In Re: Ms 2015-000003

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE: MH2015-000003

No. 1 CA-MH 23-0177 SP
FILED 06-11-2024

Appeal from the Superior Court in Maricopa County
No. MS2015-000003
The Honorable Thomas A. Kaipio, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph Cada, Aubrey Joy Corcoran
Counsel for Appellee State of Arizona

Maricopa County Legal Defender’s Office, Phoenix
By Robert Seton Shipman
Counsel for Appellant
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MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Daniel J. Kiley and Judge D. Steven Williams joined.

C A T T A N I, Judge:

¶1 In 2016, a jury determined that D.M. was a sexually violent
person (“SVP”) under A.R.S. § 36-3707(B)(1), and he was committed to the
Arizona Community Protection and Treatment Center (“ACPTC”) at the
Arizona State Hospital (“ASH”). In 2023, he filed a petition requesting
release to a less restrictive alternative (still involving residency at ASH).
The superior court granted release to a less restrictive alternative, but
rejected D.M.’s objections to ”boilerplate” release conditions. On appeal,
D.M. challenges the release conditions imposed, arguing primarily that the
superior court improperly denied his request for an evidentiary hearing
regarding the need for those conditions. For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 D.M. was committed to ACPTC in October 2016 after multiple
incidents of exposing himself to children. Under A.R.S. § 36-3708(A), a
person committed as an SVP is examined annually by a mental health
professional to determine whether “conditional release to a less restrictive
alternative is in the best interest of the person and will adequately protect
the community.” If the mental health professional recommends any change
to release conditions, “the court shall hold a hearing pursuant to § 36-3709.”
A.R.S. § 36-3708(C).

¶3 Psychologist Dr. Carlos Jones examined D.M. in 2022 and
opined that conditional release to a less restrictive alternative was in D.M.’s
best interest and that the community would be adequately protected. Dr.
Jones recommended that D.M. be placed in ACPTC’s Less Restrictive
Alternative (“LRA”) program, and D.M. filed a petition requesting
conditional release to the program based on that recommendation. The
State did not oppose the recommended status change within ASH provided
the court ordered D.M. to comply with standard release conditions.

¶4 D.M. requested an evidentiary hearing to address objections
to release conditions, and the superior court directed the parties to file

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supplemental memoranda addressing whether an evidentiary hearing was
required. The State did so, asserting there is no statutory basis for an
evidentiary hearing on objections to proposed release conditions. D.M. did
not file a supplemental memorandum and instead filed a motion seeking
review of the LRA conditions. The motion asserted that “boilerplate”
release conditions were unwarranted and that conditions should instead be
imposed on a “case-by-case basis.” The motion did not address whether an
evidentiary hearing was required.

¶5 In June 2023, the court heard oral argument on whether D.M.
was entitled to an evidentiary hearing regarding conditions of release. The
court ruled that D.M. was entitled to a hearing on his objections to release
conditions but not to an evidentiary hearing or to present expert testimony.
The court then stated that the parties could address specific objections to
release conditions at the next hearing.

¶6 In September 2023, the court heard argument from the parties
on the State’s proposed release conditions and took the matter under
advisement. The court then issued its ruling placing D.M. in the LRA
program but imposing the release conditions recommended by the State.
D.M. timely appealed, and we have jurisdiction under A.R.S. § 12-
2101(A)(10).

DISCUSSION

¶7 D.M. argues that the superior court’s denial of his request for
an evidentiary hearing and opportunity to present expert testimony
violated his constitutional due process rights to challenge the necessity of
conditions proposed by the State under A.R.S. § 36-3710. We review
constitutional issues and issues of statutory interpretation de novo. See
State v. Matthews, 245 Ariz. 281, 283, ¶ 5 (App. 2018); State v. Hoggatt, 199
Ariz. 440, 442, ¶ 4 (App. 2001).

I. Due Process and Alleged Entitlement to Evidentiary Hearing.

¶8 Under A.R.S. § 36-3710(D), the superior court must impose
conditions on release to a less restrictive alternative as required to protect
the community:

Before the court authorizes a person’s conditional release to a
less restrictive alternative, the court shall impose any
conditions on the person that the court determines are
necessary to ensure the safety of the community. . . . The court
shall order the superintendent of the state hospital to

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investigate the less restrictive alternative and to submit
additional conditions to the court. The court shall give a copy
of the conditions of release to the person and to any
designated service provider.

