Adrian Gilbert Dominguez v. Hon. Metcalf

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

ADRIAN GILBERT DOMINGUEZ,
Petitioner,

v.

HON. D. DOUGLAS METCALF, JUDGE OF THE SUPERIOR COURT
OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA,
Respondent,

and

THE STATE OF ARIZONA,
Real Party in Interest.

No. 2 CA-SA 2023-0023
Filed May 24, 2023

Special Action Proceeding
Pima County Cause No. CR20202117001

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Megan Page, Pima County Public Defender
By David J. Euchner and Thomas A. Knauer, Assistant Public Defenders,
Tucson
Counsel for Petitioner

Laura Conover, Pima County Attorney
By Maile Belongie, Deputy County Attorney, Tucson
Counsel for Real Party in Interest
 DOMINGUEZ v. HON. METCALF
Opinion of the Court

OPINION

Judge Gard authored the opinion of the Court, in which Vice Chief Judge
Staring and Judge Eckerstrom concurred.

G A R D, Judge:

¶1 Adrian Dominguez seeks special action review of the
respondent judge’s order taking him into custody under Rule 7.2(c), Ariz.
R. Crim. P., after entering a plea of guilty except insane. Because that
provision applies only to defendants likely to be sentenced to
imprisonment, which is not the same as commitment to a secure mental
health facility, we accept special action jurisdiction and grant relief.

¶2 In March 2023, Dominguez pled guilty except insane to
manslaughter and leaving the scene of an accident that caused death or
serious physical injury. Dominguez was not in custody at the time of his
change-of-plea hearing. After accepting Dominguez’s plea, the respondent
judge ordered that he be “held in custody without bond pending
[s]entencing.” The respondent denied Dominguez’s motion to reconsider,
stating “commitment to the secure state mental health facility is within the
term of imprisonment as that term is used in the rule.” This petition for
special action followed. We granted Dominguez’s request to stay the order
that he be taken into custody. The respondent later committed Dominguez
to the Arizona State Hospital (ASH), to which Dominguez has
self-reported.

¶3 Dominguez has no remedy by appeal, and our review by
special action is therefore appropriate. See Star Publ’g Co. v. Bernini, 228 Ariz. 490, ¶ 3 (App. 2012); see also Ariz. R. P. Spec. Act. 1(a). The
question presented in this case is moot, however, because Dominguez was
committed to ASH. This court normally will not consider moot issues.
See Star Publ’g Co., 228 Ariz. 490, ¶ 3. But because this issue is of “great
public importance” and is “likely to be repeated in future cases,” we accept
special action jurisdiction. Id.

¶4 We review de novo the interpretation of a rule or statute. Fay
v. Fox, 251 Ariz. 537, ¶ 13 (2021). We begin with the language of the rule or
statute and, “when the language is clear and unequivocal, it is
determinative of the [rule or] statute’s construction.” See State v. Brearcliffe,

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 DOMINGUEZ v. HON. METCALF
Opinion of the Court

___ Ariz. ___, ¶ 22, 525 P.3d 1085, 1091 (2023) (quoting State v. Hansen, 215 Ariz. 287, ¶ 7 (2007)).

¶5 After a defendant is convicted, but before sentencing, a court
generally “may not release the defendant on bail or on the defendant’s own
recognizance” if “the defendant will, in all reasonable probability, receive a
sentence of imprisonment.” Ariz. R. Crim. P. 7.2(c)(1)(A). 1 Upon a
determination of guilt, the court “must enter judgment and either pronounce
sentence or set a date for sentencing.” Ariz. R. Crim. P. 26.2(b); see also Ariz.
R. Crim. P. 26.3. In contrast, after a verdict of guilty except insane, the court
is instead required to “commit the defendant to a secure mental health
facility.” Ariz. R. Crim. P. 25; see also A.R.S. § 13-3992(E).

¶6 In committing a defendant after a determination of guilty
except insane, the court first determines the presumptive sentence the
defendant could have received “if the defendant had not been found
insane.” A.R.S. § 13-502(D). That sentence is then suspended, and the
defendant is “committed to a secure state mental health facility under the
department of health services . . . for the length of that sentence.” Id.

