Opinion
2 CA-CR 2024-0220-PR
11-20-2024
The State of Arizona, Respondent, v. Laurence Robert Annis, Petitioner.
Rachel Mitchell, Maricopa County Attorney By Robert E. Prather, Deputy County Attorney, Phoenix Counsel for Respondent Maricopa County Office of the Legal Advocate By Michelle DeWaelsche, Deputy Legal Advocate, Phoenix Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2020112025001DT The Honorable Roy C. Whitehead, Judge
Rachel Mitchell, Maricopa County Attorney By Robert E. Prather, Deputy County Attorney, Phoenix Counsel for Respondent
Maricopa County Office of the Legal Advocate By Michelle DeWaelsche, Deputy Legal Advocate, Phoenix Counsel for Petitioner
Presiding Judge Gard authored the decision of the Court, in which Judge Eckerstrom and Judge Kelly concurred.
MEMORANDUM DECISION
GARD, PRESIDING JUDGE
¶1 Laurence Annis seeks review of the trial court's order denying, in part, his petition for post-conviction relief filed under Rule 33, Ariz. R. Crim. P. We grant review, and because the trial court erred in concluding Annis's term of lifetime probation was legally imposed, we grant relief.
¶2 In August 2021, Annis pled guilty to two counts of attempted child molestation and one count of sexual conduct with a minor. The trial court sentenced Annis to a twenty-three-year prison term for sexual conduct with a minor. For each of Annis's attempt offenses, the court suspended the imposition of sentence and placed Annis on lifetime probation. Relevant to the issue raised in this petition for review, Annis's plea agreement stated that he had committed attempted child molestation "on September 9, 1993[,] through and including September 8, 1994." At the change-of-plea hearing, he pled guilty to "attempted molestation of a child . . . committed September 9th, 1993, through and including September 8th, 1994."
¶3 Annis sought post-conviction relief arguing that the term of lifetime probation imposed for that offense was illegal because, under State v. Peek, 219 Ariz. 182 (2008), lifetime probation was not authorized "for a preparatory sex offense during a portion of the time frame within which [the crime] was committed." He further argued that he had received ineffective assistance of trial counsel in failing to raise this issue and that two assessments imposed at sentencing were improper.
¶4 The trial court granted partial relief, amending its sentencing order to remove the assessments. However, it rejected Annis's probation claim, reasoning that "the plea agreement and the factual basis" for the offense "specified a date that is well before the period of time delineated in Peek" during which lifetime probation could not be imposed for attempted child molestation. The court also rejected Annis's claim of ineffective assistance. Annis unsuccessfully moved for rehearing, and this petition for review followed.
¶5 On review, Annis argues the trial court erred in rejecting his claim that the court illegally imposed a term of lifetime probation, as well as his related claim of ineffective assistance of counsel. Before 1994, Arizona sentencing law authorized lifetime probation for attempted child molestation. Id. ¶ 8. Effective January 1, 1994, however, the legislature removed attempted child molestation from the list of offenses for which a court could impose lifetime probation. See id. ¶¶ 9, 12. The legislature subsequently amended the statute to restore lifetime probation for attempted child molestation as of July 21, 1997, but any lifetime term of probation imposed for attempted child molestation committed between January 1, 1994, and July 20, 1997, is illegal. See id. ¶¶ 10, 20; 1997 Ariz. Sess. Laws, ch. 179, § 2.
¶6 The date range for one of Annis's convictions of attempted child molestation includes dates during which a court had no authority to impose lifetime probation and dates during which a court could legally impose such a term. He argues, as he did below, that this court's decision in State v. Dean, 226 Ariz. 47 (App. 2010), controls. In Dean, as here, the defendant pled guilty to attempted child molestation "alleged to have occurred within a range of dates that straddled the Peek period." 226 Ariz. 47, ¶¶ 2, 18. In light of Peek, the trial court reduced his probation term from lifetime to five years. Id. ¶ 4. On review, we determined it was the state's obligation to "pinpoint or, at least, narrow the time frame of the offense to the range of dates falling outside the Peek period" and it had failed to do so. Id. ¶ 20. We declined to "assume the offense was committed after the Peek period." We therefore affirmed the trial court's decision to reduce Dean's probation term. Id. ¶ 22.
¶7 The state argues Dean is distinguishable, asserting that the court there did not "issue a hard and fast rule stating that the partial occurrence of the dates of offense after Peek will place the entire offense under Peek" and instead arguing that "any date of offense before Peek will suffice to allow lifetime probation." Thus, it contends, because the date range in the plea agreement and factual basis included a date "when lifetime probation was permitted," it sufficiently pinpointed a date before the Peek period although "some of the offenses may have occurred after [it]."
¶8 We do not agree. The conviction in question was a single count of attempted child molestation that necessarily occurred on one occasion, not over time or continuously. See A.R.S. §§ 13-1410 ("A person commits molestation of a child by intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child who is under fifteen years of age."), 13-1001(A) (defining "attempt"). The plea agreement and factual basis do not support the conclusion that Annis necessarily committed the offense before January 1, 1994, and there is no basis for us to assume that to be the case. See Dean, 226 Ariz. 47, ¶ 20.
¶9 We therefore grant review and relief. We vacate the imposition of lifetime probation for Annis's conviction of attempted child molestation alleged to have occurred between September 9, 1993, and September 8, 1994, and we remand the case for further proceedings consistent with this decision.