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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MORTIMER A. HYLTON, Plaintiff/Appellant,

v.

DAVID SHINN, et al., Defendants/Appellees.

No. 1 CA-CV 24-0547
FILED 05-08-2025

Appeal from the Superior Court in Maricopa County
No. CV2023-000845
The Honorable Dewain Fox, Judge

AFFIRMED

COUNSEL

Mortimer Alexander Hylton, Eloy
Plaintiff/Appellant Pro Se

Bergin Frakes Smalley & Oberholtze, Phoenix
By Brian M. Bergin, Kevin M. Kasarjian, Anthony R. Napolitano
Counsel for Defendant/Appellee

HYLTON v. SHINN, et al.
Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the Court, in
which Presiding Judge Cynthia J. Bailey and Judge Andrew M. Jacobs
joined.

H O W E, Judge:

¶1 Mortimer Hylton appeals from the superior court’s denial of
special action relief. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 1998, a jury convicted Hylton of two counts of conspiracy
to commit first-degree murder, see A.R.S. §§ 13-1003(D), -1105, and
attempted arson, see A.R.S. §§ 13-1001, -1704, for acts occurring in 1997.

¶3 During sentencing, the court orally pronounced that it would
“impose a mandatory sentence of 25 years to life in prison” and that “[t]he
understanding of the Court is that you must serve 25 calendar years before
you’re eligible for release.” In its written order, the court sentenced Hylton
to concurrent imprisonment terms of 25 years to life on the conspiracy
count and 11.25 years, with 407 days incarceration credit, on the arson
count. The court also ordered for both counts that Hylton “serve one day
for every seven days of the sentence imposed under the supervision of the
Community Supervision Program, to be served consecutively to the actual
period of imprisonment.”

¶4 In June 2022, Hylton wrote to the Arizona Department of
Corrections, Rehabilitation, and Reentry (the “Department”) requesting
clarification of his release date. The Department determined that he was
ineligible for parole under A.R.S. § 13-718 because he was convicted by a
jury but that he could apply for commutation after the completion of 25
years’ imprisonment in July 2022.

¶5 Hylton sought special action relief in the superior court. He
argued that the Department wrongly denied him access to the Community
Supervision Release Eligibility Procedure and Program and “altered his
sentence by making commutation the only release process available to
him.” He argued that such conduct violates his right to due process, equal

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protection, separation of powers, and ex post facto prohibition. For relief,
Hylton sought an order that the Department declare July 2, 2022, as his
“minimum sentence [sentence expiration date]” and that he is eligible for
A.R.S. § 13-603(I) “release eligibility/suitability processing.” He also sought
a declaration that the Department’s “commutation release policy” is
unconstitutional.

¶6 The court denied Hylton relief. It noted that under A.R.S. § 13-
1003(D), conspiracy to commit first-degree murder is punishable by “a
sentence of life imprisonment without possibility of release on any basis
until the service of twenty-five years.” See A.R.S. § 13-1003(D). The court
further noted that Hylton “is not eligible to apply for parole [but] he is
‘eligible for executive clemency or other forms of release after twenty-five
years[.]’” (Quoting State v. Anderson, 257 Ariz. 226, 231 ¶ 18 (2024).) The
court then concluded that the Department “has not deprived Hylton from
applying for such release.” It further explained that Hylton conflated
community supervision with parole and that any term of community
supervision would only begin if and when Hylton was released.

¶7 Hylton appealed, and we have jurisdiction. A.R.S. § 12-
2101(A)(1); Bridgeman v. Certa, 251 Ariz. 471, 473, 475 ¶¶ 2, 10–11 (App.
2021) (superior court’s denial of special action relief is a final judgment from
which we have appellate jurisdiction).

DISCUSSION

¶8 Hylton argues that the superior court erred by denying him
relief because it misconstrued his argument as demanding immediate
release. Instead, he argues he requested as relief only that the Department
begin procedures to determine if he is eligible for community supervision
release. Specifically, he argues that his sentence was a final illegally lenient
sentence that made him eligible for parole or community supervision. Thus,
he argues the Department was “required under Ariz. Rev. Stat. §§ 41-
[1]604.07(E)(F)(G)(I) in concert with 13-603(I) to initiate Community
Supervision [] release consideration review procedures to determine
whether Hylton was suitable for release into the Community Supervision
Program.” Finally, he argues that he was denied equal protection, due
process, and protection against ex post facto punishment because persons
sentenced to parole “are able to actually obtain release on parole, whereas
the class to which Hylton belongs are overwhelmingly unable to obtain
release on [community supervision] by application to the [Arizona Board
of Executive Clemency].”

