State of Arizona v. David Charles Henry ( 2010 )

FILED BY CLERK
IN THE COURT OF APPEALS FEB 23 2010
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2009-0035
Appellee, ) DEPARTMENT B
)
v. ) OPINION
)
DAVID CHARLES HENRY, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20080857
Honorable Richard Nichols, Judge
AFFIRMED
Terry Goddard, Arizona Attorney General
By Kent E. Cattani and Alan L. Amann Tucson
Attorneys for Appellee
Barton & Storts, P.C.
By Brick P. Storts, III, and William Perry Tucson
Attorneys for Appellant
E C K E R S T R O M, Presiding Judge.
¶1 Following a bench trial, the court convicted appellant David Henry of one
count of failing to obtain an identification card or driver’s license as a person previously
convicted of a sex offense. The court then sentenced Henry to an enhanced term of 3.75
years’ imprisonment and ordered him to register as a sex offender. On appeal, Henry argues
the court’s refusal to dismiss the indictment against him violated principles of double
jeopardy and resulted in an ex post facto application of the law. He also contends the court
denied him his right to a speedy trial.1 We affirm his conviction and sentence for the reasons
set forth below.
Factual and Procedural Background
¶2 In 1974, Henry was convicted of several felony offenses, one of which was
first-degree armed rape committed on May 25, 1974, in violation of former A.R.S. §§ 13-611
and 13-614(C). See 1967 Ariz. Sess. Laws, ch. 62, § 9 (former § 13-614(C)); 1962 Ariz.
Sess. Laws, ch. 52, § 1 (former § 13-611(A)). On September 8, 2007, a Tucson police officer
requested identification from Henry in the course of a traffic stop. Henry could not produce
any identification at the time, and certified documents from the Motor Vehicle Division of
the Arizona Department of Transportation revealed his last identification card had been
issued on October 5, 2001.2
1
In his reply brief, Henry withdrew the argument that his conviction violated the
separation of powers doctrine in the Arizona Constitution.
2
The state, apparently misreading these documents, represented to the court that
Henry’s last identification card had been issued on April 18, 1997. Although Henry did not
challenge the error, the disparity between the two dates is irrelevant to this appeal.
2
¶3 Henry subsequently was arrested and charged with three offenses relating to
his status as a sex offender: failure to give notice of a change of address or name on
September 8, 2007 (count one); failure to obtain a “nonoperating identification license or a
driver license” on September 8, 2007, in violation of A.R.S. §§ 13-3821 and 13-3824 (count
two);3 and failure to give notice of a change of address or name between February 14 and
February 26, 2008 (count three).4 In response, Henry filed a motion to dismiss the indictment
on grounds that the charges constituted double jeopardy and that, as applied to him,
Arizona’s sex offender registration and notification statutes, A.R.S. §§ 13-3821 and 13-3825,
were ex post facto laws violating the United States and Arizona Constitutions. The trial court
3
The versions of §§ 13-3821 and 13-3824 in effect when Henry committed the offense
are the same in relevant part as the current versions. See 2006 Ariz. Sess. Laws, ch. 184, § 1;
2006 Ariz. Sess. Laws, ch. 160, § 3.
4
Although count two of the indictment cited § 13-3821(E), this subsection specifies
the registration requirements for nonresident sex offenders and was not applicable to this
case. The trial court later implicitly amended the indictment to reflect that Henry was
charged with violating the former § 13-3821(I), which required him to obtain and carry
identification, a class six felony. See 2006 Ariz. Sess. Laws, ch. 184, § 1; 2006 Ariz. Sess.
Laws, ch. 160, § 3. This subsection was renumbered as § 13-3821(J) by 2007 Ariz. Sess.
Laws, ch. 176, § 4, where it remains codified today. However, because this amendment did
not take effect until September 19, 2007—eleven days after Henry committed the offense
charged in count two—the state was technically incorrect in its repeated assertion at oral
argument that Henry was convicted of violating § 13-3821(J), not former § 13-3821(I). See
Ariz. Const. art. IV, pt. 1, § 1(3) (laws generally do not take effect until ninety days after
close of legislative session); Baker v. Superior Court, 190 Ariz. 336, 339-40, 947 P.2d 910,
913-14 (App. 1997) (operative criminal law generally that in effect on date of offense); cf.
