DALE JOSEPH FUSHEK v STATE OF ARIZONA

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SUPREME COURT OF ARIZONA En Banc DALE JOSEPH FUSHEK, ) ) Petitioner/Appellee, ) ) v. ) ) STATE OF ARIZONA, ) ) Real Party in Interest/ ) Appellant. ) ) ) ) __________________________________) Arizona Supreme Court No. CV-07-0251-PR Court of Appeals Division One No. 1 CA-CV 06-0598 Maricopa County Superior Court No. LC2006-000371-001 DT O P I N I O N Appeal from the Superior Court in Maricopa County The Honorable Douglas L. Rayes, Judge AFFIRMED ________________________________________________________________ Opinion of the Court of Appeals, Division One 215 Ariz. 274, 159 P.3d 584 (App. 2007) VACATED ________________________________________________________________ STINSON MORRISON HECKER, L.L.P. By Michael Charles Manning Phoenix And LAW OFFICE OF THOMAS M. HOIDAL, P.L.C. By Thomas M. Hoidal Attorneys for Dale Joseph Fushek Phoenix ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix By Diane Gunnels Rowley, Deputy County Attorney Attorneys for State of Arizona ________________________________________________________________ H U R W I T Z, Justice ¶1 This case requires us to decide whether the Arizona Constitution guarantees a jury trial to a misdemeanor defendant when the State files a special allegation of sexual motivation pursuant to Arizona Revised Statutes ( A.R.S. ) § 13-118 (2001). I. ¶2 In November 2005, the Maricopa County Attorney filed a complaint in the San Tan Justice Court alleging that Dale Joseph Fushek had committed ten misdemeanors. The State also filed a special allegation of sexual motivation pursuant to A.R.S. § 131181 for each alleged offense. If the trier of fact finds sexual motivation, the sentencing judge can require Fushek to register as a sex offender. A.R.S. § 13-3821(C) (Supp. 2007).2 1 In each criminal case involving an offense other than a sexual offense, the prosecutor may file a special allegation of sexual motivation if sufficient admissible evidence exists that would justify a finding of sexual motivation by a reasonable and objective finder of fact. A.R.S. § 13-118(A). 2 Fushek allegedly committed the offenses between 1984 and 1993. Arizona first enacted a sex offender registration statute in 1951. The modern version, A.R.S. § 13-3821, was enacted in 1983. 1983 Ariz. Sess. Laws, ch. 202, § 13. Since 1983, the registration and monitoring statutes, A.R.S. §§ 13-3821 to -3829, have undergone several changes, most recently in 2007. 2007 Ariz. Sess. Laws, ch. 84, §§ 1-3; ch. 176, § 4; ch. 287, § 10. A.R.S. § 13-118 was first enacted in 1995. 1995 Ariz. Sess. Laws, ch. 257, § 1. We assume for the purposes of this case that these statutes apply retroactively, State v. Noble, 171 Ariz. 171, 178, 829 P.2d 1217, 1224 (1992), and therefore cite to the current versions. 2 ¶3 The State dismissed three of the charges, and Fushek requested a contributing jury to trial the on those delinquency remaining: of a five that Fushek is entitled to a of one count of minor, assault, and one count of indecent exposure. ruled counts jury The justice court trial only on the indecent exposure charge. ¶4 That Fushek filed a special action in the superior court. court accepted jurisdiction and granted relief, finding that Article 2, Section 24 of the Arizona Constitution entitles Fushek to a jury trial on all counts of the complaint. Citing Derendal v. Griffith, 209 Ariz. 416, 425 ¶ 37, 104 P.3d 147, 156 (2005), the superior court found that Fushek has a right to trial by jury additional, because severe, sex offender direct, registration uniformly applied is an statutory consequence[] that reflect[s] the legislature s judgment that the offense is serious. ¶5 The court of appeals reversed. Fushek v. State, 215 Ariz. 274, 279 ¶ 18, 159 P.3d 584, 589 (App. 2007). That court concluded that there is no right to a jury trial under Article 2, Section 24 because the trial judge is not required under § 13-3821 to compel a convicted defendant to register as a sex offender, and the uniformly applied. statutory consequence is therefore not Fushek, 215 Ariz. at 278 ¶¶ 15-16, 159 P.3d at 588. 3 ¶6 We granted Fushek s petition for review because this case presents a constitutional question of first impression and statewide importance. See ARCAP 23(c)(3). We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003). II. ¶7 The jury trial guarantees of the Arizona Constitution are set forth in Article 2, Sections 23 and 24. provides that inviolate. [t]he right of trial Ariz. Const. art. 2, § 23. by jury Section 23 shall remain It guarantees a jury trial if the statutory offense has a common law antecedent that guaranteed a right to trial by jury at the time of Arizona statehood. Derendal, 209 Ariz. at 425 ¶ 36, 104 P.3d at 156. The State conceded below that Fushek is entitled to a jury trial on the indecent exposure charge under Section 