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Decision of the Court

¶9 “We generally review the superior court’s denial of special
action relief for an abuse of discretion,” but consider any questions of law
de novo. Bridgeman, 251 Ariz. at 476 ¶ 16. By Hylton’s own admission, his
appeal presents only a purely legal question – whether a person sentenced
under A.R.S. § 13-1003(D) to a term of 25 years to life imprisonment is
eligible for conditional release procedures under A.R.S. § 41-1604.07(E)–(G),
(I) after serving 25 years in prison.

I. Hylton’s Claim That His Sentence Was Illegally Lenient.

¶10 Hylton’s sentence was not illegally lenient. An illegal
sentence does not comply with “the mandatory provisions of a sentencing
statute.” State v. Vargas-Burgos, 162 Ariz. 325, 326 (App. 1989). Under A.R.S.
§ 13-1003(D), conspiracy to commit a class 1 felony such as first-degree
murder is “punishable by a sentence of life imprisonment without
possibility of release on any basis until the service of twenty-five years.”
The court’s sentence complies with the statute. The written order sentenced
Hylton to “25 Years to Life.” And in its oral pronouncement, the court
“impose[d] a mandatory sentence of 25 years to life in prison” and told him
that “[t]he understanding of the Court is that you must serve 25 calendar
years before you’re eligible for release.” Neither the court’s written order
nor its oral pronouncement made him eligible for release before he had
served at least 25 years in prison.

¶11 Hylton nonetheless argues that the sentence was illegally
lenient because his sentence makes him eligible for community supervision,
necessarily implying that A.R.S. § 13-1003(D) prohibits a term of
community supervision. But the court ordered that he “serve one day for
every seven days of the sentence imposed under the supervision of the
Community Supervision Program, to be served consecutively to the actual
period of imprisonment.” (Emphasis added.) This term has effect only if
Hylton is actually released from prison. See A.R.S. § 13-603(I) (“The term of
community supervision shall be served consecutively to the actual period
of imprisonment.”) (emphasis added). Nor does his sentence permit his
release before 25 years or require that he be released at any time between
25 years and the end of his life. Thus, the term of community supervision
does not illegally alter the requirements of A.R.S. § 13-1003(D).

II. Hylton’s Claim He Is Entitled to Be Considered for Community
Supervision.

¶12 Although Hylton implicitly argues that the Department must
initiate community supervision release eligibility procedures only if his

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sentence is illegally lenient, we nevertheless address the scope of his
sentence at large.

¶13 Hylton’s sentence does not require the Department to release
or consider releasing him to community supervision before the end of his
life. Hylton was sentenced to “25 Years to Life,” and his sentencing statute
provides that he is punishable by “a sentence of life imprisonment without
possibility of release on any basis until the service of twenty-five years.”
A.R.S. § 13-1003(D). Although Hylton argues this creates a “minimum
sentence expiration date” of 25 years, the term of Hylton’s sentence is
“indeterminate life,” not “25 years.” See State v. Soto-Fong, 250 Ariz. 1, 4, 12
¶¶ 4, 49 (2020) (noting defendant was sentenced to “consecutive life
sentences” who was sentenced to “three consecutive life sentences without
the possibility of release for twenty-five years”); State v. Vera, 235 Ariz. 571,
575 ¶¶ 15–17 (App. 2014) (statute effectively created an “indeterminate life
sentence” by providing that “the defendant shall not be released on any
basis until the completion of the service of twenty-five calendar years”).

¶14 Further, by its plain language, A.R.S. § 13-1003(D) creates a
negative prohibition but no positive obligation. Specifically, the statute
prohibits release before service of 25 years but does not create any automatic
community supervision release process after service of 25 years. See
Chaparro v. Shinn, 248 Ariz. 138, 142 ¶ 17 (2020) (Community supervision is
not parole because “the meaning of ‘parole’ is not ambiguous or
synonymous with other forms of release.”); Vera, 235 Ariz. at 575 ¶ 17
(when statute provided that defendant could not be released on any basis
before service of 25 years, defendant’s “only possibilities for release . . .
would be through a pardon or commutation by the governor” because
parole is unavailable). In other words, the statute does not impose any
positive obligation on the Department to begin release procedures for
Hylton after service of 25 years of his sentence. Rather, the statute prohibits
Hylton from obtaining release before he has served 25 years and permits
him to seek any statutory or administrative mechanisms for his release
thereafter. Anderson, 257 Ariz. at 231 ¶ 18 (“[B]ecause Anderson’s sentence
provided for the possibility of release after twenty-five years, Arizona law
made him eligible for executive clemency or other forms of release after
twenty-five years but not eligible for parole.”). Accordingly, A.R.S. § 13-
1003(D) does not entitle Hylton to be considered for community release
after 25 years of service.

