Opinion
No. 2 CA-CR 2017-0328-PR
01-30-2018
THE STATE OF ARIZONA, Respondent, v. JOHNATHAN SCOTT LIGHT, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Andrea L. Kever, Deputy County Attorney, Phoenix Counsel for Respondent Bruce Peterson, Maricopa County Office of the Legal Advocate By Frances J. Gray, Deputy Legal Defender, Phoenix Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Maricopa County
Nos. CR2002019896, CR2009006827001DT, CR2013003403001DT
The Honorable Bruce R. Cohen, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL William G. Montgomery, Maricopa County Attorney
By Andrea L. Kever, Deputy County Attorney, Phoenix
Counsel for Respondent Bruce Peterson, Maricopa County Office of the Legal Advocate
By Frances J. Gray, Deputy Legal Defender, Phoenix
Counsel for Petitioner
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. ECKERSTROM, Chief Judge:
¶1 Johnathan Light petitions for review of the trial court's order, after an evidentiary hearing, denying relief on his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. In his petition below, he argued, inter alia, that he is "actually innocent" of failure to register as a sex offender, notwithstanding his convictions for registration offenses charged in 2002, 2009, and 2013, because his 1991 conviction for attempted sexual abuse does not subject him to Arizona's sex-offender registration requirements. We grant review but, for the following reasons, we deny relief.
Factual and Procedural Background
¶2 In October 1991, Light was convicted, pursuant to a plea agreement, of attempted sexual abuse, an "open-end" class six felony, and placed on a three-year term of probation. Light's plea agreement stated, as a special condition "imposed by statute," that he was required to register as a sex offender "[p]ursuant to A.R.S. § 13-3821." But the judgment entered against Light did not include an order that he register, and the requirement was not among the probation conditions imposed. After Light successfully completed his probation, the conviction for attempted sexual abuse was designated as a class one misdemeanor, and, in 1996, he obtained an order setting aside the conviction and dismissing the charge, "except as may be specifically excluded by" A.R.S. § 13-907.
At the time of his offense, A.R.S. § 13-1404(A) defined sexual abuse as "intentionally or knowingly engaging in sexual contact with any person fourteen or more years of age without consent of that person or with any person who is under fourteen years of age if the sexual contact involves only the female breast." 1990 Ariz. Sess. Laws, ch. 384, § 1. "Sexual contact," in turn, was defined by A.R.S. § 13-1401(2) as "any direct or indirect fondling or manipulating of any part of the genitals, anus or female breast." 1985 Ariz. Sess. Laws, ch. 364, § 16. Section 13-1404(B) provided that sexual abuse was a class 5 felony "unless the victim is under fourteen years of age in which case sexual abuse is a class 3 felony punishable" as a dangerous crime against children. 1990 Ariz. Sess. Laws, ch. 384, § 1.
In 1996, § 13-907(A) provided that persons convicted of a felony offense who had successfully completed probation could apply to the sentencing judge "to have the judgment of guilt set aside," and that, in granting such an application, the judge
shall set aside the judgment of guilt, dismiss the accusations or information and order that the person be released from all penalties and disabilities resulting from the conviction . . . except that the conviction may be used as a conviction if such conviction would be admissible had it not been set aside and may be pleaded and proved in any subsequent prosecution of such person by the state or any of its subdivisions for any offense.1992 Ariz. Sess. Laws, ch. 330, § 9. Subsection B of the statute excluded its application to "a person convicted of a criminal offense . . . [,] 3. In violation of chapter 14 of this title [, or] 4. In which the victim is a minor under fifteen years of age." Id. In 2001, these exceptions were amended to eliminate the reference to chapter 14 and to substitute, in its stead, criminal offenses "[f]or which the person is required or ordered by the court to register pursuant to section 13-3821." 2001 Ariz. Sess. Laws, ch. 109, § 1.
¶3 Light later pleaded guilty and was convicted of failure to register as a sex offender in 2003, 2010, and 2014. On May 7, 2014, he filed a timely notice of post-conviction relief in Maricopa Superior Court cause number CR2013003403001DT and untimely notices, alleging non-precluded claims of actual innocence, see Ariz. R. Crim. P. 32.1(h), in Maricopa Superior Court cause numbers CR2002019896 and CR2009006827001DT.