State v. Helmer, 203 Ariz. 309, ¶¶ 5, 7, 12, 53 P.3d 1153, 1154, 1156 (App. 2002) (when
defendant indicted for failure to register as sex offender over period of years, continuing
nature of offense allowed trial court to sentence defendant for class four felony rather than
class six felony, which offense had been when originally committed).
3
denied the motion. Henry then waived his right to a jury trial and represented himself with
the assistance of advisory counsel.
¶4 The trial court dismissed count one of the indictment on the state’s motion
before trial. It entered a judgment of acquittal on count three and found Henry guilty of
count two.5 After determining Henry had been previously convicted of two felonies, the
court sentenced him to a term of 3.75 years in prison and, over his objection, ordered him to
register as a sex offender.
Ex Post Facto
¶5 As he did below, Henry argues his 1974 rape conviction neither subjected him
to the laws he was charged with violating, A.R.S. §§ 13-3821 and 13-3824, nor exposed him
to the community notification requirements of A.R.S. § 13-3825. Consequently, he contends
his present conviction and required registration as a sex offender violated his rights,
5
Henry did not raise the issue of whether the state had shown “actual knowledge of
the need to []register as a sex offender or proof of the probability that he had knowledge of
the requirement and thereafter failed to [comply with it],” an element of the offense under
§ 13-3821 imposed by the Due Process Clause and Lambert v. California, 355 U.S. 225
(1957). See State v. Garcia, 156 Ariz. 381, 382-83, 384, 752 P.2d 34, 35-36, 37 (App. 1987).
Although the state did not emphasize Henry’s awareness of his general or specific statutory
obligations at trial, the court admitted into evidence an exhibit showing Henry had been
convicted in 2003 in Pima County cause number CR-20022443 of failing to report a change
of address as a registered sex offender. Because we presume the court knew and correctly
followed the law in conducting the bench trial, see State v. Moody, 208 Ariz. 424, ¶ 49, 94
P.3d 1119, 1138 (2004), we find the evidence was sufficient to support Henry’s present
conviction. See State v. Bryant, 614 S.E.2d 479, 488-89 (N.C. 2005) (sex offender’s
awareness of obligation to register in one state sufficient, for due process purposes, “to put
[him] on notice to inquire into the applicable law of” state to which he moved).
4
guaranteed by both the federal and state constitutions, to be free from ex post facto laws.6
We review these legal issues de novo. See State v. Kuntz, 209 Ariz. 276, ¶ 5, 100 P.3d 26,
28 (App. 2004) (“Whether the trial court properly applied § 13-3821(A) is a question of law
that we review de novo.”); State ex rel. Romley v. Rayes, 206 Ariz. 58, ¶ 6, 75 P.3d 148, 150
(App. 2003) (ex post facto claims reviewed de novo).
¶6 Ex post facto laws are prohibited by both article I, § 10, cl. 1 of the United
States Constitution 7 and article II, § 25 of the Arizona Constitution.8 Because the language
of these provisions is materially the same, we generally interpret them as having the same
scope, and we typically follow federal precedent in the area. See State v. Noble, 171 Ariz.
171, 173, 829 P.2d 1217, 1219 (1992).
¶7 An ex post facto law is defined exclusively as a law falling into one of the four
categories delineated in Calder v. Bull, 3 U.S. 386, 390 (1798). See Carmell v. Texas, 529
U.S. 513, 537-39 (2000); Collins v. Youngblood, 497 U.S. 37, 41-42 (1990); Noble, 171 Ariz.
at 173-74, 829 P.2d at 1219-20. As Calder explained, an ex post facto law is:
6
Because Henry has challenged the general applicability to him of the present-day sex
offender registration and monitoring statutes, irrespective of his most recent conviction, we
do not limit our ex post facto analysis to the specific provision under which he was
convicted, as the state invites us to do.
7
The federal provision reads, in part: “No State shall . . . pass any Bill of Attainder,
ex post facto Law, or Law impairing the Obligation of Contracts . . . .”
8
The Arizona provision reads: “No bill of attainder, ex-post-facto law, or law
impairing the obligation of a contract, shall ever be enacted.”
