Opinion
No. 1 CA-CR 19-0148 PRPC
02-11-2020
STATE of Arizona, Respondent, v. Robert Stephen POTTER, Petitioner.
Maricopa County Attorney's Office, Phoenix, By Jeffrey R. Duvendack, Counsel for Respondent Robert Stephen Potter, Winslow, Petitioner
Maricopa County Attorney's Office, Phoenix, By Jeffrey R. Duvendack, Counsel for Respondent
Robert Stephen Potter, Winslow, Petitioner
Judge Diane M. Johnsen delivered the opinion of the Court, in which Presiding Judge Kenton D. Jones and Judge Randall M. Howe joined.
JOHNSEN, Judge:
¶1 Robert Stephen Potter petitions for review from the dismissal of his petition for post-conviction relief. Potter argues a statutory amendment shifting the burden of proof for self-defense enacted after he committed the offense but before he pled guilty requires remand for resentencing. We have considered Potter's petition for review and, for the reasons that follow, grant review but deny relief.
FACTS AND PROCEDURAL BACKGROUND
¶2 In August 2005, Potter killed a man after the man's wife hired him to do so. At the time, Arizona Revised Statutes ("A.R.S.") section 13-205(A) (2005) required a defendant who asserted self-defense to prove the defense by a preponderance of the evidence. Eight months after the murder, our legislature amended § 13-205(A) to require that, when the defendant presents some evidence of justification, including self-defense, the State must prove beyond a reasonable doubt that the defendant did not act with justification. 2006 Ariz. Sess. Laws, ch. 199 (2d Reg. Sess.); see A.R.S. § 13-404(A) (2020) (self-defense as justification).
Absent material revision after the date of an alleged offense, we cite the current version of a statute or rule.
¶3 In November 2006, the State indicted Potter on charges of first-degree murder and conspiracy to commit first-degree murder. Potter pled not guilty and filed a notice identifying alibi and insufficient evidence as defenses he might raise at trial. See Ariz. R. Crim. P. 15.2(b)(1). He did not identify self-defense or justification as possible defenses.
¶4 In March 2008, Potter pled guilty to second-degree murder pursuant to a plea agreement under which he would receive a prison term of 16 to 22 years. The superior court sentenced him to the aggravated term of 22 years' imprisonment. Both in his interview with the probation department in preparation for sentencing and at the sentencing hearing itself, Potter claimed he killed the victim in self-defense. Potter said he intended only to warn the victim of his wife's plot but that when he tried to do so, the victim became enraged and Potter killed him in a panic.
¶5 In September 2009, a year and a half after Potter pled guilty, the legislature enacted Senate Bill 1449, expressing its intent that the 2006 change in the burden of proof for justification defenses would apply retroactively to a specified subset of cases. Senate Bill 1449 stated:
Section 1. Applicability
Laws 2006, chapter 199 applies retroactively to all cases in which the defendant did not plead guilty or no contest and that, as of April 24, 2006, had not been submitted to the fact finder to render a verdict.
Sec[tion] 2. Purpose
The purpose of this act is to clarify that the legislature intended to make Laws 2006, chapter 199 retroactively applicable to all cases in which the defendant did not plead guilty or no contest and that were pending at the time the bill was signed into law by the governor on April 24, 2006, regardless of when the conduct underlying the charges occurred.
2009 Ariz. Sess. Laws, ch. 190, §§ 1-2 (1st Reg. Sess.); see State v. Montes , 226 Ariz. 194, 198, ¶ 19, 245 P.3d 879, 883 (2011) (legislature acted within its power in enacting S.B. 1449).
¶6 In 2018, Potter initiated a proceeding for post-conviction relief in which he claimed his trial attorney was ineffective by failing to apprise him of the changes in the law concerning self-defense while his case was pending. Potter asserted he did not learn of the 2006 amendment or the 2009 retroactivity provision until 2017 and claimed he would not have pled guilty if his attorney had explained to him the state of justification law. Potter separately argued that the 2006 and 2009 measures effected a significant change in the law that independently entitled him to relief. See Ariz. R. Crim. P. 32.1(g).
¶7 The superior court accepted Potter's untimely filing, but then, after receiving briefing, dismissed his petition. The court reasoned that because the 2009 retroactivity provision was enacted after he entered his plea, Potter did not state a colorable claim that his attorney was ineffective for failing to advise him about it at that time. Potter then moved for reconsideration, arguing that the 2006 change actually applied retroactively to his case. After the court denied his motion without comment, Potter timely sought review. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. § 13-4239(C), (G) (2020).
DISCUSSION
¶8 The general rule is that when, as here, a new criminal statute bears upon conduct, it will apply only to offenses committed after it is enacted. Garcia v. Browning , 214 Ariz. 250, 253, ¶ 14, 151 P.3d 533, 536 (2007), superseded in part by statute , 2009 Ariz. Sess. Laws, ch. 190, as recognized in Montes , 226 Ariz. 194, 245 P.3d 879 ; see also A.R.S. § 1-244 (2020). Under that rule, the 2006 shift in the burden of proof would not apply here because Potter committed his offense in 2005. Potter's petition for review, however, argues that the 2009 legislation mandated that the 2006 change to the burden of proof be retroactively applied to his case. See Ariz. R. Crim. P. 32.1(g) (significant change in law).