¶15 For similar reasons, the imposition of a term of community
supervision after his term of actual imprisonment also does not require the
Department to consider his suitability for release on community

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supervision. Under the community supervision statute, the court must
impose a term of community supervision on all persons convicted of a
felony offense whom the court sentences to a term of imprisonment. A.R.S.
§ 13-603(I). But the defendant serves the community supervision term
“consecutively to the actual period of imprisonment.” A.R.S. § 13-603(I)
(emphasis added). Thus, the community supervision term is separate from
the term of imprisonment and begins only if the defendant is released from
prison. Practically, if the defendant serves a life sentence, he will never
serve his term of community supervision. See, e.g., Soto-Fong, 250 Ariz. at 4
¶ 4 (recognizing that defendant who was sentenced to three consecutive life
sentences without the possibility of release for twenty-five years “will not
be eligible for release until he has served 109 years of imprisonment”
(including other non-life sentences)). In other words, nothing in the
language of the statute requires the Department to permit a defendant
sentenced to a life sentence to serve a term of community supervision
during his lifetime.

¶16 Finally, the “earned release credit” system of A.R.S. § 41-
1604.07 does not change this analysis. Section 41-1604.07(A) allows a
prisoner “who is in the eligible earned release credit class” to earn “release
credits.” A prisoner who has reached his “earned release date” shall be
released to begin his term of community supervision. A.R.S. § 41-
1604.07(E). Section 41-1604.06(A) further sets forth that the director of the
Department shall establish eligibility criteria and classifications.

¶17 But Hylton has not reached an “earned release date” to begin
the process for release to community supervision. He does not argue that
he has earned any release credits to this point (nor does he argue the
Department has miscalculated an earned release date). Nor could he. Under
the Department’s classification system, an inmate cannot earn credits
“when sentenced pursuant to a statute that . . . requires a mandatory
minimum amount of time be served prior to placement in [the earning
class].” Ariz. Dep’t Corr. Rehab. & Reentry Dep’t Ord. 1002 ¶ 1.4.1.1.
Because A.R.S. § 13-1003(D) does not allow any possibility of release before
service of 25 years in prison, Hylton could not earn release credits during
this period. See Vera, 235 Ariz. at 575 ¶ 17 (the “earned release credits”
system “has no ready application to an indeterminate life sentence”); A.R.S.
§ 41-1604.07(C) (“Release credits earned by a prisoner . . . shall not reduce
the term of imprisonment imposed by the court on the prisoner.”). Thus,
Hylton did not reach an “earned release date” upon completion of 25 years
of imprisonment, and the Department was not obligated to begin
community supervision release procedures.

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¶18 Because Hylton has no affirmative right to consideration for
community supervision under A.R.S. § 13-1003(D), the Department was not
obligated to begin community supervision release proceedings. The court
thus did not err by denying Hylton special action relief.

III. Constitutional Claims.

¶19 Hylton argues the Department denied his rights to equal
protection, due process, and to be free from ex post facto laws for the same
reasons that he contends the Department wrongly denied consideration of
community supervision release. Specifically, he argues that “[t]he disparate
treatment is shown by allowing persons who are similarly situated to be
classified eligible for and released on parole under §§ 13-716 and 13-718 and
under Chapparo v. Shinn [].”

¶20 Hylton’s equal protection claim fails because he is not
similarly situated to the described persons. See Vong v. Aune, 235 Ariz. 116,
123 ¶ 32 (App. 2014) (to establish an equal protection violation, the party
must show that “it was treated differently than other people in a ‘similarly
situated’ class”) (cleaned up). Section 13-716 applies to juvenile offenders,
Section 13-718 applies to offenders who pled guilty and were sentenced to
“life with the possibility of parole” (emphasis added), and Chapparo
addressed a case where the court sentenced the defendant to “[l]ife without
possibility of parole for 25 years” even though the legislature had
eliminated the possibility of parole. See 248 Ariz. at 140 ¶ 3. Hylton was not
a juvenile when he committed his crimes, he did not plead guilty, and the
court did not sentence Hylton to parole. Thus, Hylton is not “similarly
situated” to the persons in either of the complained of cases and so cannot
establish an equal protection violation. See Vong, 235 Ariz. at 123 ¶ 32.

¶21 Finally, Hylton fails to develop arguments about how the
Department violated his rights to due process and freedom from ex post
facto laws, thus waiving them. See State v. Vargas, 249 Ariz. 186, 190 ¶ 13
(2020) (“[I]f a defendant simply asserts a general claim of error on appeal
and fails to develop it, a court is not obligated to consider it.”); State v.
Carver, 160 Ariz. 167, 175 (1989) (“Failure to argue a claim usually
constitutes abandonment and waiver of that claim.”); see also In re $26,980.00
U.S. Currency, 199 Ariz. 291, 299 ¶ 28 (App. 2000) (this Court does not
consider bald assertions offered without elaboration or citation to legal
authority).

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HYLTON v. SHINN, et al.
Decision of the Court

CONCLUSION

¶22 We affirm. We deny Hylton’s motion for an accelerated
appeal as moot.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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