23.3 Fushek does not argue that assault and contributing to the delinquency of a minor have common law antecedents meeting the Section 23 test. ¶8 Section 24 guarantees the right to a jury trial [i]n criminal prosecutions. Ariz. Const. art. 2, § 24. Because the language of Section 24 is virtually identical to that of the Sixth Amendment, which guarantees the right to jury trial [i]n all criminal prosecutions, U.S. 3 Const. amend. VI, we have In its supplemental brief, the State suggests that this concession was in error, but recognizes that it is bound by the concession in this case. 4 construed it consistently with the federal constitution to preserve the right to jury trial only for serious, as opposed to petty, crimes. Derendal, 209 Ariz. at 420 ¶ 13, 104 P.3d at 151 (citations omitted). ¶9 Thus, in Derendal, we looked to the Supreme Court s opinion in Blanton v. City of North Las Vegas, 489 U.S. 538 (1989), to guide our analysis of whether an offense is serious under Section 24. Blanton stressed that the most relevant criterion for determining whether an offense is serious is the severity of the maximum authorized penalty. 489 U.S. at 541 (quoting Baldwin v. New York, 399 U.S. 66, 68 (1970) (plurality opinion)). Derendal similarly noted that we leave to the legislature primary responsibility for determining, through its decision as to the penalty that accompanies a misdemeanor offense, whether the offense qualifies as a serious offense. 209 Ariz. at 422 ¶ 21, 104 P.3d at 153. ¶10 [W]hen misdemeanor and incarceration, we the legislature punishable will by presume classifies no that more an offense than six offense to be as a months a petty offense that falls outside the jury requirement of Article 2, Section 24 of the Arizona Constitution. Id.; see Blanton, 489 U.S. at 543 (adopting similar presumption). 5 Under that test, the misdemeanor charges against Fushek are presumptively not jury-trial eligible.4 ¶11 The legislature s Supreme view Court as to noted the in Blanton seriousness of a that crime a can be reflected not only in the maximum authorized prison term, but also in the other penalties that it attaches to the offense. 489 U.S. at 542. carrying a Thus, in Derendal, we held that an offense jury-trial maximum exposure eligible additional grave if of the six months defendant consequences that can incarceration demonstrate attend a is that misdemeanor conviction reflect a legislative determination that the offense is indeed serious. 209 Ariz. at 422 ¶ 21, 104 P.3d at 153. A defendant attempting to rebut the presumption that a crime is petty must consequence. statutory establish First, Arizona law. three the things penalty Id. at must 422 (citing Blanton, 489 U.S. at 543 n.8). must be severe. about an arise ¶ 23, 104 additional directly P.3d at from 153 Second, the consequence Id. at 423 ¶ 24, 104 P.3d at 154. Finally, we will consider only those consequences that apply uniformly to all persons convicted of a particular offense. Id. at 423 ¶ 25, 104 P.3d at 154. 4 The assault charge, a class 3 misdemeanor, carries a maximum incarceration period of thirty days. A.R.S. §§ 13707(A), 13-1203(A)(3) (2001). Contributing to the delinquency of a minor, a class 1 misdemeanor, carries a maximum sentence of six months. A.R.S. §§ 13-707(A), 13-3613(A) (2001). 6 ¶12 The parties agree that the first prong of this test is satisfied registration the potential arises consequence directly §§ 13-118 and 13-3821. from of Arizona sex offender statutes, A.R.S. The parties disagree, however, on the application of the uniformity and severity prongs. A. ¶13 The court of appeals concluded that the requirement of uniformity was not met because, even if the State proves sexual motivation beyond discretion under a reasonable § 13-3821(C) doubt, whether the to trial order court sex has offender registration. Fushek, 215 Ariz. at 278 ¶ 16, 159 P.3d at 588. The appeals court of believed that only mandatory statutory consequences satisfy the Derendal uniformity requirement. ¶14 We disagree. Id. The uniformity requirement avoids the anomalous situation where some persons would be entitled to a jury trial and others would not, although charged with exactly the same substantive Arizona crime. ¶ 25, 104 Strohson, P.3d 190 at Ariz. 154 (quoting 120, 125, Derendal, 209 Ariz. at 423 State 945 ex P.2d rel. 1251, McDougall 1256 v. (1997)). Accordingly, we will not consider a consequence arising from a statutory scheme unless the consequence would apply to every person convicted of the crime at the time of conviction. ¶15 For example, no jury trial is required for a misdemeanor drug offense simply because a conviction could cause 7 the later denial of an application for a professional license. See Stoudamire v. Simon, 213 Ariz. 296, 299 ¶ 12, 141 P.3d 776, 779 (App. 2006). Such a consequence would defendant who never applied for a license. not affect