¶9 We review questions of statutory interpretation de novo . State v. Holle , 240 Ariz. 300, 302, ¶ 8, 379 P.3d 197, 199 (2016). The text of an enactment is the most reliable indicator of its meaning. Id. at ¶ 11. When the words of a statute are clear and unambiguous, we need not resort to other methods of statutory interpretation to determine the legislature's intent because its intent is readily discernable from the face of the statute. State v. Christian , 205 Ariz. 64, 66, ¶ 6, 66 P.3d 1241, 1243 (2003).
¶10 The operative portion of the 2009 measure stated that the 2006 change "applies retroactively to all cases in which the defendant did not plead guilty or no contest and that, as of April 24, 2006, had not been submitted to the fact finder to render a verdict." 2009 Ariz. Sess. Laws, ch. 190, § 1. Potter asserts that, properly read, the measure applied the 2006 amendment to cases that fall into either of two groups: (1) cases (like his) in which the defendant did not plead guilty or no contest before April 2006 and (2) other cases that were not submitted to the fact finder before April 2006. Potter argues that any other construction of the 2009 measure improperly distinguishes between convictions obtained by pleas after April 2006 and those obtained by verdicts after April 2006. He contends convictions in both groups are fully interchangeable and the law should treat them the same.
Potter cites a memorandum decision of this court, State v. Parker , 1 CA-CR 14-0213 PRPC, 2016 WL 5462036 (Ariz. App. Sept. 29, 2016) (mem. decision), for the proposition that the 2006 change applied to "all cases" adjudicated by plea or verdict before April 24, 2006. That case does not support Potter's interpretation of the statute. The defendant there did not plead guilty but was tried by a jury. Parker , 2016 WL 5462036, at *1, ¶ 5. In any event, in describing the 2009 retroactivity measure, we stated, "The legislature ... chose to make the changes retroactive to ‘all cases’ in which the defendant did not enter a plea of guilty or no contest and which had not been submitted to the factfinder as of April 24, 2006." Id. at *3, ¶ 11.
¶11 Potter's construction of the 2009 measure, however, would make the clause excepting cases resolved by pleas redundant because, as he interprets the provision, retroactivity would apply to all cases not submitted to the fact finder before April 2006 (whether resolved by plea or by verdict). When we construe a legislative measure, we must, if possible, give effect to every word, not merely select words. Cain v. Horne , 220 Ariz. 77, 80, ¶ 10, 202 P.3d 1178, 1181 (2009) ("Each word, phrase, clause, and sentence must be given meaning so that no part will be void, inert, redundant, or trivial." (citation omitted)).
¶12 Contrary to Potter's argument, the 2009 measure rendered the 2006 change applicable to cases that meet both of the following two criteria: (1) the defendant must not have pled guilty or no contest and (2) the case must not have been submitted to the fact finder as of April 24, 2006. Because the measure therefore excluded all cases in which the defendant pled guilty (regardless of the date), it did not apply to Potter's case.
¶13 Although Potter contends our construction of the 2009 enactment diminishes the importance of convictions garnered through plea agreements, the legislature has the power to draw distinctions as long as it does not do so on an impermissible basis. Cf. City of Tucson v. Pima County , 199 Ariz. 509, 518, ¶ 30, 19 P.3d 650, 659 (App. 2001) (applying rational-basis test to legislation). Potter also contends section 2 of the 2009 measure, titled "Purpose," supports his construction of the provision. But section 2 contains no operative language and therefore cannot alter the otherwise unambiguous meaning of section 1. See Montes , 226 Ariz. at 198, ¶ 18, 245 P.3d at 883 (section 2 of the 2009 measure contains no operative language); Sakrison v. Pierce , 66 Ariz. 162, 172, 185 P.2d 528 (1947) (legislative policy statements are considered only when necessary to interpret ambiguous operative provisions).
¶14 As noted, supra ¶ 9, when the text of an enactment is clear and unambiguous, we do not resort to other methods of statutory interpretation. State ex rel. Romley v. Hauser , 209 Ariz. 539, 541, ¶ 10, 105 P.3d 1158, 1160 (2005). Although we have little doubt about the proper construction of the 2009 provision, legislative events preceding that enactment support our interpretation. A year after the 2006 amendment, the legislature passed a measure stating simply that the shift in the burden of proof "applies retroactively to all cases that, as of April 24, 2006, had not been submitted to the fact finder to render a verdict." S.B. 1302, 48th Leg., 1st Reg. Sess. (Ariz. 2007). The Governor vetoed that bill with a message expressing concern that it would allow "reopening of a large number of cases, including routine cases where a criminal has already pled guilty to assault or aggravated assault." Office of the Governor, Re: SB 1302: Self-Defense; Home Protection; Applicability 1-2 (2007). The Governor explained she had heard from prosecutors who were particularly concerned that if the 2006 amendment were applied retroactively, they would be "deluged by motions pursuant to Ariz. R. Crim. P. 32.1(g), which allows defendants who have pled guilty to crimes to file post-conviction relief proceedings when there has been a significant change in the law related to their conviction." Id. at 1.
¶15 The measure the legislature enacted in 2009 narrowed the scope of the 2007 bill; the 2009 measure granted retroactive application of the 2006 amendment not to all cases that were pending as of April 24, 2006, but to those pending as of that date in which the defendant did not plead guilty or no contest. The difference informs our conclusion that the 2009 measure simply did not apply to a defendant – such as Potter – who pled guilty.
CONCLUSION
¶16 For the reasons stated, the 2006 amendment did not apply to Potter's case. Because the superior court therefore properly dismissed Potter's petition for post-conviction relief, although we grant review of that decision, we deny relief.