5
1st. Every law that makes an action, done before the passing of
the law, and which was innocent when done, criminal; and
punishes such action. 2nd. Every law that aggravates a crime,
or makes it greater than it was, when committed. 3rd. Every
law that changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime, when
committed. 4th. Every law that alters the legal rules of
evidence, and receives less, or different, testimony, than the law
required at the time of the commission of the offence, in order
to convict the offender.
3 U.S. at 390. In Noble, our supreme court concluded that § 13-3821, which requires sex
offenders to register with law enforcement agencies or face penalties for failing to do so,
“violates the ex post facto clause only if it is a ‘law that changes the punishment, and inflicts
a greater punishment than the law annexed to the crime, when committed.’” 171 Ariz. at
174, 829 P.2d at 1220, quoting Calder, 3 U.S. at 390. We similarly address only the third
Calder category in the present case. See id.
¶8 To determine whether the application of sex offender registration and
notification laws inflicts a greater punishment than was provided by law at the time of an
offense, the ultimate question to be decided is whether the subsequent laws are punitive or
regulatory in nature. See Noble, 171 Ariz. at 175, 829 P.2d at 1221; Ariz. Dep’t of Pub.
Safety v. Superior Court (Falcone), 190 Ariz. 490, 494, 949 P.2d 983, 987 (App. 1997).
Whereas a punitive law cannot be applied retroactively, a regulatory law will withstand an
ex post facto challenge. Falcone, 190 Ariz. at 494, 949 P.2d at 987.
¶9 When evaluating the punitive or regulatory character of a law, a court first
looks to the legislative intent behind it. See Smith v. Doe, 538 U.S. 84, 92 (2003); Noble, 171
6
Ariz. at 175, 829 P.2d at 1221; Falcone, 190 Ariz. at 494, 949 P.2d at 987. If the legislature
intended a nonpunitive purpose, a court must then inquire “‘whether the statutory scheme [i]s
so punitive either in purpose or effect as to negate that intention.’” Noble, 171 Ariz. at 175,
829 P.2d at 1221, quoting United States v. Ward, 448 U.S. 242, 248-49 (1980); accord Smith,
538 U.S. at 92; Falcone, 190 Ariz. at 495, 949 P.2d at 988. A person challenging a
purportedly nonpunitive law on ex post facto grounds must demonstrate by “‘the clearest
proof’” that the law is in fact punitive. Smith, 538 U.S. at 92, quoting Hudson v. United
States, 522 U.S. 93, 100 (1997); accord Falcone, 190 Ariz. at 496, 949 P.2d at 989.
Statutes
¶10 Arizona’s first sex offender registration statute was enacted in 1951. See 1951
Ariz. Sess. Laws, ch. 105, § 1; Fushek v. State, 218 Ariz. 285, n.2, 183 P.3d 536, 538 n.2
(2008). Under what first was codified as § 43-6117 of the 1939 Arizona Code (Supp. 1952),
a person convicted of an enumerated sex offense such as rape was required to register with
the sheriff of his county of residence, have his photograph taken, be fingerprinted, and
provide a written statement required by the state’s bureau of criminal identification. These
materials were only shared with law enforcement officers, and the failure to register or
update one’s residential information after moving was a misdemeanor. 1951 Ariz. Sess.
Laws, ch. 105, § 1.
¶11 When the Arizona Code was revised in 1956, former § 43-6117 was separated
into four sections. See 1956 Ariz. Sess. Laws, 3d Spec. Sess., ch. 3, § 1. Sex offender
7
registration in general was required by A.R.S. § 13-1271; the requirement that sex offenders
inform the sheriff of an address change was codified in A.R.S. § 13-1272; public access to
a sex offender’s information was prohibited by A.R.S. § 13-1273; and any violation of the
registration statutes was punishable as a misdemeanor pursuant to A.R.S. § 13-1274.9
¶12 In 1977, the legislature again renumbered the principal sex offender
registration statute, former § 13-1271, as A.R.S. § 13-3821, making minor changes to it in
the process. See 1977 Ariz. Sess. Laws, ch. 142, § 115. The legislature also specified that
a violation of registration requirements was punishable as a class two misdemeanor. See
1977 Ariz. Sess. Laws, ch. 142, § 116 (amending former § 13-1274 and renumbering it as
A.R.S. § 13-3824). Lawmakers then repealed § 13-3821 in 1978, with the result that our
state was without a registration statute for over five years.10 See 1978 Ariz. Sess. Laws, ch.
