Opinion
No. 1 CA-JV 14-0259
06-04-2015
IN RE ISAAC S.
COUNSEL Maricopa Public Advocate's Office, Phoenix By Ellen Edge Katz Counsel for Appellant Maricopa County Attorney's Office, Phoenix By Amanda M. Parker Counsel for Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. JV 173851
The Honorable Christine E. Mulleneaux, Judge Pro Tempore
AFFIRMED
COUNSEL Maricopa Public Advocate's Office, Phoenix
By Ellen Edge Katz
Counsel for Appellant
Maricopa County Attorney's Office, Phoenix
By Amanda M. Parker
Counsel for Appellee
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Donn Kessler joined. THUMMA, Judge:
¶1 Isaac S. challenges the superior court's imposition of a $500 assessment in this delinquency matter pursuant to Arizona Revised Statutes (A.R.S.) section 12-116.07 (2015). Because the statute mandates the imposition of the assessment in this case, the order is affirmed.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. The applicable statute in effect at the time of the charged offenses was A.R.S. § 13-824(A) (2012), which was renumbered as A.R.S. §12-116.07(A) later in 2012. See 2012 Ariz. Legis. Serv. Ch. 96, § 6 (West). Because the two provisions are textually identical, this decision references A.R.S. § 12-116.07(A) throughout.
FACTS AND PROCEDURAL HISTORY
¶2 Isaac was charged with two counts of sexual conduct with a minor under 15 years of age, Class 2 felonies, committed in March 2012. As part of the investigation, a forensic medical examination was performed on the victim and forensic interviews were conducted.
¶3 Isaac later entered into a written plea agreement in which he pleaded delinquent to Count 1, as amended, attempted sexual conduct with a minor under 15 years of age, a Class 3 felony, in violation of A.R.S. §§ 13-1405, -1401, with Count 2 being dismissed. The plea agreement contained the following term:
The court may determine that A.R.S. § 12-116.07 applies. 12-116.07 states that, "In addition to any other assessment or restitution, if a person is convicted of or adjudicated delinquent for a dangerous crime against children as defined in section 13-705 or sexual assault, the court shall order the person to pay an assessment of five hundred dollars."After an appropriate colloquy, the superior court accepted the plea and placed Isaac on probation.
¶4 Isaac asked the superior court not to impose the $500 assessment "because analysis demonstrates the legislature did not intend for [A.R.S. § 12-116.07] to apply to the delinquent offense of attempted sexual misconduct with a minor," a request the State opposed. After briefing and oral argument, the superior court found that A.R.S. § 12-116.07 applied, that the assessment was "civil and non-punitive" and imposed the $500 assessment.
¶5 This court has jurisdiction over Isaac's timely appeal from the imposition of the assessment pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1) and Arizona Rules of Procedure for the Juvenile Court 103-04.
DISCUSSION
I. The Assessment Statute.
¶6 The assessment statute at issue here states:
In addition to any other assessment or restitution, if a person is convicted of or adjudicated delinquent for a dangerous crime against children as defined in § 13-705 or sexual assault, the court shall order the person to pay an assessment of five hundred dollars.A.R.S. § 12-116.07(A). "The assessment shall not be waived and is not subject to a surcharge," id., and is "for the purpose of defraying the cost of investigations pursuant to [A.R.S.] § 13-1414," A.R.S. § 12-116.07(B). Section 13-1414, in turn, directs the county to pay for any "medical or forensic interview . . . arising out of the need to secure evidence that a person has been the victim of a dangerous crime against children as defined in [A.R.S.] § 13-705 or a sexual assault." A.R.S. § 13-1414; see also State v. Haverstick, 234 Ariz. 161, 167 ¶ 14, 318 P.3d 877, 883 (App. 2014).
¶7 The superior court correctly found that the purpose of A.R.S. § 12-116.07(A) is not penal; it is a civil, non-punitive statute designed "to help ensure that the agencies responsible for investigating sex crimes against children have the funds to secure crucial evidence." Haverstick, 234 Ariz. at 167 ¶ 14, 318 P.3d at 883. Because the statute is not penal, the court need not address the parties' competing arguments about the application of a "rule of lenity." See State v. Johnson, 171 Ariz. 39, 42, 827 P.2d 1134, 1137 (App. 1992) (stating "rule of lenity . . . applies to cases involving penal statutes susceptible to different interpretations") (emphasis added); cf. A.R.S. § 1-211(C) (setting forth rules of construction for penal statutes). Similarly, Isaac has not shown how the imposition of this assessment constitutes a prohibited "civil disabilit[y] ordinarily resulting from a conviction." A.R.S. § 8-207(A).