¶7 Dominguez argues, and we agree, that commitment to a
mental health facility is not a “sentence of imprisonment” under Rule
7.2(c)(1)(A). First, “[a] finding of guilty-except-insane is not a criminal
conviction.” State v. Bomar, 199 Ariz. 472, ¶ 8 (App. 2001). The governing
statutes instead allow for “the imposition of rehabilitative alternatives more
humane than incarceration” intended to treat, not punish. Id. ¶ 9. We thus
concluded in Bomar that a defendant committed under § 13-502 has not
“been sentenced to a term of imprisonment” and is therefore not eligible for
presentence incarceration credit. Id. ¶ 8. The analysis in Bomar applies with
equal force here. Because commitment to ASH is not a term of
imprisonment, Rule 7.2(c)(1)(A) does not require the court to revoke a
defendant’s release when that defendant is found guilty except insane.

¶8 Second, a sentence of imprisonment is for a definite term,
see A.R.S. §§ 13-701(A), 13-707(A), while commitment under § 13-502 is not,
see Bomar, 199 Ariz. 472, ¶¶ 10-12. As we explained in Bomar, the governing
statute allows release from confinement “as soon as, but not before, [a]
person is determined to be free from mental illness and no longer poses a

1There are two exceptions to this provision, neither of which applies
here. Ariz. R. Crim. P. 7.2(c)(1)(A)(i)-(ii).

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 DOMINGUEZ v. HON. METCALF
Opinion of the Court

danger to society.” Id. ¶ 23; see also A.R.S. § 13-3994(B)(1)–(4). 2 Thus,
confinement could exceed any potential prison term. This distinction
reinforces our conclusion that commitment following a finding of guilty
except insane is distinct from a sentence of imprisonment.

¶9 We reject the state’s argument that any “term of commitment”
qualifies under Rule 7.2(c), irrespective of how it has been “semantically
label[]ed.” Adherence to the meaning of plain language is the cornerstone
of statutory and rule interpretation—thus, our analysis must start with the
language of the rule. Brearcliffe, ___ Ariz. ___, ¶ 22, 525 P.3d at 1091. That
language here is unambiguous. If the supreme court had intended any type
of pending commitment to require post-verdict custody, it would have said
so.3 Instead, it limited that requirement to when a defendant likely faces a
sentence of imprisonment.

2 Section13-3994 has been revised since Bomar was decided. The
main difference is that the current version states that a person who “no
longer needs ongoing treatment for a mental disease or defect and is not
dangerous” is placed on probation “for the remainder of the commitment
term.” § 13-3994(B)(2). The current version also states that, if the person no
longer needs treatment but is dangerous and was subject to sentencing
under A.R.S. §§ 13-704, 13-710, or 13-751(A), the person is transferred to the
department of corrections to serve “the remainder of the commitment
term.” § 13-3994(B)(4). The version analyzed in Bomar instead provided
only that a person would be released or would remain in custodial
treatment. See 1999 Ariz. Sess. Laws, ch. 110, § 1. These differences do not
affect our analysis.
3The state argued in superior court that the respondent judge could
revoke Dominguez’s release because he had pled guilty to a dangerous
offense and thus potentially could be sent to prison if, after a future hearing,
a court determined he “no longer need[ed] ongoing treatment for a mental
disease or defect” but was nonetheless “dangerous.” § 13-3994(B)(4). The
state does not raise this argument on review, and the respondent did not
conclude it was required to revoke Dominguez’s release based on the
possibility of future incarceration. It instead determined that Dominguez’s
confinement in a secure treatment facility constituted imprisonment.
Accordingly, we express no opinion whether a superior court could
reasonably determine a defendant would likely “receive a sentence of
imprisonment” because the defendant could be incarcerated pursuant to
§ 13-3994(B) at some future date.

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 DOMINGUEZ v. HON. METCALF
Opinion of the Court

¶10 The state also suggests that Bomar is not persuasive because it
did not address Rule 7.2(c), specifically “the objectives and purposes”
served by that rule. It argues that, because the rule is intended to ensure
public safety, courts must have the authority to take into custody a
defendant who is “factually guilty of the offense.” The state neglects to
explain, however, how its view of best practices for public safety would
permit us to disregard the governing rule’s plain language. And despite
the state’s contrary suggestion, nothing would prevent a superior court
from exercising its authority to retain a defendant in custody if appropriate.
See generally A.R.S. § 13-3961 (allowing court to hold defendant nonbondable
under certain circumstances). In addition, a defendant’s adjudication of
guilty except insane could warrant reexamination of the release conditions
under Rule 7.4(c).

¶11 Because Rule 7.2(c)(1)(A) does not require a superior court to
revoke the release of a defendant found guilty except insane, we accept
special action jurisdiction and grant relief.

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