201, § 242; State v. Lammie, 164 Ariz. 377, 378, 793 P.2d 134, 135 (App. 1990), disagreed
with on other grounds by State v. Peek, 219 Ariz. 182, ¶¶ 15-17, 195 P.3d 641, 644 (2008).
In 1983, the legislature enacted the modern sex offender registration statute, A.R.S.
§ 13-3821, which at its inception was substantially similar to its predecessor. See 1983 Ariz.
Sess. Laws, ch. 202, § 13. Since that time, “the registration and monitoring statutes, A.R.S.
9
Henry mistakenly asserts in his opening brief that, “[a]t the time of [his] conviction
there was no such thing as sex offender registration.”
10
Former §§ 13-1272 and 13-1273, which were renumbered as A.R.S. §§ 13-3822 and
13-3823, respectively, see 1977 Ariz. Sess. Laws, ch. 142, § 114, remained in place, as did
§ 13-3824.
8
§§ 13-3821 to [13]-3829, have undergone several changes.” Fushek, 218 Ariz. 285, n.2, 183
P.3d at 538 n.2.
¶13 For instance, in 1985 the legislature began to loosen restrictions on who could
access a sex offender’s information, permitting disclosure to others than law enforcement
officers for the first time. See 1985 Ariz. Sess. Laws, ch. 54, § 2 (granting access to potential
employers and child welfare agencies). As our supreme court recently summarized in
Fushek:
Access to registration information is today considerably broader.
In 1998, the legislature provided for a sex offender website,
making the information of some offenders available to the
public at large. 1998 Ariz. Sess. Laws, ch. 291, § 5 (codified as
amended at A.R.S. § 13-3827). In addition, the current statute
requires that individuals and groups in the communities where
offenders live and work be notified of the offenders’ presence.
A.R.S. §§ 13-3825(C), (G), 13-3826(E)(1)(a).
218 Ariz. 285, n.6, 183 P.3d at 541 n.6.11
¶14 Section 13-3821 was amended in 2001 to apply expressly to people such as
Henry who had been convicted of certain sexual offenses under Arizona laws in effect before
1978. 2001 Ariz. Sess. Laws, ch. 109, § 2. The legislature provided for retroactive
application of community notification requirements in § 13-3825(I), and we assume it
similarly intended that additional statutes relating to sex offender registration and monitoring
11
The subsections Fushek cited have not materially changed. See 2008 Ariz. Sess.
Laws, ch. 9, § 1.
9
apply retroactively.12 See Fushek, 218 Ariz. 285, n.2, 183 P.3d at 538 n.2. The specific
provisions of these statutes, detailed by the court in Fushek, include requirements that sex
offenders register for life for most qualifying offenses;13 notify law enforcement of any
change of name or address; 14 report any enrollment or employment at post-secondary
educational institutions to the sheriff of that county;15 notify law enforcement of any online
identifiers, such as e-mail addresses or screen names, disclose where they are used, annually
confirm them, and promptly report any changes to them; 16 and annually update and
continuously carry an identification card or driver’s license.17 Id. ¶¶ 23-25 & nn.7-8. Sex
offenders must also provide law enforcement officials with a DNA sample. § 13-3821(O).
¶15 As the duties placed on sex offenders and the access to their information have
steadily increased over the years, so, too, have the penalties for failing to comply with
12
Authorities are divided whether the terms “retroactive” and “retrospective” have the
same or different meanings. Compare 16B Am. Jur. 2d Constitutional Law § 735 (2009)
(“The terms ‘retrospective’ and ‘retroactive’ are frequently used interchangeably, even
though, in fact, they have different meanings . . . .”), with Black’s Law Dictionary 1318, 1319
(7th ed. 1999) (defining “retroactive law” and “retrospective law” as interchangeable). Our
supreme court appears to use the terms interchangeably, compare Fushek, 218 Ariz. 285, n.2,
183 P.3d at 583 n.2, with Noble, 171 Ariz. at 174, 829 P.2d at 1220, and we therefore draw
no critical distinction between them.
