State v. Wagstaff

Decision Date15 May 1990
Docket NumberNo. CR-88-0299-PR,CR-88-0299-PR
Citation794 P.2d 118,164 Ariz. 485
PartiesSTATE of Arizona, Respondent-Appellee, v. Bruce WAGSTAFF, Petitioner-Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen., William J. Schafer, III, Former Asst. Atty. Gen. and Chief Counsel, Crim. Div., Jack Roberts, Asst. Atty. Gen., Phoenix, for respondent-appellee.

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

GORDON, Chief Justice.

The State petitioned this Court to review a court of appeals decision affirming defendant's conviction, granting defendant's petition for post-conviction relief, and modifying the sentence. Pursuant to A.R.S. §§ 13-4031 and -4033 and Rule 31.19, Ariz.R.Crim.P., 17 A.R.S., we granted the State's petition but limited our review to whether the court of appeals correctly declared invalid the mandatory lifetime parole provision of A.R.S. § 13-604.01(I) thereby vacating the trial court's imposition of lifetime parole as part of defendant's sentence. We have jurisdiction pursuant to article 6, § 5(3) of the Arizona Constitution.

For purposes of our review, we need only note that Wagstaff (appellant) was convicted of child molestation in the first degree, a crime falling within the special sentencing provisions for dangerous crimes against children, A.R.S. § 13-604.01. Appellant received 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 be supervised on parole after release from confinement on such conditions as the court or board of pardons and paroles deems appropriate for the rest of the person's life.

a mitigated sentence of 12 years and was further sentenced to lifetime parole as required by A.R.S. § 13-604.01(I), which provides:

The court of appeals found the statute "invalid" because: (1) it gives the judicial branch power to grant parole and that power rests exclusively with the Board of Pardons and Paroles; (2) it is inconsistent with other sections of the criminal code, specifically, A.R.S. §§ 31-412(A) and 31-414, which extend the Board of Pardons and Paroles' authority to supervise parolees only to the expiration of the term-of-years sentence; and (3) it is impossible to enforce the statute as it relates to a first-degree offender who is not eligible for parole during the entire sentence because no unexpired term for which a parole violator could be reincarcerated remains.


Initially, we note that the court of appeals and both parties presented a broad array of problems with, justifications for, interpretations of, and rationale underlying this statute. Appellant challenged the statute's constitutionality on several grounds and the State provided many reasons why the statute should be upheld. We believe, however, that this statute violates the constitutionally required separation of powers on two bases not fully addressed by either party or by the court of appeals.

The Arizona Constitution provides for the division of government into three departments, stating that "such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others." Ariz. Const. art. 3. By dispersing authority among various institutions of state government, the framers of the Arizona Constitution manifested their distrust of concentrations of power. See Leshy, The Making of the Arizona Constitution, 20 Ariz.St.L.J. 1, 70 (1988). The fear of concentrating power in the judicial branch was perhaps best expressed by one of the framers of the United States Constitution:

[W]ere the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined with the executive power, the judge might behave in all the violence of an oppressor.

The Federalist No. 47 (J. Madison, quoting Montesquieu) (emphasis in original). Many years ago, this Court quoted with favor the words of Chief Justice Marshall to describe the concept of division of power and the court's role in assessing whether the separation of powers doctrine has been violated:

The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily.

Giss v. Jordan, 82 Ariz. 152, 158, 309 P.2d 779, 785 (1957) (quoting Wayman v. Southard, 10 Wheat. 1, 6 L.Ed. 253, 263 (1825)). As discussed below, we find that the statute in question crosses the definitionally difficult dividing line between constitutional and unconstitutional delegation of powers and, therefore, violates the mandate of Article 3 of the Arizona Constitution that the powers of government remain separate and distinct.

Judiciary's Power to Impose Lifetime Parole

The court of appeals apparently believed that A.R.S. § 13-604.01(I) violated separation of powers. It said that the statute "purports to give the trial court power to impose lifetime parole.... 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. Wagstaff, 161 Ariz. 66, 775 P.2d 1130 (App.1988).

