State of Arizona v. Mark Dwayne Gannon ( 2011 )

FILED BY CLERK
IN THE COURT OF APPEALS MAR 31 2011
STATE OF ARIZONA
DIVISION TWO COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-SA 2011-0009
Petitioner, ) DEPARTMENT B
)
v. )
) OPINION
HON. JOHN S. LEONARDO, Judge of )
the Superior Court of the State of Arizona, )
in and for the County of Pima, )
)
Respondent, )
)
and )
)
MARK DWAYNE GANNON, )
)
Real Party in Interest. )
)
SPECIAL ACTION PROCEEDING
Pima County Cause No. CR20102680
JURISDICTION ACCEPTED; RELIEF GRANTED
Barbara LaWall, Pima County Attorney
By Jacob R. Lines Tucson
Attorneys for Petitioner
Robert J. Hirsh, Pima County Public Defender
By Brian X. Metcalf Tucson
Attorneys for Real Party in Interest
K E L L Y, Judge.
¶1 In this special action, the State of Arizona seeks relief from the respondent
judge‟s order compelling C.M., whom Mark Gannon had been convicted of molesting, to
submit to an interview by defense counsel in a separate criminal prosecution involving
another victim. The state maintains the respondent judge erred in concluding that C.M.
was no longer a victim within the meaning of the Victim‟s Bill of Rights (VBR) set forth
in the Arizona Constitution. We accept jurisdiction and, because we agree that C.M.
retains her victim‟s rights while Gannon is on probation, grant relief.
Facts and Procedure
¶2 Pursuant to a plea agreement, Gannon pled guilty in CR20074852 to
second-degree molestation of C.M., a child under fifteen years old. The trial court
suspended the imposition of sentence and placed Gannon on probation for a ten-year
period. Gannon was thereafter indicted in CR20102680 on multiple charges of sexual
abuse of, sexual conduct with, and molestation of a child under fifteen years old for acts
committed against a second victim, J.G.
¶3 Intending to call C.M. as a witness to present other-act evidence pursuant to
Rule 404(c), Ariz. R. Evid., in its case against Gannon for his abuse of J.G., the state filed
a “[n]otice of invocation of victim‟s constitutional rights,” asserting C.M.‟s rights under
article II, § 2.1(A) of the Arizona Constitution. In response, Gannon filed a motion to
compel a pre-trial interview of C.M., citing his rights to due process and a fair trial under
the United States and Arizona Constitutions. The trial court granted Gannon‟s motion to
compel C.M. to submit to an interview, concluding C.M.‟s “rights as a victim do not last
a lifetime” and that because CR20074852 had been “resolved upon [Gannon‟s] pleading
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guilty and subsequently being sentenced” and because “CR20074852 has no pending
appeal or other post[-]conviction matter,” C.M.‟s “right to refuse to be interviewed is no
longer in effect.” The state then filed this petition for special action.
¶4 We may accept special action jurisdiction “when there is no other means of
obtaining justice on the issue raised” and here “the state could not wait until after trial to
appeal . . . because the defense interview already would have taken place.” State ex rel.
Romley v. Hutt, 195 Ariz. 256, ¶ 5, 987 P.2d 218, 221 (App. 1999). Additionally,
“A.R.S. § 13-4437(A) and Rule 2(a)(2), Ariz. R. P. Spec. Actions, expressly authorize
victims to enforce their rights under the VBR in special action proceedings.” State v.
Nichols, 224 Ariz. 569, ¶ 2, 233 P.3d 1148, 1149 (App. 2010).
Discussion
¶5 We review de novo the questions of statutory interpretation raised in this
matter. See State v. Cheramie, 218 Ariz. 447, ¶ 8, 189 P.3d 374, 375 (2008). The VBR
provides “a victim of crime” with the right “[t]o refuse an interview, deposition, or other
discovery request by the defendant, the defendant‟s attorney, or other person acting on
behalf of the defendant.” Ariz. Const. art. II, § 2.1(A)(5); see also A.R.S. § 13-4433.
Pursuant to A.R.S. § 13-4402(A), this right, along with the other rights provided to
victims under the VBR, “continue[s] to be enforceable . . . until the final disposition of
the charges [against the defendant], including acquittal or dismissal of the charges, all
post-conviction release and relief proceedings and the discharge of all criminal
proceedings relating to restitution.” The “[f]inal disposition” of the charges is defined as
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“the ultimate termination of the criminal prosecution of a defendant by a trial court,
including dismissal, acquittal or imposition of a sentence.” A.R.S. § 13-4401(10).