13
§ 13-3821(D), (F)–(H), (M).
14
See §§ 13-3821(I); 13-3822(A)–(B).
15
§ 13-3821(N).
16
See §§ 13-3821(I)–(J), (P), (R); 13-3822(C).
17
See § 13-3821(I), (J).
10
registration requirements. In 1985, the penalty for failing to register was increased from a
class two misdemeanor to a class six felony. 1985 Ariz. Sess. Laws, ch. 364, § 33. In 1998,
failure to comply with any registration requirement was deemed a class four felony. See
1998 Ariz. Sess. Laws, ch. 291, § 3 (former § 13-3824). The legislature made a brief
exception to this rule in 2004 when it designated the failure to update and carry an
identification card a class one misdemeanor subject to a mandatory $250 assessment upon
conviction. 2004 Ariz. Sess. Laws, ch. 142, § 3. However, in 2006 it reclassified the offense
a class six felony, leaving the financial assessment in place. 2006 Ariz. Sess. Laws, ch. 160,
§ 3. Today, failure to update or carry photographic identification remains a class six felony,
as is the failure to annually confirm one’s online identifiers. §§ 13-3824(B), 13-3821(J). All
other registration violations are punished as class four felonies. § 13-3824(A).
Intent
¶16 In conducting our ex post facto analysis of §§ 13-3821, 13-3825, and the other
related statutes, we first inquire “‘whether the legislative aim was to punish [an] individual
for past activity, or whether the restriction of the individual comes about as a relevant
incident to a regulation of a present situation.’” Noble, 171 Ariz. at 175, 829 P.2d at 1221,
quoting De Veau v. Braisted, 363 U.S. 144, 160 (1960) (alteration in Noble). When
analyzing the version of § 13-3821 enacted in 1983 to determine whether it was punitive or
regulatory, the court in Noble noted there was scant legislative history of the statute’s
purpose. See id. Balancing both the punitive and regulatory effects of the law, however, the
11
court ultimately concluded § 13-3821 primarily served the nonpunitive goal of “facilitating
the location of child sex offenders by law enforcement.” 171 Ariz. at 178, 829 P.2d at 1224;
see also In re Maricopa County Juv. Action No. JV-132744, 188 Ariz. 180, 183, 933 P.2d
1248, 1251 (App. 1996) (recognizing nonpunitive purpose behind juvenile sex offender
registration).
¶17 Upon reexamining the sex offender registration scheme in Falcone, Division
One of this court found express evidence of nonpunitive purposes behind the community
notification statute in effect in 1997, 190 Ariz. at 495, 949 P.2d at 988, which did not then
require any community notification via the internet. See 1997 Ariz. Sess. Laws, ch. 136,
§ 25. The Falcone court observed “the legislature furnished ample indication that it intended
to protect communities, not punish sex offenders.” 190 Ariz. at 495, 949 P.2d at 988. When
internet publication of certain sex offenders’ information was later instituted, former
§ 13-3827(A) provided: “The purpose of the [Department of Public Safety’s] internet sex
offender website is to provide sex offender information to the public.” 1998 Ariz. Sess.
Laws, ch. 291, § 5.
Effects
¶18 Because the legislature has indicated nonpunitive purposes for sex offender
registration and notification laws, we next consider whether the laws’ punitive effects
outweigh their regulatory purposes. See Noble, 171 Ariz. at 175, 829 P.2d at 1221; see also
Smith, 538 U.S. at 92; Falcone, 190 Ariz. at 495, 949 P.2d at 988. In conducting this
12
analysis, we consider the various factors listed in Kennedy v. Mendoza-Martinez, 372 U.S.
144 (1963), see Noble, 171 Ariz. at 175, 829 P.2d at 1221, in addition to any other relevant
considerations. See Smith, 538 U.S. at 97 (Mendoza-Martinez factors provide “useful
framework” but are “‘neither exhaustive nor dispositive’” when determining if statute
punitive), quoting Ward, 448 U.S. at 249. The factors listed in Mendoza-Martinez are
[w]hether the sanction involves an affirmative disability or
restraint, whether it has historically been regarded as a
punishment, whether it comes into play only on a finding of
scienter, whether its operation will promote the traditional aims
of punishment—retribution and deterrence, whether the
behavior to which it applies is already a crime, whether an
alternative purpose to which it may rationally be connected is
assignable for it, and whether it appears excessive in relation to
the alternative purpose assigned . . . .