¶4 In his petition for post-conviction relief, Light argued he "was never required to register as a sex offender for his 1991 conviction . . . before that conviction was dismissed in 1996." He first maintained he was not required to register in 1991 because registration was neither ordered at sentencing nor required under § 13-3821, which then required sex offender registration of those "convicted of a violation of chapter 14 or 35.1 of [title 13]" without reference to attempts to commit those offenses. 1985 Ariz. Sess. Laws, ch. 364, § 32. Relying on State v. Peek, 219 Ariz. 182 (2008), in which our supreme court concluded similar language in a probation statute had not encompassed attempted violations of chapter 14, he argued "the plain language" of § 13-3821 did not require him to register as a sex offender "when he was convicted and sentenced on October 28, 1991."
¶5 Light next addressed the effect of a 1995 amendment to § 13-3821 that required registration by those convicted of a violation "or attempted violation" of specified statutes including "[s]exual abuse pursuant to section 13-1404 if the victim is under fifteen years of age." 1995 Ariz. Sess. Laws, ch. 257, § 3. Citing State v. Noble, 171 Ariz. 171, 178 (1992) and State v. Henry, 224 Ariz. 164, ¶ 26 (App. 2010), Light acknowledged that "retroactive application of changes to the sex offender registration requirements remains the law in Arizona." But he nonetheless maintained he was not required to register pursuant to the 1995 amendment because there was no record evidence that he had been convicted of attempted sexual abuse involving a victim under the age of fifteen. According to Light, the classification of his offense and the disposition ordered established only that he was "convicted of attempted sexual abuse of a victim over the age of fourteen and under the age of eighteen." (Emphasis omitted).
¶6 Light next argued that, because he had obtained an order setting aside his conviction in 1996, before the legislature enacted any further changes to § 13-3821, any "subsequent amendments to the registration statute[, after 1996,] did not apply to him." According to Light, "Even if the legislature subsequently expanded the scope of the sex offender registration statute to include Light's offense, the State could not retroactively impose upon Light a requirement that he register as a sex offender because the conviction was dismissed along with the associated penalties and statutory consequences."
¶7 The state responded by challenging the procedural posture of Light's cases and by asserting he had been required to register in 1991 based on language in his plea agreement. It also challenged Light's reliance on Peek, because that case had involved a different statute. It suggested the trial court should instead follow the reasoning in State v. Lammie, 164 Ariz. 377 (App. 1990), and State v. Cory, 156 Ariz. 27 (App. 1987), cases in which this court had held, before Light's conviction, that the sex offender registration requirements for "a violation of chapter 14," in the version of § 13-3821 then in effect, 1985 Ariz. Sess. Laws, ch. 364, § 32, included attempts to commit those crimes. According to the state, although the court in Peek "did not approve Lammie and Cory, it also did not overrule them."
The court in Peek noted that it was addressing "a penal statute," while, in contrast, the court in Cory had "emphasized . . . the regulatory purpose of the sex offender registry." Peek, 219 Ariz. 182, ¶ 16. But our supreme court also criticized the reasoning in Lammie and Cory, stating those cases were "unpersuasive" because they "allowed an interpretation at odds with the plain language of the statute." Id. ¶¶ 16-17.
¶8 In a preliminary order, the trial court found Light had stated a colorable claim for relief as to each cause number and was entitled to an evidentiary hearing. But the court clarified that "[f]rom [its] perspective, the 1996 dismissal of the 1991 conviction is a nullity as it relates to the issues herein." According to the court's order, "[e]ven if the conviction were set aside, it would not negate the requirement to register as a sex offender, if that obligation had been imposed in 1991, whether by order of the court or operation of law." Citing Rule 32.1(h), the court wrote, "If [Light] was under such a requirement, he now has no legal basis to seek post-conviction relief under any of the three cases now before the court. If he was not so required, no reasonable fact-finder would have found defendant guilty of the failure to register offense[s]." Thus, according to the court, "the entire issue centers around whether registration was part of his 1991 sentence."
