State v. Wagstaff

• Decision Date: 07 July 1988
• Docket Number: Nos. 1,CA-CR,s. 1
• Parties: STATE of Arizona, Respondent-Appellee, v. Bruce WAGSTAFF, Petitioner-Appellant. 10190, 1 11902-PR.
• Court: Arizona Court of Appeals

Page 1130

775 P.2d 1130

161 Ariz. 66

STATE of Arizona, Respondent-Appellee, v. Bruce WAGSTAFF, Petitioner-Appellant.

Nos. 1 CA-CR 10190, 1 CA-CR 11902-PR.

Court of Appeals of Arizona Division 1, Department C.

July 7, 1988.

Review Granted in part and Denied in part Nov. 23, 1988.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Criminal Div., and Jack Roberts, Asst. Atty. Gen., Thomas E. Collins, Maricopa Co. Atty. by H. Allen Gerhardt, Deputy Co. Atty., Phoenix, for respondent-appellee.

George M. Sterling, Jr., Phoenix, for petitioner-appellant.

OPINION

FROEB, Judge.

Appellant has brought this appeal from his conviction for child molestation. He has also petitioned this court for review of the trial court's denial of his petition for post-conviction relief. For clarity, the appeal will be discussed separately from the petition for review.

APPEAL

The facts, taken in a light most favorable to sustaining the verdict below, see, e.g., State v. Olivas, 119 Ariz. 22, 579 P.2d 60 (App.1978), are as follows. In 1984, appellant, his wife and their three children moved to Arizona from Salt Lake City, Utah. In August of 1985, appellant and his wife sent their two older children, Shane and Stacy Wagstaff, to live with their maternal grandmother in Utah. While the children were in Utah, the maternal grandmother asked Utah Child Protective Services to investigate appellant for child molestation. In September of 1985, the two children were returned to Arizona pursuant to a Utah state court order and placed under the supervision of the Arizona Department of Economic Security. Shane Wagstaff was later interviewed by the Mesa Police Department.

Appellant was indicted on October 31, 1985, on one count of child molestation of his seven-year-old son, a class 2 felony, A.R.S. § 13-1410, and a dangerous crime against children pursuant to A.R.S. § 13-604.01. Appellant's jury trial began on March 4, 1986. Appellant maintained at trial that he never sexually molested his son. On March 10, 1986, the jury found appellant guilty of child molestation in the first degree. See A.R.S. § 13-604.01(K).

Petitioner submitted to the trial court a pro per motion for new trial on March 31, 1986. The motion, however, was physically lost before it could be filed. Another copy of the motion was resubmitted for filing on April 11, 1986. The motion for new trial was finally filed on May 2, 1986, and was denied after oral argument. Appellant was sentenced to a mitigated term of twelve years imprisonment with credit for 200 days presentence incarceration. The trial judge also imposed lifetime parole as required by A.R.S. § 13-604.01(I). Appellant timely filed this appeal.

In his appeal, appellant raises the following issues:

(1) Is A.R.S. § 13-604.01, defining and providing sentences for dangerous crimes against children, invalid because it violates article 4, part 2, § 13 of the Arizona Constitution?

(2) Is A.R.S. § 13-604.01(I), providing for mandatory lifetime parole of one convicted of a dangerous crime against children in the first degree, illogical, cruel and unusual punishment, and violative of due process of law?

(3) Did the trial court err by denying appellant's pro per motion for new trial?

PROHIBITION AGAINST MULTIPLE SUBJECTS

Appellant claims that Chapter 364 of the First Regular Session Laws of 1985 (Chapter 364), which includes current A.R.S. § 13-604.01, is in violation of the Arizona Constitution. Appellant did not allege this defect in the trial court. To preserve a constitutional question for review, it must be properly asserted in the lower court. State v. Junkin, 123 Ariz. 288, 599 P.2d 244 (App.1979). However, this court may nevertheless consider a constitutional issue for the first time on appeal if substantial rights of a fundamental nature are involved, which could have resulted in severe prejudice to the defendant. State v. Politte, 136 Ariz. 117, 664 P.2d 661 (App.1982).

Specifically, appellant alleges that Chapter 364 violates article 4, part 2, § 13 of the Arizona Constitution, which reads in pertinent part: "Every Act shall embrace but one subject and matters properly connected therewith." Appellant argues that Chapter 364 embraces more than one subject not properly connected to the other subjects of the act.