¶6 The state argues that, by that definition, the proceedings against Gannon in
CR20074852 have not yet reached a final disposition because he was placed on probation
and that probation is ongoing. According to the state, because probation is not a
sentence, see Coy v. Fields, 200 Ariz. 442, n.2, 27 P.3d 799, 801 n.2 (App. 2001), the
case in which C.M. was a victim will not reach its final disposition so long as Gannon
remains on probation. The state contends, therefore, that a “plain reading of the statutes”
demonstrates that C.M. maintains her victim‟s rights. In contrast, Gannon points out that
the language of the statutes “includes some types of final dispositions but does not
expressly exclude others.” He maintains that because he was convicted pursuant to a plea
agreement and the time for a proceeding for relief from that conviction pursuant to Rule
32, Ariz. R. Crim. P., has passed, “his conviction is final.” In light of these competing
views of the finality of a criminal proceeding in the context of a victim‟s rights, we must
determine whether a criminal proceeding has reached its final disposition when a trial
court suspends imposition of sentence and places the defendant on probation. To do so,
we must interpret the meaning of “final disposition” set forth in § 13-4401(10).1
¶7 “„Our primary goal in interpreting statutes is to discern and give effect to
legislative intent.‟ We first consider the language of the statute and, if it is unclear, turn
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In his response to the state‟s petition, Gannon suggests the rule of lenity should
apply here. But, the legislature has specifically instructed us to construe the statutes at
issue “liberally . . . to preserve and protect the rights to which victims are entitled.”
A.R.S. § 13-4418.
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to other factors, including „the statute‟s context, subject matter, historical background,
effects, consequences, spirit, and purpose.‟” Norgord v. State ex rel. Berning, 201 Ariz.
228, ¶ 7, 33 P.3d 1166, 1168 (App. 2001), quoting Hobson v. Mid-Century Ins. Co., 199
Ariz. 525, ¶ 8, 19 P.3d 1241, 1245 (App. 2001). As an initial matter, we reject the state‟s
contention that the language of §§ 13-4401(10) and 13-4402(A) is clear and that a “plain
reading” of those statutes is determinative here. We therefore turn to other methods of
statutory interpretation to determine whether the legislature intended a victim to retain his
or her rights under the VBR after a defendant is placed on probation.
¶8 In interpreting a statute, we must construe it together with other statutes
relating to the same subject matter. State v. Sweet, 143 Ariz. 266, 270-71, 693 P.2d 921,
925-26 (1985). In this case, other statutes relating to the nature of probation and a
victim‟s rights relating to a defendant‟s probationary status are instructive. Section 13-
901(A), A.R.S., provides that if a person is eligible for probation, “the court may suspend
the imposition or execution of sentence” and place the person on probation. Thus, as this
court has pointed out, “[t]he imposition of probation is technically not a „sentence‟ but a
feature of the suspension of imposition of a sentence.” Coy, 200 Ariz. 442, n.2, 27 P.3d
at 801 n.2. Accordingly, a defendant convicted and placed on probation has not had his
or her charges dismissed, has not been acquitted, and has not had sentence imposed, and
arguably has not, therefore, reached final disposition under § 13-4401(10).
¶9 As Gannon points out, however, the language of § 13-4401(10) is not
exclusive, but rather states that a “final disposition” is a conclusion of a criminal
prosecution, “including dismissal, acquittal or imposition of a sentence.” § 13-4401(10)
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(emphasis added). The use of the word “including” denotes the list is illustrative and not
exclusive. Prince & Princess Enters., LLC v. State ex rel. Ariz. Dep’t of Health Servs.,
221 Ariz. 5, ¶ 13, 209 P.3d 141, 144 (App. 2008), citing State v. Roque, 213 Ariz. 193,
¶ 31, 141 P.3d 368, 382 (2006) (“Typically, the word „including‟ is „not one of all-
embracing definition, but connotes simply an illustrative application of the general
principle.‟”). Thus, the fact that placement on probation is not set forth in the examples
in the statute does not itself establish that the legislature intended to exclude it as a final
disposition for purposes of victim‟s rights.
¶10 A broader review of the statutes enacted pursuant to the VBR, however,
does establish such intent. In A.R.S. § 13-4427, the legislature specifically provided a
victim with, inter alia, “the right to be present and be heard at any probation revocation
disposition proceeding” or “any proceeding in which the court is requested to modify the
terms of probation . . . if the modification will substantially affect the person‟s contact
with or safety of the victim or if the modification involves restitution or incarceration
status.” Likewise, A.R.S. § 13-4411 requires the prosecutor‟s office to provide a victim
with a form “to request post-conviction notice of . . . all probation modification
proceedings that impact the victim [and] all probation revocation or termination
proceedings.” And, A.R.S. § 13-4415 requires the court itself to notify the victim about
various proceedings related to a defendant‟s probation and the terms thereof.
¶11 These related statutes establish the legislature‟s intent that a victim retain
his or her rights during a defendant‟s term of probation. If, as Gannon argues, a victim‟s
rights are no longer enforceable after the defendant is placed on probation, he or she
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could not exercise the right to notice of changes to the defendant‟s terms of probation or
probationary status. And Gannon has cited nothing to suggest those rights somehow are
severable from the trial-related rights set forth in the same victim rights statutes. Thus,
C.M.‟s rights as a victim remain enforceable while Gannon is on probation for his crime
against her and she therefore is entitled to refuse an interview sought by Gannon in a
different cause number.
Disposition
¶12 For the foregoing reasons, we accept special action jurisdiction and grant
relief. We vacate the trial court‟s order compelling C.M. to submit to a pretrial interview.
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge
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