¶9 After an evidentiary hearing, the trial court denied relief in a lengthy under-advisement ruling. Consistent with its preliminary order and the arguments of the parties, the court focused on whether Light "was under a legal obligation to register as a sex offender from the 1991 conviction," either because "it was a term of [his] sentence or by operation of law at the time of the conviction." The court reaffirmed its earlier determination regarding the 1996 order setting aside Light's 1991 conviction, finding it "to be a non-event as to the issues to be decided herein."
¶10 The trial court implicitly rejected the state's argument that Light was required to register based solely on language in his plea agreement, and it found registration had neither been ordered by the court nor made a term of Light's probation. The court also found "plausible" Light's testimony that he had registered in 1991 only because his probation officer had told him registration was required, but that he had believed that requirement terminated with his probation.
¶11 Having found a registration requirement had not been imposed at sentencing, the trial court considered whether Light was required to register as a sex offender in 1991 "by operation of law." Specifically, the court considered the legal issue of whether the version of § 13-3821 in effect in 1991, which required registration by "[a] person who has been convicted of a violation of chapter 14 or 35.1 of [title 13]," 1985 Ariz. Sess. Laws, ch. 364, § 32, required Light to register based on his conviction for attempted sexual abuse.
¶12 Ultimately, the trial court denied relief, stating, "The law that existed in 1991 . . . as interpreted under Lammie and Cory required then and to this day that [Light] register as a sex offender, even if not mandated under the 1991 sentencing terms entered by the Court." But the court also made clear that it had reservations about relying on Lammie and Cory in light of our supreme court's strong criticism of those cases in Peek. The court wrote,
This court is in agreement with the 2008 Peek decision and believes that the Lammie and Cory courts expanded . . . Section 13-3821 beyond its clear language. Had the legislature intended attempted offenses to fall under the mandatory sex offender registration provisions, it would have so stated (as it later did in 1995). However, to the best of this court's knowledge, Lammie and Cory still constitute binding law. If there is a review of this holding, it is this Court's hope that the reviewing court will now apply a Peek analysis on whether Lammie and Cory [are] good law, particularly since this court is relying so heavily on what might be the flawed holdings in those cases.This petition for review followed.
Discussion
¶13 On review, Light contends the trial court erred "in concluding that . . . § 13-3821 as it existed in 1991" required Light to register as a sex offender. Relying on Peek and State v. Herrera, 131 Ariz. 35, 36-37 (1981), he argues, as he did below, that "the Cory/Lammie interpretation of A.R.S. § 13- 3821 . . . [is] contrary to established Arizona Supreme Court statutory analysis . . . [and] the plain language chosen by the legislature." He asks that we "relieve him from the burden of three wrongful convictions by clarifying that he was not required to register as a sex offender for his 1991 conviction." In response, the state maintains, as it did below, that Light was required to register as a sex offender in 1991 because, "although the Arizona Supreme Court [in Peek] did not approve of Lammie and Cory, it did not overrule them."
¶14 We review a trial court's denial of post-conviction relief for an abuse of discretion and will affirm that ruling if it is legally correct for any reason. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Our review of the court's factual findings after an evidentiary hearing "is limited to a determination of whether those findings are clearly erroneous"; we "view the facts in the light most favorable to sustaining the lower court's ruling, and we must resolve all reasonable inferences against the defendant." State v. Sasak, 178 Ariz. 182, 186 (App. 1993); see also State v. Fritz, 157 Ariz. 139, 141 (App. 1988) (trial court sole arbiter of witness credibility in post-conviction proceeding). Although we defer to a trial court with respect to its findings of fact, we review its legal conclusions de novo. State v. Denz, 232 Ariz. 441, ¶ 6 (App. 2013).
¶15 We defer to the trial court's finding that Light was not ordered at sentencing to register as a sex offender, as well as its finding that Light testified plausibly that he initially registered only because his probation officer insisted that he do so. We decline the court's invitation to consider the legal issue of whether Light was otherwise required to register in 1991 by operation of the law then in effect, and, specifically whether "Lammie and Cory still constitute binding law," notwithstanding our supreme court's criticism of those cases in Peek. We need not answer those questions to conclude the court correctly denied relief, albeit for reasons other than those articulated in its ruling.