372 U.S. at 168-69 (footnotes omitted). Bearing these factors in mind, courts assess “the
effects of the registration requirement on convicted sex offenders and . . . the rationality
between the requirement and its purported non-punitive function.” Noble, 171 Ariz. at 175,
829 P.2d at 1221.
¶19 In Smith, the United States Supreme Court held that Alaska’s Sex Offender
Registration Act, which established a registration and public notification scheme similar to
Arizona’s, was regulatory in character rather than punitive and therefore did not violate the
Ex Post Facto Clause when retroactively applied to offenders convicted before the Act’s
passage. 538 U.S. at 89-90, 105-06. Neither party has cited Smith in its briefs. Without
13
rehashing its analysis at length here, we find it necessary to touch upon two points in
affirming Henry’s conviction and sentence.
¶20 First, although the Arizona Supreme Court expressly found sex offender
registration to be a traditional form of punishment, Noble, 171 Ariz. at 176, 829 P.2d at 1222,
Smith thereafter found the contrary. 538 U.S. at 97-99. However, because Noble drew this
conclusion from American cultural and legal traditions broadly rather than from Arizona’s
in particular, we do not interpret Noble’s analysis as representing or requiring a departure
from federal precedent. Indeed, Smith and Noble similarly analyzed the stigmatizing effect
of sex offender registration. Compare Smith, 538 U.S. at 98 (“[T]he stigma . . . results not
from public display for ridicule and shaming but from the dissemination of accurate
information about a criminal record, most of which is already public. Our system does not
treat dissemination of truthful information in furtherance of a legitimate governmental
objective as punishment.”), with Noble, 171 Ariz. at 177, 829 P.2d at 1223 (“[T]he provisions
in the statute limiting access to the registration information significantly dampen its stigmatic
effect. . . . [M]uch of the information that convicted sex offenders must provide under § 13-
3821 is available . . . independent of the registration statute.”) (citations omitted). To the
extent these cases conflict, we regard Noble’s finding that registration has been traditionally
viewed as a form of punishment under the Ex Post Facto Clause of the United States
Constitution as having been undermined by Smith.
14
¶21 Second, in upholding Alaska’s Sex Offender Registration Act, the United
States Supreme Court acknowledged that the registration system’s similarities to probation
or supervised release presented a forceful argument that the Act was punitive. Smith, 538
U.S. at 101. The Court noted, however, that the Act specified no procedures for
implementing the statute’s requirements. 538 U.S. at 96. Arizona’s statutes, by contrast,
contain implementation procedures for law enforcement agencies and provide for enforcing
registration laws not through administrative means, but through criminal prosecution. See
§§ 13-3822(B), 13-3825(B). In this way, Arizona’s scheme is even more analogous to
probation or supervised release than the Alaska scheme addressed in Smith.18
¶22 Yet, Arizona’s supreme court previously has upheld our sex offender
registration system as regulatory despite its codification in title 13, A.R.S., our criminal code;
its enforcement solely through criminal prosecution; and its designation of registration
violations as felony offenses. See Noble, 171 Ariz. at 172-73, 178, 829 P.2d at 1218-19,
1224; see also Fushek, 218 Ariz. 285, ¶ 18, 183 P.3d at 541 (“Noble held that the then-extant
sex offender registration statute could be applied to defendants who had committed their
crimes before the statute’s enactment without violating the ex post facto clauses of the
18
At oral argument, counsel for Henry erroneously sought to distinguish Smith on the
ground that Alaska’s registration scheme imposed only misdemeanor sanctions for violations.
See Smith, 538 U.S. at 96 (observing Alaska’s “scheme is enforced by criminal penalties”
and citing Alaska Stat. §§ 11.56.835 and 11.56.840); see also Alaska Stat. § 11.56.835(d)
(“Failure to register as a sex offender or child kidnapper in the first degree is a class C
felony.”).
15
federal and state constitutions.”). Our controlling jurisprudence therefore prevents this court
from distinguishing on this basis the Alaska scheme the United States Supreme Court found
regulatory in nature from the Arizona scheme Henry now challenges.