a We would thus be unable at the time of trial to determine whether the defendant faced that particular consequence. In contrast, in this case the State has made a special allegation of sexual motivation. If sexual motivation is found by the trier of fact, the justice court is authorized without requirement upon conviction. more to impose a registration A.R.S. § 13-3821(C); see Foote v. United States, 670 A.2d 366, 372 (D.C. 1996) (considering only judge-imposed imposed only proceedings right). penalties for in and refusing hypothetical purposes of the to civil Sixth consider or sanctions administrative Amendment jury-trial The uniformity requirement is met because every time a special allegation of sexual motivation is filed, the defendant against whom the allegation is made faces possible sex offender registration as part of the sentencing court s disposition of the case. ¶16 The fact that the trial judge is not required upon a finding of sexual motivation to impose sex offender registration does not mean that the potential consequence is not uniformly applied. It is enough that all defendants in such a position face the possibility of the consequence. 8 The maximum potential sentence determines whether a defendant has a right to a jury trial, even if the judge retains discretion to impose a lesser penalty. See Blanton, 489 U.S. at 541-42; Duncan v. Louisiana, 391 U.S. 145, 159-60 (1968). B. ¶17 Given its conclusion that the uniformity prong of Derendal was not satisfied, the court of appeals did not determine whether sex offender registration is a sufficiently severe consequence to require a jury trial under Article 2, Section 24.5 as a sex reflect[s] Our task is thus to determine whether registration offender a is such legislative indeed serious. a grave determination consequence that the that it offense is Derendal, 209 Ariz. at 422 ¶ 21, 104 P.3d at 153. 1. ¶18 The State argues that State v. Noble, 171 Ariz. 171, 829 P.2d 1217 (1992), compels the summary rejection of Fushek s jury trial claim. registration Noble held that the then-extant sex offender statute could be applied 5 to defendants who had The court of appeals seems to have assumed without deciding that the severity prong was met, stating without further analysis: Although this consequence arises from statutory law, and is one that can have severe collateral consequences, we cannot agree that it is uniformly applied as that term is defined in Derendal. Fushek, 215 Ariz. at 278 ¶ 15, 159 P.3d at 588 (emphasis added). 9 committed their crimes before the statute s enactment without violating the ex post facto clauses of the federal and state constitutions. Id. at 178, 829 P.2d at 1224. Noble concluded for the purposes of ex post facto analysis that the registration statute was more regulatory than punitive under the test set forth in (1963).6 Kennedy Id. v. Mendoza-Martinez, 372 U.S. 144, 168-69 The State therefore asserts that registration cannot be considered a statutory penalty under the Derendal collateral consequences test. ¶19 We reject the State s argument. The issue before us is not whether sex offender registration is criminal punishment for ex post facto purposes, but rather whether it is a statutory consequence reflecting a legislative determination that Fushek s alleged offenses are serious. As the Supreme Court has noted, the Mendoza-Martinez test addresses only whether a sanction is civil or criminal. Austin v. United States, 509 U.S. 602, 609- 6 Noble relied heavily on the particulars of the statute then before the Court, which limited access to information in the sex offender registry to law enforcement personnel and, in some cases, potential employers and government agencies. These restrictions significantly dampen[ed] [the registration statute s] stigmatic effect. 171 Ariz. at 177, 829 P.2d at 1223. 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), 133826(E)(1)(a). 10 10 & n.6 (1993). The test does not measure whether a sanction is sufficiently severe to trigger the right to jury trial under the Sixth Amendment. Cf. People v. Castellanos, 982 P.2d 211, 217 (Cal. 1999) (plurality opinion) ( [T]he method of analyzing what constitutes punishment varies depending upon the context in which the question arises. ). 2. ¶20 Fushek, in turn, asserts that this case is controlled by application of a simple mathematical formula. He starts from the premise that a potential sentence of six months and one day entitles a defendant to a jury trial. He then contends that six months incarceration plus sex offender registration is a more severe penalty than six months plus one day of imprisonment and that a jury trial is therefore automatically warranted when sex offender registration is authorized. ¶21 We also reject this mechanistic approach. In Blanton the defendant was exposed not only to a sentence of six months, but also to a fine, loss of his driver s license, and a requirement to attend an alcohol abuse course. 