State v. Morgan

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

DAVID R. MORGAN, Petitioner.

No. 1 CA-CR 18-0655 PRPC
FILED 4-9-2019

Petition for Review from the Superior Court in Maricopa County
No. CR2000-092886
CR2006-143360-001
CR2016-001642-001
CR2016-101957-001
CR2016-123290-001
The Honorable Joseph P. Mikitish, Judge
The Honorable John C. Rea, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

David R. Morgan, Florence
Petitioner
 STATE v. MORGAN
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.

B R O W N, Judge:

¶1 Petitioner David Morgan seeks review of the superior court’s
orders denying his petitions for post-conviction relief (“PCR”), filed
pursuant to Arizona Rule of Criminal Procedure 32.1. We have considered
the petition for review and, for the reasons stated, grant review and deny
relief.

¶2 In 2000, Morgan pled guilty to one count of failure to register
as a sex offender. The superior court suspended imposition of a sentence
and placed him on four years’ probation. The probation department
subsequently filed a petition to revoke Morgan’s probation. Morgan
admitted to a violation and the court reinstated probation. In 2001, the
probation department filed another petition to revoke Morgan’s probation,
and he again admitted to a violation. The court sentenced Morgan to two-
and-one-half years’ imprisonment.

¶3 In 2006, Morgan pled guilty to one count of failure to register
as a sex offender, and the superior court sentenced him to a term of one-
and-one-half years’ imprisonment.

¶4 Ten years later, Morgan entered three separate plea
agreements, pleading guilty to two counts of failure to register as a sex
offender (CR2016-001642-001; CR2016-123290-001) and one count of
possession or use of dangerous drugs (CR2016-101957-001). The superior
court imposed a five-year prison term for the drug count and lifetime
probation for each count of failure to register as a sex offender.

¶5 Morgan filed a PCR notice seeking relief from the 2016, 2006,
and 2000 plea agreements. After appointed counsel informed the court
there were no colorable claims for relief, Morgan filed five pro per PCRs.

¶6 In CR2016-001642-001, the superior court denied the petition
after a thorough analysis, finding in relevant part that (1) the PCR notices
to the 2006 and 2000 convictions were not timely, which limits the claims
for those convictions; (2) Morgan’s assertion that the grand juries were

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 STATE v. MORGAN
Decision of the Court

given incorrect information about his criminal history was not within the
limited review available to the 2006 and 2000 convictions and Morgan did
not explain how the “purported prosecutorial mistake would affect his
conviction or sentence” in the 2016 cases; (3) sex offender registration is not
an ex post facto law; and (4) “the sex offender registration provisions do not
violate double jeopardy.” A different judge later dismissed Morgan’s other
PCRs, relying on the prior ruling in CR2016-001642-001. This petition for
review followed.

¶7 Absent an abuse of discretion or error of law, this court will
not disturb a superior court’s ruling on a petition for post-conviction relief.
State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). It is Morgan’s burden to
show the court abused its discretion. See State v. Poblete, 227 Ariz. 537, 538
¶ 1 (App. 2011).

¶8 Morgan argues the retroactive application of the sex offender
registration statute, Arizona Revised Statute (“A.R.S.”) section 13-3821, to
his underlying 1993 conviction for attempted sexual assault violates both
his federal and state constitutional rights. Our supreme court, however,
has determined that the retroactive application of § 13-3821 is not violative
of either the state or federal constitutional prohibitions against ex post facto
laws because the statute is “regulatory in nature” rather than punitive. State
v. Noble, 171 Ariz. 171, 178 (1992); see also Smith v. Doe, 538 U.S. 84, 96 (2003)
(finding Alaska’s sex offender registration laws did not constitute ex post
facto punishment because the intent of Alaska’s legislature was to create a
nonpunitive regime). Similarly, retroactive application of § 13-3821 does
not violate state or federal constitutional proscriptions against cruel and
unusual punishments or double punishments for the same offense. State v.
Henry, 224 Ariz. 164, 172, ¶ 27 (App. 2010) (stating violations of the sex
offender registration statutes do not constitute double jeopardy “given our
conclusion that sex offender registration is a nonpunitive regulatory
scheme”); State v. Helmer, 203 Ariz. 309, 311, ¶ 9 (App. 2002) (concluding
§ 13-3821 is a continuing offense that does not violate ex post facto
principles because the statute “imposes continuing, lifetime duties on those
required to register”); cf. State v. Cameron, 185 Ariz. 467, 469 (App. 1996)
(finding sex offender registration for a defendant convicted of a
misdemeanor was not cruel and unusual punishment).

¶9 Morgan also contends he is not required to register as a sex
offender because registration was not ordered at his sentencing hearing in
1993. Morgan’s argument misconstrues the law. Only “discretionary
order[s] that a person register as a sex offender must occur at the time of
sentencing.” State v. Serrano, 234 Ariz. 491, 495, ¶ 13 (App. 2014); see A.R.S.

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 STATE v. MORGAN
Decision of the Court

§ 13-3821(C). Sex offender registration is an “automatic requirement” on
individuals convicted of the criminal offenses in § 13-3821(A), Serrano, 234
Ariz. at 493, ¶ 7, and it is the duty of “the state department of corrections in
conjunction with the department of public safety and each county sheriff”
to complete a defendant’s registration before he or she is released from
confinement, A.R.S. § 13-3821(B). In 1995, the legislature amended § 13-
3821(A), expanding the statute’s retroactive application to attempts of the
enumerated offenses in subsection A. 1995 Ariz. Sess. Laws, ch. 257, § 3 (1st
Reg. Sess.). Sexual assault is an enumerated offense, § 13-3821(A)(5); thus,
we reject Morgan’s argument that it was illegal for the Arizona Department
of Corrections to require him to register.

¶10 Morgan next argues the State provided misleading
information regarding his prior criminal history to the grand juries to
obtain his indictments. We do not address the merits of this argument
because Morgan’s guilty pleas waived any non-jurisdictional defense,
error, or defect that occurred prior to each plea, unless it affected the plea’s
validity. State v. Toulouse, 122 Ariz. 275, 277 (1979); see also State v. Reed, 121
Ariz. 547, 548–49 (App. 1979) (applying waiver to alleged errors in a grand
jury proceeding because such challenges are non-jurisdictional).

¶11 Finding no abuse of discretion, we grant review and deny
relief.

AMY M. WOOD • Clerk of the Court
FILED: AA

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