¶16 We cannot affirm the trial court's reasoning because it erred in concluding that "[t]he validity of the 2002, 2009 and 2013 case convictions all stand or fail on the determination of the 1991 requirement or lack thereof to register as a sex offender." As Light originally acknowledged, Arizona courts have held that § 13-3821 applies retroactively. See Noble, 171 Ariz. at 178 (concluding § 13-3821 "is regulatory in nature and not an unconstitutional ex post facto law when applied to these defendants convicted after the enactment of the statute for offenses predating the enactment of the statute"); Henry, 224 Ariz. 164, ¶¶ 21-26, nn.6 & 11 (construing § 13-3821, as amended through 2008, as regulatory).
¶17 The trial court correctly concluded that a registration requirement may be imposed either by an express order or by operation of law at the time of sentencing. But because we have concluded that § 13-3821 constitutes a "nonpunitive civil regulation," Henry, 224 Ariz. 164, ¶ 26, a person may also be required to register as a sex offender based on a statutory amendment passed after he was convicted and sentenced. See id. ¶¶ 14, 24. For example, in Henry, we found no constitutional infirmity in a 2001 amendment that extended current registration requirements to those "convicted of certain sexual offenses under Arizona laws in effect before 1978," or in its application to Henry, who had been convicted of rape in 1974, long before the current requirements were in effect. 224 Ariz. 164, ¶¶ 2, 14, 24, citing 2001 Ariz. Sess. Laws, ch. 109, § 2.
As this court has explained, when sex-offender registration is a matter within the court's discretion, it must be included in the pronouncement of judgment, and a "complete and valid" judgment may not later be modified to impose a discretionary registration requirement. State v. Serrano, 234 Ariz. 491, ¶¶ 6, 9, 11 (App. 2014), quoting Ariz. R. Crim. P. 26.16(a). But, in contrast, "when a requirement . . . follow[s] automatically from the conviction, such as when the choice to impose it was made by the legislature rather than the judge at sentencing," its imposition "is not part of the judicial function and need not have expression in the sentence and judgment." Maciel v. Cate, 731 F.3d 928, 934 (9th Cir. 2013) (California court reasonably concluded mandatory registration requirement imposed by statute was implicit in judgment); but cf. 2000 Op. Ariz. Att'y Gen. I00-030, *2 (opining "offenders who were previously required to register" by operation of law, "but are not required to register under current law, are no longer statutorily required to register"). --------
¶18 Thus, the critical question in this matter is not whether Light was required to register in 1991, when he committed and was sentenced for attempted sexual abuse, but whether, because of that previous conviction, he had been required to register when he was charged with registration offenses in 2002, 2009, and 2013. Light may be correct that, if the 1991 judgment afforded insufficient evidence that his victim was under the age of fifteen, he would not have been required to register by virtue of the 1995 amendment to § 13-3821. But since 1998—well before any of Light's convictions for failure to register—§ 13-3821 has required registration for an attempted sexual abuse "if the victim is under eighteen years of age." See § 13-3821(A)(3); 1998 Ariz. Sess. Laws, ch. 291, § 2.
¶19 Light conceded in his petition for post-conviction relief that the victim of his crime was under the age of eighteen; his only challenge to application of the 1998 amendment was that it occurred after his 1991 conviction had been set aside pursuant to § 13-907. But the trial court concluded the 1996 order setting aside Light's conviction is a "nullity" with respect to any obligation to register, and Light has not challenged that determination on review. Accordingly, the issue is waived. See Ariz. R. Crim. P. 32.9(c)(4)(D) ("A party's failure to raise any issue that could be raised in the petition or cross-petition for review constitutes a waiver of appellate review of that issue.").
Disposition
¶20 Based on the record before us, Light has been required to register as a sex offender since August 21, 1998, the effective date of the 1998 amendments to § 13-3821. Accordingly, Light has failed to establish that the trial court abused its discretion in denying relief on his claim that he was actually innocent of his convictions in Maricopa County cause numbers CR2002019896, CR2009006827001DT, and CR2013003403001DT. Although we grant review, we deny relief.