489 U.S. at 539- 40. exposure Virtually additional day all of defendants imprisonment would to accept avoid these to an consequences. Blanton nonetheless held that, for Sixth Amendment purposes, the consequences were not so severe, even when viewed together with the maximum prison term, to compel 11 the conclusion that the offense was viewed as serious by the Nevada legislature. Id. at 544. 3. ¶22 The constitutional issue before us cannot be resolved by the approaches suggested by the State and Fushek. Rather, we must determine whether this is a rare situation, Blanton, 489 U.S. at 543, in which the additional statutory penalty, viewed in conjunction incarceration, with id., the maximum reflect[s] a authorized legislative that the offense is indeed serious. 422 ¶ 21, 104 P.3d at 153. period of determination Derendal, 209 Ariz. at To do this, we must examine the specific provisions of the sex offender registration statutes. ¶23 These statutes do not provide for termination of the registration requirement, except for registrants who committed offenses as juveniles. See A.R.S. § 13-3821(F)-(H).7 imposed, registration sex offender is a lifelong Thus, once obligation. See Fisher v. Kaufman, 201 Ariz. 500, 502 ¶ 8, 38 P.3d 38, 40 (App. 2001); State v. Lammie, 164 Ariz. 377, 382-83, 793 P.2d 7 Under A.R.S. § 13-3826(E)(2), the community notification guidelines committee was required to submit a recommendation to the governor and the legislature about a process by which a court could determine if an offender is no longer required to register. The committee simply recommended that the legislature continue to study and analyze whether such a process is the appropriate public policy for this state. Ariz. State Leg., Community Notification Guidelines Comm., Final Report, Dec. 15, 2004, available at http://azmemory.lib.az.us/. 12 134, 139-40 (App. 1990). The duration of the registration requirement makes this statutory consequence much more severe than a comparatively short probation period. v. Nachtigal, Amendment 507 does not U.S. 1, require 5 a (1993) jury See United States (holding trial that the when the the offender Sixth potential penalty is five years of probation). ¶24 At the time of registration, must provide, in addition to any other information required by the director of the Department of Public Safety, all names by which he is known, his mailing address, his physical residence, fingerprints, photograph, any required online identifiers, 8 and the names of the websites or internet communication services where those identifiers are used. A.R.S. § 13-3821(I). For his entire life, the registrant must annually update his records and obtain a new state identification card, even if no changes have occurred since the last update. ¶25 Id. § 13-3821(J). For the rest of his life, a sex offender must notify law enforcement within seventy-two hours of any move or change of name. Id. § 13-3822(A)-(B). A move requires notification to sheriffs in both the original county and the destination county; each must be informed in writing, and the latter must also be 8 Required online identifier means any electronic e-mail address information or instant message, chat, social networking or other similar internet communication name, but does not include social security number, date of birth, or pin number. A.R.S. § 13-3821(Q)(2). 13 informed in person. Id. An offender who studies or works at an institution of postsecondary education must initially notify the county sheriff of that jurisdiction and keep him informed of any changes in enrollment or employment status. Id. § 13-3821(N). A transient offender must register with the local sheriff every ninety days. Id. § 13-3822(A). If an offender changes a required online identifier, he must notify the sheriff within seventy-two hours and before using the identifier. 3822(C). Id. § 13- An offender who fails to register is guilty of a class 6 felony, and a registrant who does not keep his information updated is guilty of a class 4 felony. Id. § 13-3824. Those offenses carry, respectively, one-year and two-and-one-half-year presumptive prison sentences for first-time offenders. Id. § 13-701(C) (2001). ¶26 Widespread registration. name, publicity accompanies sex For a level two or three offender, the offender s address, age, current photograph, conviction, assessment level appear on the sex offender website. 3827(A)-(B).9 notify the offender and risk Id. § 13- A sheriff or local law enforcement official must community of the 9 offender s presence in the A sex offender is assigned a risk assessment level based on the risk he poses to the community. A.R.S. § 13-3826(E)(1). Risk assessment is conducted by law enforcement agencies. Id. § 13-3825. 