Torrefranca v. Shinn

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DELMO FIGORA TORREFRANCA, Plaintiff/Appellant,

v.

DAVID SHINN, et al., Defendants/Appellees.

No. 1 CA-CV 23-0101
FILED 11-09-2023

Appeal from the Superior Court in Maricopa County
No. CV2022-091125
The Honorable Stephen M. Hopkins, Judge Retired

AFFIRMED

COUNSEL

Delmo Figora Torrefranca, Mesa
Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Rebecca Banes, Patrick J. Boyle
Counsel for Defendants/Appellees

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Anni Hill Foster joined.
 TORREFRANCA v. SHINN, et al.
Decision of the Court

C A T T A N I, Judge:

¶1 Delmo Figora Torrefranca was released from prison in 2021
after serving a 20-year sentence for sexual offenses. After his release, he
filed a complaint alleging he was wrongfully imprisoned beyond the date
he should have been released. He named as defendants the Arizona
Department of Corrections, Rehabilitation, and Reentry (“ADCRR”), then-
Director David Shinn, Correctional Officers Ramon Billyard, Dennis
Raddatz, Vince Rowley, and former Director Charles Ryan (collectively
“Defendants”). The superior court dismissed the complaint, and
Torrefranca now appeals. For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2001, a jury convicted Torrefranca of three counts involving
sexual offenses with a minor under the age of fifteen, all dangerous crimes
against children. On June 4, 2001, the court sentenced him to 20 years in
prison, less 128 days for presentence incarceration credit. The court
imposed a term of community supervision, stating that Torrefranca “shall
serve one day for every seven days of the sentence imposed under the
supervision of the Community Supervision Program” consecutive to his 20-
year sentence. The court also placed Torrefranca on lifetime probation.

¶3 In 2002, this court affirmed Torrefranca’s convictions and
sentence on appeal. See State v. Torrefranca, No. 1 CA-CR 01-0537 (Ariz.
App. Oct. 1, 2002). Torrefranca subsequently unsuccessfully pursued post-
conviction relief under Arizona Rule of Criminal Procedure 32 on multiple
occasions. See State v. Torrefranca, No. 1 CA-CR 04-0833 PRPC (Ariz. App.
Aug. 11, 2005); State v. Torrefranca, No. 2 CA-CR 2015-0449-PR, 2016 WL
314299 (Ariz. App. Jan. 26, 2016); State v. Torrefranca, No. 1 CA-CR 16-0435
PRPC, 2017 WL 4413903 (Ariz. App. Oct. 5, 2017).

¶4 While incarcerated, Torrefranca filed a grievance with
ADCRR challenging the calculation of his release date. ADCRR responded,
informing Torrefranca that his calculated release date was January 22, 2021,
with two years and ten months of community supervision to follow.
Torrefranca did not further pursue his grievance.

¶5 After being released from prison, Torrefranca filed a
complaint against Defendants alleging that (1) ADCRR wrongfully
imprisoned him by holding him in prison past March 2018, (2) ADCRR
illegally added community supervision to his 20-year sentence, (3) ADCRR
wrongfully imposed lifetime probation, (4) ADCRR wrongfully required

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him to register as a sex offender, and (5) the individual defendants were
liable for his damages because they were not acting within the scope of their
employment.

¶6 Defendants filed a motion to dismiss, which the court
granted. Defendants lodged a form of judgment with the superior court,
and Torrefranca filed a premature notice of appeal, which became effective
with the court’s entry of final judgment. We have jurisdiction under A.R.S.
§ 12-2101(A)(1).

DISCUSSION

¶7 Torrefranca contends the superior court erred by dismissing
his complaint. We review de novo the dismissal of a complaint for failure
to state a claim. See Ariz. R. Civ. P. 12(b)(6); Coleman v. City of Mesa, 230
Ariz. 352, 355, ¶ 7 (2012). We will affirm a dismissal under Rule 12(b)(6) if
the plaintiff is not entitled to relief under “any interpretation of the facts
susceptible of proof.” Coleman, 230 Ariz. at 356, ¶ 8 (citation omitted).