¶9 Section 36-3710 does not reference an evidentiary hearing.
But A.R.S. § 36-3709(A) details the procedures required for a petition for
change of status for a person committed to ASH under the SVP statutes.
That statute provides that the superior court “shall hold a hearing on the
petition for conditional release to a less restrictive alternative within forty-
five days after receiving the petition.” A.R.S. § 36-3709(A). Although the
State argues that D.M. did not have a right to an evidentiary hearing, we
need not address the scope of a hearing under § 36-3709 because D.M. did
not proffer any evidence or otherwise suggest that such evidence was
available or necessary.

¶10 D.M. objected to some of the proposed conditions of release,
but he did not seek evidentiary development. His motion merely asserted
that the proposed “Boilerplate Release Conditions” had “no reasonable
basis in fact or law,” and that imposing such boilerplate conditions on “all
SVP’s [was] a de-facto violation of the requirements under § 36-3711(2) []
that a provider ‘presents a specific course of treatment for the person . . .’
on a case-by-case basis.” (Third alteration in original.) D.M. did not proffer
any evidence or witnesses who would testify regarding the conditions that
would be required by ASH if he were to be granted less-restrictive status.
See State v. Villalobos, 225 Ariz. 74, 82, ¶ 36 (2010) (rejecting challenge to
superior court’s refusal to permit expert testimony due to appellant’s
failure to make offer of proof). Accordingly, even assuming an evidentiary
hearing on release conditions may be warranted under some circumstances,
D.M. did not establish the need for one here. Cf. Am. Power Prods., Inc. v.
CSK Auto, Inc., 239 Ariz. 151, 154, ¶¶ 12–13 (2016) (holding that there is no
need for an evidentiary hearing without an assertion of disputed facts).

¶11 The superior court recognized that D.M. had a due process
right to be heard, and the court considered D.M.’s objections to the release
conditions. In addition to permitting written and oral argument regarding
the need for an evidentiary hearing, the court allowed D.M. to raise specific
objections to the conditions imposed. The court noted that it had reviewed
and considered D.M.’s petition, the State’s response, the State’s
supplemental memorandum regarding necessity of an evidentiary hearing,
D.M.’s motion regarding release conditions, the State’s response, and
ACPTC’s 90-day evaluation submitted by the State. Accordingly, D.M. was

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afforded due process regarding his challenge to the conditions imposed on
his release to a less-restrictive status within ASH.

II. Expert Testimony.

¶12 D.M. contends that he was improperly denied the right to
present expert testimony and that the denial was “egregious because the
court considered input from . . . experts provided by the State[] in
determining the necessity of [D.M.’s] conditions under § 36-3710.” But
D.M. did not retain an expert or request that the court appoint one. Nor
did he suggest what type of evidence an expert would provide regarding
conditions for less-restrictive status. Accordingly, D.M. has not established
that the court’s ruling regarding expert testimony had any bearing on his
case. See State v. Ayala, 178 Ariz. 385, 387 (1994) (“Decisions on the
admission and exclusion of evidence are left to the sound discretion of the
trial court, and will be reversed on appeal only when they constitute a clear,
prejudicial abuse of discretion.”) (citations omitted).

¶13 The fact that the court considered testimony from experts for
the State does not change the analysis. As noted above, A.R.S. § 36-3708(A)
requires a “psychiatrist, psychologist or other competent professional of the
state hospital or a licensed facility . . . [to] annually examine each person
who is committed” and further provides that “the person who conducts the
annual examination shall submit the examination report to the court.”
(Emphasis added.) Subsection (B) also provides that a person committed
to ASH under A.R.S. § 36-3707 “may retain, or on the request of an indigent
person the court may appoint, a competent professional to conduct the
examination.” A.R.S. § 36-3708(B). The court followed the procedures set
forth under the statute when it considered input from the State’s mental
health professionals (who recommended a change favorable to D.M.) in
making the determination to grant D.M.’s request for less-restrictive status.

III. Ruling on Release Conditions.

¶14 Finally, D.M. argues that the superior court’s ruling regarding
the conditions imposed was “conclusory” and failed to provide any
explanation as to why they were necessary under § 36-3710. The court’s
ruling, however, referenced the parties’ petitions, motions, oral arguments,
and Dr. Jones’ recommendation. Based on that information, the superior
court reasonably determined that the release conditions submitted by the
State were “necessary to ensure [D.M.’s] compliance with treatment and to
protect the safety of the community” and were “in the best interest of [D.M.]
or others pursuant to A.R.S. 36-3710(B) and A.R.S. 36-3710(D).”

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CONCLUSION

¶15 We affirm.

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

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