opinion, defendant's contention is not well taken.
In Arizona, the general rule is that the state has subject matter jurisdiction to prosecute crimes committed within its territorial borders. State v. Vaughn, 163 Ariz. 200, 202-03, 786 P.2d 1051, 1053-54 (App.1989). The territorial applicability of our criminal statutes is set forth in A.R.S. § 13-108, which provides in part:
A. This state has jurisdiction over an offense that a person commits by his own conduct or the conduct of another for which such person is legally accountable if:
1. Conduct constituting any element of the offense or a result of such conduct occurs within this state....
B. When the offense involves a homicide, either the death of the victim or the bodily impact causing death constitutes a result within the meaning of Subsection A, paragraph 1. If the body of a homicide victim is found in this state it is presumed that the result occurred in this state.
See also A.R.S. § 13-109(A) (); State v. Manypenny, 445 F.Supp. 1123, 1125-26 (D.Ariz.1977), appeal dismissed, 608 F.2d 1197 (9th Cir.1979), reversed on other grounds, 451 U.S. 232, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981) ().
As an exception to that general rule, however, the Indian Country Crimes Act preempts state court jurisdiction over a criminal prosecution when a criminal offense involving an Indian occurs on Indian land. 18 U.S.C. §§ 1152, 1153 (1988). If defendant or the victim is an Indian and the crime was committed within Indian country, as defined by federal statute, then the state superior court has no subject matter jurisdiction to try defendant for the offense. Id. The federal statute is silent, however, on the issue of who bears the burden of proof to establish these jurisdictional facts.
Arizona courts have not squarely addressed this issue; however, in similar situations, we have held that a defendant bears the burden of proving lack of state court jurisdiction over a crime that occurs within the state. See Vaughn, 163 Ariz. at 203, 786 P.2d at 1054 (); State v. Dykes, 114 Ariz. 592, 598, 562 P.2d 1090, 1096 (App.1977) ().
The majority of other courts addressing this issue have held that a defendant bears the burden to show facts that would establish an exception to the state court's jurisdiction under the Indian Country Crimes Act. See, e.g., State v. St. Francis, 151 Vt. 384, 563 A.2d 249, 253 (1989) (); State v. Cutnose, 87 N.M. 307, 309, 532 P.2d 896, 898 (1974) (); State v. Buckaroo Jack, 30 Nev. 325, 96 P. 497, 498 (1908) (); Pendleton v. State, 103 Nev. 95, 734 P.2d 693, 695 (1987) (). The reasoning of these cases is compelling.
First, the state must meet the initial burden of proving that the offense occurred within this state. This element is part of the jurisdictional foundation for prosecution by an Arizona court. See A.R.S. §§ 13-108, -109. In this case, the jurisdictional foundation was met by the state's allegation in the indictment that the offense occurred within Maricopa County, and by the undisputed reference to that fact as part of the factual basis at the change of plea hearing. However, proving that the offense did not involve a member of the Salt River Indian Community is not a requisite element of establishing the offense of second degree murder. See A.R.S. § 13-1104. To place such a burden on the state would put it in the position of having to prove "the nonoccurrence of events which might deprive it of jurisdiction." State v. Parker, 294 S.C. 465...
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