¶8 Preliminarily, Torrefranca asserts that the superior court
dismissed his complaint without considering his response to Defendants’
motion to dismiss. The superior court initially granted the motion because
of Torrefranca’s purported failure to respond. But after Torrefranca filed a
motion to reconsider pointing out that he had filed a response, the court
acknowledged its mistake and directed Defendants to file a reply. The court
subsequently denied the motion to reconsider, noting that it had reviewed
and considered Torrefranca’s response and reaffirming its ruling granting
Defendants’ motion to dismiss. Thus, Torrefranca’s assertion that the court
did not consider his response is unavailing.

I. Challenges to Convictions and Sentence.

¶9 Torrefranca’s civil complaint essentially challenges his
sentence and the imposition of probation. But this court previously
affirmed Torrefranca’s convictions and sentence on direct appeal, and his
challenges under Rule 32 were similarly rejected. See supra ¶ 3. A civil
complaint may not be used to collaterally attack a criminal conviction or
sentence. State ex rel. Collins v. Superior Court, 157 Ariz. 71, 75 (1988). Thus,
to the extent Torrefranca’s complaint challenges the length of the prison
sentences imposed after he was convicted of sexual offenses, the superior
court properly rejected his arguments.

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Decision of the Court

II. Unlawful Additions to Sentence.

¶10 Torrefranca contends that ADCRR unlawfully added
community supervision and lifetime probation to his sentence. But the
sentencing court, rather than Defendants, imposed community supervision
“to be served consecutively to the actual period of imprisonment” for one
count as well as lifetime probation for two counts. Torrefranca’s assertion
that ADCRR unlawfully added community supervision and lifetime
probation to his sentence thus fails.

¶11 Torrefranca also argues that ADCRR unlawfully required him
to register as a sex offender. But ADCRR was required to do so. See A.R.S.
§ 13-3821(B) (mandating sex-offender registration for any person convicted
of any offense listed in § 13-3821(A), including sexual conduct with a minor
under § 13-1405).

¶12 Torrefranca further contends that, under A.R.S. § 41-1604.10
(in effect at the time of his sentencing), he should have been released after
serving 85% of his sentence, and that ADCRR thus wrongfully imprisoned
him by holding him in prison an additional 1,043 days. Arizona law,
however, provided that “a person sentenced for a dangerous crime against
children in the first degree . . . is not eligible for suspension of sentence,
probation . . . or release from confinement on any basis . . . until the sentence
imposed by the court has been served.” A.R.S. § 13-604.01(G) (1998).

¶13 Here, Torrefranca was convicted of sexual conduct with a
minor under the age of fifteen, which is a dangerous crime against children
in the first degree. See A.R.S. § 13-604.01(L)(1)(e) (1998). Thus, he was
required to serve every day of his 20-year sentence (with credit for 128 days
of presentence incarceration) and was not eligible to earn early release
credits.

¶14 Finally, Torrefranca’s contention that community supervision
entitled him to early release or a shorter sentence is similarly unavailing.
The court’s sentencing order clearly stated that Torrefranca’s community
supervision term was to be served consecutively, i.e., after completion of his
sentence. Thus, Torrefranca’s allegation that ADCRR wrongfully
imprisoned him by holding him past his release date fails.

¶15 Because Torrefranca would not be entitled to relief under any
interpretation of the facts susceptible of proof, his complaint failed to state

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a claim on which relief could be granted. Accordingly, the superior court
did not err by dismissing the complaint.1

¶16 Finally, Torrefranca requests attorney’s fees and costs on
appeal. However, Torrefranca has not prevailed and is not entitled costs.
As a self-represented litigant, Torrefranca has not incurred any fees, and in
any event, he is not entitled to recoup fees having failed to prevail on
appeal.

CONCLUSION

¶17 We affirm.

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

1 Defendants correctly note that Torrefranca’s state-law claims also
fail against the individual defendants because they were acting within the
scope of their legal duty. See A.R.S. § 31-201.01(F) (“Any and all causes of
action that may arise out of tort caused by the [ADCRR] director, prison
officers or employees of the department, within the scope of their legal
duty, shall run only against the state.”). The claims against ADCRR also
fail because it is a non-jural entity not subject to lawsuit under its enabling
legislation. A.R.S. § 41-1602. But even if Torrefranca had sued the proper
party—the State—his claims were properly dismissed on the merits for the
reasons stated above.

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