Chapter 364 is an act relating to "Children--Dangerous and Sexual Crimes Against--Expedited Proceedings; Sentence and Punishment--Enhanced Punishment; Offenses--Classification; Child Witnesses--Recorded Testimony--Admissibility; Fingerprinting--Employment Involving Children." Additions and amendments to the Arizona Revised Statutes enacted in Chapter 364 deal with crimes against children, prosecution of crimes against children, and the protection of children. Various amendments have also been made to ensure that other statutes will be consistent with enactment of A.R.S. § 13-604.01. Furthermore, in the course of enacting Chapter 364, the legislature has also provided for needed revisions and clerical corrections of the amended statutes.

We find no merit to appellant's claim that Chapter 364 violates the constitutional prohibition quoted earlier. Liberal construction is to be accorded legislation challenged under the constitutional provision setting forth the one-subject rule. Sample v. Sample, 135 Ariz. 599, 603, 663 P.2d 591, 595 (App.1983). The word "subject" is to be given a broad and extended meaning to allow the legislature to include matters having a logical or natural connection. Litchfield Elementary School Dist. No. 79 v. Babbitt, 125 Ariz. 215, 224, 608 P.2d 792, 801 (App.1980). There is a logical connection between all the subjects of the bill, and no violation of the Arizona Constitution exists. Cf. Sample, 135 Ariz. at 599, 663 P.2d at 591 (no violation of Ariz. Const. art. IV, pt. 2, § 13 where act which generally addressed domestic relations matters also included criminal sanctions).

LIFETIME PAROLE

At sentencing, petitioner was sentenced to twelve years imprisonment, as well as lifetime parole under A.R.S. § 13-604.01(I). On appeal, appellant maintains that the statute is illogical, constitutes cruel and unusual punishment and violates due process of law. The response of the state is solely that, because appellant will not begin his lifetime parole for ten more years, his complaint is premature.

A.R.S. § 13-604.01(I) provides in part:

In addition to the term of imprisonment imposed pursuant to this section and notwithstanding any other law, the court shall order that a person convicted of any dangerous crime against children in the first degree shall be supervised on parole after release from confinement on such conditions as the court or the board of pardons and paroles deems appropriate for the rest of the person's life.

Contrary to the state's position, this matter is now ripe for adjudication. Appellants are by law entitled to appeal from sentences which are excessive or illegal. A.R.S. § 13-4033(3). The challenged sentence has been imposed, and although appellant's parole will not begin for ten years, appeal of that sentence is not premature.

The cardinal rule of statutory interpretation is to determine and give effect to the legislative intent behind the statute. Calvert v. Farmers Ins. Co., 144 Ariz. 291, 697 P.2d 684 (1985). In interpreting a statute, courts should seek a sensible construction which accomplishes the legislative intent and, if possible, avoids absurd consequences.. State v. Cain, 27 Ariz.App. 441, 555 P.2d 1129 (1976). Furthermore, when reasonably practical, statutes should be explained in conjunction with other statutes to the end that they may be harmonious and consistent. State v. Sweet, 143 Ariz. 266, 693 P.2d 921 (1985). We find, however, that the lifetime parole provision of A.R.S. § 13-604.01(I), when imposed for a dangerous crime against children in the first degree, is inconsistent with the present criminal code in Arizona and is invalid.

By providing for lifetime "parole" to follow completion of appellant's sentence, the legislature has departed from the established statutory scheme set forth in Title 13 of Arizona Revised Statutes. First, A.R.S. § 13-604.01(I) purports to give the trial court power to impose lifetime parole when a defendant is convicted of a dangerous crime against children in the first degree. However, the judicial branch of government in Arizona has no authority to grant any person parole. The exclusive power to grant parole rests with the Arizona Board of Pardons and Paroles. State v. Harris, 133 Ariz. 30, 648 P.2d 145 (App.1982); A.R.S. § 31-402(A).

Second, A.R.S. § 13-604.01(I) directs that a defendant convicted of a dangerous crime against children in the first degree be placed on lifetime parole after release from confinement. However, because appellant has been convicted of a dangerous crime against children in the first degree, he is ineligible for release at any time prior to the expiration of his entire sentence. A.R.S. § 13-604.01(E). The Board of Pardons and Paroles has no authority to provide for parole supervision of a defendant who has completed his term of imprisonment. See A.R.S. § 31-412(A), 31-414 (a defendant can be on parole only before the expiration of the term specified in his sentence, or before absolute discharge). Appellant in the instant matter, upon completion of his prison term, will have no unexpired term during which he may be placed on parole.

Finally, parole violators may only be reimprisoned for a period equal to their unexpired maximum sentence at the time parole was granted. A.R.S. § 31-417. If appellant violates a term and condition of lifetime parole, what are the consequences? He cannot be reimprisoned, because there will be no unexpired portion of his sentence to serve.

Since enforcement of the statute under present Arizona law is impossible, we hold that A.R.S. § 13-604.01(I) is invalid, insofar as it refers to lifetime parole for a defendant convicted of...