¶8 Given the nature of his delinquency adjudication, Isaac is correct in arguing the "statutory reference to sexual assault is not a basis to apply the assessment to his case." The parties, however, take differing positions on whether Isaac's delinquency adjudication was for an offense that is "a dangerous crime against children as defined in § 13-705." A.R.S. § 12-116.07(A). Section 13-705 lists offenses defined as "dangerous crime[s] against children," including attempted "[s]exual conduct with a minor" "under fifteen years of age." A.R.S. § 13-705(P)(1)(e); see also A.R.S. § 13-705(O) (addressing "preparatory offense[s]"). The basis for the dispute here is that a delinquency adjudication, unlike an adult criminal conviction, cannot be designated a dangerous crime against children. Stated differently, the sentencing enhancements in A.R.S. § 13-705 applicable in criminal court for convictions for dangerous crimes against children do not apply in juvenile court for delinquency adjudications for such offenses. See In re Casey G., 223 Ariz. 519, 520 ¶ 3, 521 ¶ 7, 224 P.3d 1016, 1017, 1018 (App. 2010) (holding dangerous crime against children designation of an offense, resulting in "enhanced prison sentences in the adult context," is not authorized by A.R.S. § 13-705 for "delinquency adjudications for acts that otherwise would constitute dangerous crimes against children if committed by an adult").
¶9 The assessment accounts for the difference between criminal and juvenile matters by using "convicted of or adjudicated delinquent for" certain offenses. A.R.S. § 12-116.07(A); accord In re Casey G., 223 Ariz. at 521 ¶ 6, 224 P.3d at 101 ("Our legislature has repeatedly recognized the distinction between a delinquency adjudication and a criminal conviction."). Because a delinquency adjudication in juvenile court cannot be designated a dangerous crime against children, Isaac argues the assessment statute is ambiguous. Isaac argues that "to give the required full and non-trivial meaning to all of the words of the statute," it should be read to mean "if a person is convicted of a dangerous crime against children as defined in § 13-705 or . . . is adjudicated delinquent for sexual assault, the court shall order the person to pay an assessment of five hundred dollars." By this construction, the assessment statute would only apply in juvenile matters to sexual assault adjudications, and would not apply to Isaac.
¶10 In construing A.R.S. § 12-116.07, this court looks to the language of the statute, which sets forth "'the best and most reliable index of a statute's meaning . . . and, when the language is clear and unequivocal, it is determinative of the statute's construction.'" State ex rel. Montgomery v. Harris, 234 Ariz. 343, 344 ¶ 8, 322 P.3d 160, 161 (2014) (quoting State v. Hansen, 215 Ariz. 287, 289 ¶ 7, 160 P.3d 166, 168 (2007)). "Words and phrases shall be construed according to the common and approved use of the language." A.R.S. § 1-213. "Statutes shall be liberally construed to effect their objects and to promote justice." A.R.S. § 1-211(B). Statutes and rules are "to be given such an effect that no clause, sentence or word is rendered superfluous, void, contradictory, or insignificant." Marlar v. State, 136 Ariz. 404, 412, 666 P.2d 504, 512 (App. 1983); see also State v. Kozlowski, 143 Ariz. 137, 138, 692 P.2d 316, 317 (App. 1984) (noting Legislature does not create statutes containing provisions that are redundant or trivial). Statutory construction and interpretation are issues of law reviewed de novo. Haag v. Steinle, 227 Ariz. 212, 214 ¶ 9, 255 P.3d 1016, 1018 (App. 2011). II. The $500 Assessment Mandated By A.R.S. § 12-116.07 Applies.
¶11 Isaac argues that because he could not be found delinquent of an offense designated a dangerous crime against children, the assessment in A.R.S. § 12-116.07 cannot apply to him. The State, however, did not seek to designate Isaac's offense as a dangerous crime against children under A.R.S. § 13-705. Instead, the State sought to apply the assessment statute (A.R.S. § 12-116.07) because, as described above, Isaac's offense is one of the many offenses included in the definition of "dangerous crime against children." A.R.S. § 13-705(P)(1)(e), (O). Thus, in this case, the State's request and the ruling by the superior court did not run afoul of or otherwise implicate In re Casey G.