¶23 Moreover, although the registration and notification laws certainly have some
punitive effects, our legislature has taken steps to tailor the statutes to serve more precisely
their nonpunitive ends. For example, mandatory community and website notification is
required only for offenders deemed to pose a heightened risk to the community, see
§§ 13-3825(C), 13-3826(E), 13-3827(A), and other provisions limit public disclosure of an
offender’s online identifiers. § 13-3827(D), (E). In addition, A.R.S. § 13-923, the statute
under which a trial court reviews the probation of sex offenders younger than age
twenty-two, also allows a court to terminate both registration and community notification
requirements pursuant to §§ 13-3821(H) and 13-3825(L).
¶24 Although neither Noble nor Falcone analyzed the exact registration scheme we
address here, many of the salient components of the current statutes already existed in some
form and were addressed in those cases. Indeed, in Noble our supreme court considered
Arizona’s first registration scheme authorizing potential felony imprisonment sanctions and
found it applicable to defendants who had faced no registration requirements at all when they
committed their predicate offenses. See Noble, 171 Ariz. at 172-73, 178, 829 P.2d at 1218-
19, 1224. Although Henry has maintained on appeal that Noble should be overruled, he
acknowledges this court is constrained by the decisions of our supreme court. See State v.
16
Sullivan, 205 Ariz. 285, ¶ 15, 69 P.3d 1006, 1009 (App. 2003). We recognize, as discussed
earlier, that the registration requirements have become decidedly more burdensome since
Noble addressed the issue. However, because Smith controls our analysis here, we are
compelled to conclude that Arizona’s sex offender registration and notification statutes do
not constitute impermissible ex post facto laws as applied to Henry.
¶25 Although we follow Smith today, we might well have reached a different result
under controlling state precedent predating Smith. See Noble, 171 Ariz. at 173, 829 P.2d at
1219 (cautioning against blind adherence to federal precedent). When Noble examined the
sex offender registration system in effect nearly eighteen years ago to determine whether
§ 13-3821 constituted an impermissible ex post facto law, our state supreme court noted,
after balancing the Mendoza-Martinez factors, that its “decision [wa]s close.” 171 Ariz. at
178, 829 P.2d at 1224. In ultimately finding the then-existing regime applicable
retroactively, the court acknowledged the traditionally punitive nature and “stigmatic effect”
of registration provisions but emphasized that the specific statutory scheme before it
mitigated any such punitive effect. Noble, 171 Ariz. at 176-77, 178, 829 P.2d at 1222-23,
1224. “Registrants are not forced to display a scarlet letter to the world; outside of a few
regulatory exceptions, the information provided . . . pursuant to the registration statute is kept
confidential.” Id. at 178, 829 P.2d at 1224. As Henry correctly observes, the Arizona
legislature has since removed those features of the scheme protecting the confidentiality of
an offender’s registration status and now specifically requires broad community disclosure
17
of that status for most classes of offenders, including notification of the registrant’s
neighbors and prospective employers. See § 13-3826(E)(1)(a); 1997 Ariz. Sess. Laws, ch.
136, § 26. Thus, under the scheme we address here, sex offenders are not only “forced to
display a scarlet letter to the world,” but state authorities are required to shine a spotlight on
that letter.
¶26 Noting these very developments, our supreme court recently has held that sex
offender registration is a sufficiently severe potential consequence for a sexually motivated
misdemeanor that a person so charged has a right to a trial by jury under article II, § 24 of
the Arizona Constitution. Fushek, 218 Ariz. 285, ¶¶ 26, 30, 183 P.3d at 542-44. In so ruling,
the court noted that the language of article II, § 24 is “virtually identical to that of the Sixth
Amendment” and, consequently, our courts have interpreted them to provide the same
protections. Fushek, 218 Ariz. 285, ¶ 8, 183 P.3d at 539. Although Fushek made clear that
the issue of “whether sex offender registration is criminal punishment for ex post facto
purposes” was not before the court in that case, id. ¶ 19, “the protections provided by the
Sixth Amendment are available only in ‘criminal prosecutions.’” Ward, 448 U.S. at 248,
quoting U.S. Const. amend. VI. Thus, our adherence to Smith today requires us to conclude
that, under Arizona law, sex offender registration is both a sufficiently severe sanction to
trigger the Sixth Amendment right to a jury trial and a nonpunitive civil regulation for
purposes of the Ex Post Facto Clause—results we find difficult to harmonize. Cf. Ward, 448
U.S. at 254 (observing “it would be quite anomalous to hold that § 311(b)(6) [of the Federal
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Water Pollution Control Act] created a criminal penalty for the purposes of the
Self-Incrimination Clause but a civil penalty for all other purposes”). As an intermediate
appellate court, however, we are bound to uphold the application of sex offender registration
and notification statutes that are not meaningfully distinguishable from those in Smith.