14 community. Id. § 13-3825(C). For level two and three offenders, the notification must be made to the surrounding neighborhood, area schools, appropriate community groups and prospective employers. The notification shall include a flyer with a photograph and exact address of the offender as well as a summary of the offender s status and criminal background. A press release and a level two or level three flyer shall be given to the local electronic and print media to enable information to be placed in a local publication. Id. § 13-3826(E)(1)(a). enforcement resides. may notify Id. For the level people one with § 13-3826(E)(1)(b). offenders, whom For the law offender offenders who are students or employees of postsecondary education institutions, law enforcement of the institution and, in some instances, the campus community. Id. § 13-3825(G). communicate must The with notify the Department businesses administration of and Public Safety organizations may that also offer electronic communication services about whether an offender s online identifier is being used on their systems. 3827(E). The statutory requirements of warnings Id. § 13to various communities about the identities and presence of sex offenders confirm crimes. that the legislature views sex offenses as serious Cf. Noble, 171 Ariz. at 177, 829 P.2d at 1223 (noting potential stigmatic effect of widespread access to sex offender registration information). 15 ¶27 Indeed, almost offender registration felonies, recidivist A.R.S. § 13-3821(A), 2007); §§ 13-3551 all is the to crimes authorized behavior, (C); other or to (2001 against -1424 & which required crimes §§ 13-1401 -3559 or for involve children. (2001 Supp. sex & Supp. 2007). The authorization of registration for misdemeanors involving sexual motivation strongly suggests that the legislature views such crimes as similar to these other plainly serious offenses. ¶28 Furthermore, A.R.S. § 13-118 requires that the State prove sexual motivation beyond a reasonable doubt, making this factor akin to an element of an aggravated offense. See In re Winship, 397 U.S. 358, 364 (1970) (holding that a defendant cannot be constitutionally convicted without proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged ). misdemeanor. additional See elements A.R.S. are For example, simple assault is a § 13-1203. present, aggravated assault, a felony. a If, however, prosecutor certain may charge Id. § 13-1204 (Supp. 2007). view the allegation of sexual motivation as analogous: We § 13-118 involves behavior that the legislature views as more serious than the simple misdemeanor charges to which the sexual motivation allegation is added. ¶29 Finally, the bill that adopted A.R.S. § 13-118 demonstrates that the legislature views misdemeanors committed 16 with sexual motivation as serious offenses. the objective of the bill. (articulating Public safety was 1995 Ariz. Sess. Laws, ch. 257, § 10 legislative findings). This paramount governmental interest was expressly stated as the justification for the reduced privacy that community notification entails for those who are required to register. Id. The importance the bill places on protecting the public from sex offenders reflects a legislative view that those who commit offenses with sexual motivation have engaged in more than simple petty crimes. ¶30 In light of these factors, we conclude that the potential of sex offender registration reflects a legislative determination that Fushek has been charged with serious crimes. As the Supreme Court noted in Blanton, [t]he judiciary should not substitute its judgment as to seriousness for that of a legislature, which is far better equipped to perform the task. 489 U.S. at 541-42 (quoting Landry v. Hoepfner, 840 F.2d 1201, 1209 (5th Cir. 1988)) (internal quotation marks omitted). We defer to the legislature s determination that misdemeanor crimes involving sexual motivation are serious offenses and hold that when a defendant special to allegation the of possibility sexual of sex motivation offender exposes a registration, Article 2, Section 24 of our Constitution entitles the defendant to a trial by jury. 17 III. ¶31 For the foregoing reasons, we vacate the opinion of the court of appeals and affirm the order of the superior court granting special action relief. _______________________________________ Andrew D. Hurwitz, Justice CONCURRING: _______________________________________ Ruth V. McGregor, Chief Justice _______________________________________ Rebecca White Berch, Vice Chief Justice _______________________________________ W. Scott Bales, Justice _______________________________________ A. John Pelander, Judge* * Justice Michael D. Ryan took no part in the decision in this matter. Pursuant to Article 6, Section 3 of the Arizona Constitution, the Honorable A. John Pelander, Chief Judge of the Arizona Court of Appeals, Division Two, was designated to sit in his stead. 18

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