We agree that the exclusive power to grant parole rests with the Board of Pardons and Paroles. However, A.R.S. § 13-604.01(I) does not give the judicial branch power to grant parole; rather, it mandates that lifetime parole be imposed by the court as part of a convicted offender's sentence. The legislative determination that lifetime parole should be part of the sentence imposed by the judiciary on those who commit dangerous crimes against children does not necessarily violate separation of powers.

Arizona is not the first jurisdiction to create a special parole as part of the sentence. The "special parole term" provisions enacted by the United States Congress as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, for example, have been examined and upheld by nearly all of the federal circuit courts. See, e.g., United States v. Arellanes, 767 F.2d 1353, 1358-59 (9th Cir.1985); Yates v. United States, 753 F.2d 70 (8th Cir.1985) (per curiam), cert. denied, 471 U.S. 1022, 105 S.Ct. 2032, 85 L.Ed.2d 314 (1985), but see United States v. Tebha, 578 F.Supp. 1398 (N.D.Cal.1984).

In the federal cases, defendants challenged the imposition of a special parole term on various constitutional grounds, including due process and separation of powers. The statute, 21 U.S.C. § 841(b)(1)(A), mandates a special parole term of at least three years in addition to a term of imprisonment. 1 Those attacking this statute charged that by failing to set the maximum number of years one could be sentenced to a special parole term, Congress created a vague statute and invalidly delegated legislative powers. See, e.g., Arellanes, 767 F.2d at 1358-59. The courts held that the sentencing statute was not vague or in violation of separation of powers because a maximum term of lifetime parole is implied and the penalty for parole violation is clearly defined. See, e.g., Garcia v. United States, 769 F.2d 697, 699 (11th Cir.1985).

Arizona's statute is quite clear on the number of years a person could be sentenced to a special parole. First-degree offenders must be sentenced to parole supervision for the remainder of their lives and second degree offenders can be sentenced to parole supervision up to the remainder of their lives. See A.R.S. § 13-604.01(I). Contrary to the court of appeals' implied interpretation, therefore, we do not believe the legislature's determination that those who commit dangerous crimes against children should be sentenced to lifetime parole, by itself, violates separation of powers. To the extent the court of appeals relied on this premise in invalidating the statute, we disapprove that reasoning.

Unconstitutional Vesting of Executive Authority in the Judiciary

This Court, along with the courts of our sister states, has long recognized the division of power and the transfer of jurisdiction over a felon from the judicial to the executive branch of government upon conviction. See Orme v. Roberts, 32 Ariz. 502, 260 P. 199 (1927); see, e.g., Swart v. State, 720 P.2d 1265, 1270 (Okla.Crim.App.1986); January v. Porter, 75 Wash.2d 768, 453 P.2d 876, 879 (1969); Commonwealth v. Cain, 345 Pa. 581, 28 A.2d 897 (1942). In broad terms, the judiciary's function ends with a verdict of acquittal, the revocation of probation, or the final entry of a judgment and sentence. Upon entry of a final judgment and sentence of imprisonment, legal authority over the accused passes by operation of law to the Department of Corrections and the Board of Pardons and Paroles. See generally Dupnik v. MacDougall, 136 Ariz. 39, 664 P.2d 189 (1983) (discussing Department of Corrections authority); see also State v. Harris, 133 Ariz. 30, 648 P.2d 145 (App.1982) (discussing distribution of authority). These executive agencies bear full responsibility for executing the judgment and sentence as well as for determining the terms and conditions upon which parole may be granted. Their responsibilities are carried out pursuant to duly enacted statutes, including A.R.S. §§ 31-201.01 and -412, and guided by detailed administrative rules and regulations, codified at Ariz.Comp.R. & Regs. 5-1-201 et seq.

Under our system, parole decisions traditionally have not been part of the judicial process and have not been in the continuum of the judicial function of government. From the earliest days of Arizona's...

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