Double Jeopardy
¶27 Apart from citing the Fifth Amendment to the United States Constitution and
article II, § 10 of the Arizona Constitution, Henry has failed to develop an argument in his
opening brief that his conviction and sentence violate the prohibition against double
jeopardy. We therefore need not address the issue. See Ariz. R. Crim. P. 31.13(c)(1)(vi)
(opening brief must contain citations to record and argument for each issue raised); State v.
Cons, 208 Ariz. 409, ¶ 18, 94 P.3d 609, 616 (App. 2004) (failure to develop argument
properly in opening brief results in waiver of issue on appeal). However, given our
conclusion that sex offender registration is a nonpunitive, regulatory scheme pursuant to
Noble and Smith, we would not find Henry’s conviction for violating Arizona’s registration
statutes to constitute double jeopardy even if the issue had been presented properly to this
court. See E.B. v. Verniero, 119 F.3d 1077, 1092 (3d Cir. 1997) (“[N]either [the Ex Post
Facto nor the Double Jeopardy C]lause is implicated unless the state has inflicted
‘punishment.’”).
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Speedy Trial
¶28 Henry last contends “the trial court erred in denying [his] motion to dismiss the
charges for [a] violation of his right to a speedy trial.” A transcript attached as an exhibit to
Henry’s motion below shows that certain charges against him in a different cause, number
CR-20073489, were dismissed without prejudice at the state’s request due to the inability of
a state’s witness to testify at Henry’s trial. The indictment in that case is not included in the
record on appeal, and there is otherwise scant evidence of the procedural history of the case.
The record does not clearly show, as Henry asserts, that the previously dismissed charges
were refiled as counts one and two of the present indictment. The relevance of the earlier
cause number, therefore, has not been established, and we find the record insufficient to
allow appellate review of the issue. See State v. Rivera, 168 Ariz. 102, 103, 811 P.2d 354,
355 (App. 1990) (appellant has duty to ensure record contains any document necessary to
argument; court will not speculate on content not in record).
¶29 Even if the appellate record were more extensively developed, we would still
reject Henry’s argument. Without providing any standard of review for the issue he raises,
and with minimal support from legal authorities, see Ariz. R. Crim. P. 31.13(c)(1)(vi), Henry
contends “[t]he prosecutor’s argument that she was dismissing [the earlier charges] because
she didn’t have a witness, rather than to avoid Rule 8[, Ariz. R. Crim. P.,] is frivolous,” given
that her own actions in “wait[ing] until the last minute to attempt to subpoena [the witness]
. . . put her in a position to have to move to dismiss to avoid the time requirements.”
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¶30 Rule 8.2(a) requires that defendants be tried within a certain number of days
from arraignment, and Rule 16.6(a), Ariz. R. Crim. P., permits a court to dismiss charges on
the state’s motion only “upon finding that the purpose of the dismissal is not to avoid the
provisions of Rule 8.” Hence, the trial court already had determined the prosecutor did not
seek a dismissal to avoid the requirements of Rule 8. And, as the state points out, the record
shows there were difficulties in locating and securing the presence of the witness at the
previously scheduled trial. In any event, “the proper method to raise the issue was through
a motion for reconsideration or petition for special action filed in [CR-20073489], not by a
motion to dismiss” in the present case. State v. Paris-Sheldon, 214 Ariz. 500, ¶ 23, 154 P.3d
1046, 1054 (App. 2007). Consequently, we lack jurisdiction to review the propriety of the
earlier dismissal. See id. ¶ 20.
Disposition
¶31 For the foregoing reasons, Henry’s conviction and sentence are affirmed.
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge
CONCURRING:
/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Judge
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