¶12 To the extent that In re Casey G. has any application, that opinion was issued in February 2010 and, as noted above, the Legislature enacted the current version of the assessment statute in 2012. As Isaac notes, the Legislature is presumed to know and account for existing case law when it enacts a statute. See Daou v. Harris, 139 Ariz. 353, 357, 678 P.2d 934, 938 (1984). Accordingly, in enacting A.R.S. § 12-116.07, the Legislature is presumed to know that offenses enumerated in A.R.S. § 13-705(P) resulting in delinquency adjudications cannot be designated dangerous crimes against children. Similarly, however, nothing in A.R.S. § 12-116.07 or any other statute suggests that a juvenile cannot be adjudicated delinquent of the acts that constitute the offenses listed in A.R.S. § 13-705(P), such as attempted sexual conduct with a minor under the age of 15. See A.R.S. §§ 13-1405, -1401. In enacting A.R.S. § 12-116.07, which references both criminal convictions and delinquency adjudications, the Legislature wrote the assessment statute to account for the nature of the defined offenses regardless of the age of the offender or the court where the offender was adjudicated.
¶13 Given that the express purpose of the assessment statute is to defray costs associated with medical or forensic interviews from victims of specified offenses, the Legislature's reference to A.R.S. § 13-705 within A.R.S. § 12-116.07 simply lists those offenses for which the assessment is mandatory. And the inclusion of "or adjudicated delinquent for" expressly provides for imposition of the assessment if a juvenile commits an offense defined in A.R.S. § 13-705 or sexual assault to make plain that the assessment applies to juvenile adjudications. See State v. Zinsmeyer, 222 Ariz. 612, 624 ¶ 31, 218 P.3d 1069, 1081 (App. 2009) (court presumes Legislature expresses what it intends), overruled on other grounds by State v. Bonfiglio, 231 Ariz. 371, 295 P.3d 948 (2013). To interpret the statute as Isaac urges, a 17-year old committing the same offense could be assessed if found guilty in criminal court, but not if found delinquent in juvenile court. Particularly given the statutory language used, Isaac has not shown how the fee assessment statute properly could be construed in such a manner. See Lake Havasu City v. Mohave Cnty., 138 Ariz. 552, 557, 675 P.2d 1371, 1376 (App. 1983).
¶14 Contrary to Isaac's argument, the inclusion of sexual assault in A.R.S. § 12-116.07 does not create ambiguity. Sexual assault may or may not be a dangerous crime against children depending upon the victim's age. See A.R.S. § 13-705(P)(1)(c); A.R.S. § 13-1406(A). Regardless of the victim's age, however, the Legislature could properly determine that forensic or medical interviews would follow from any sexual assault, resulting in a need for the assessment. See A.R.S. § 12-116.07(B) (noting assessment is to defray cost of medical and forensic interviews under A.R.S. § 13-1414). Moreover, Isaac has not shown that it is dispositive that the Legislature singled out sexual assault (regardless of the victim's age) from other offenses where the victim's age is determinative.
¶15 Finally, Isaac was not denied fair notice of possible sanctions in violation of his due process rights. Isaac expressly agreed in his plea agreement that the court could impose the assessment. Even apart from the terms of the plea agreement, Isaac has not shown that A.R.S. § 12-116.07 failed to give him fair warning that he could be required to pay the $500 assessment for his delinquency adjudication for attempted sexual conduct with a minor under 15. Although A.R.S. § 12-116.07 could be worded differently, due process "'requires neither perfect notice, absolute precision nor impossible standards. It requires only that the language of a statute convey a definite warning of the proscribed conduct.'" State v. Coulter, 236 Ariz. 270, 274 ¶ 6, 339 P.3d 653, 657 (App. 2014) (citation omitted). "The fact that a legislative body could have crafted a more precise and clear statute does not mean the statute enacted" violates due process. Id.
CONCLUSION
¶16 Isaac has not shown that the $500 assessment imposed was not authorized by A.R.S. § 12-116.07 or constitutes a denial of his due process rights. Accordingly, the superior court's order is affirmed.