State v. Peek

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-07-0412-PR
)
Respondent, ) Court of Appeals
) Division One
v. ) No. 1 CA-CR 07-0041 PRPC
)
) Maricopa County
GARY DOUGLAS PEEK, ) Superior Court
) No. CR2002-093788
)
Petitioner. ) O P I N I O N
_________________________________ )

Appeal from the Superior Court in Maricopa County
The Honorable Bethany G. Hicks, Judge

VACATED AND REMANDED
________________________________________________________________

Order of the Court of Appeals, Division One
Filed Nov. 2, 2007

ORDER VACATED
________________________________________________________________

ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By Diane Gunnels Rowley, Deputy County Attorney
James P. Beene, Deputy County Attorney
Attorneys for State of Arizona

CHEIFETZ, IANNITELLI, MARCOLINI, P.C. Phoenix
By James J. Belanger

And

LEWIS AND ROCA, L.L.P. Phoenix
By Scott M. Bennett
Attorneys for Gary Douglas Peek
________________________________________________________________
B E R C H, Vice Chief Justice

¶1 Gary Douglas Peek seeks review of a term of lifetime

probation imposed upon his conviction for an act of attempted

child molestation that occurred between 1994 and 1996. We

conclude that lifetime probation was not available when Peek

committed the crime and therefore vacate the trial court’s order

placing him on lifetime probation.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 In 2003, pursuant to a plea agreement, Petitioner Peek

pled guilty to two counts of attempted child molestation that

occurred between 1994 and 1996. In accordance with the plea

agreement, the court sentenced Peek to ten years’ incarceration

for the first count and imposed lifetime probation on the second

count.

¶3 In 2006, Peek sought relief from the imposition of

lifetime probation on count two by filing a petition for post-

conviction relief, which the trial court summarily denied.

After the court of appeals denied review, Peek petitioned this

Court for relief, arguing that lifetime probation was not

authorized by statute when he committed his crimes. We granted

review to address whether lifetime probation was available for

conviction of attempted child molestation committed between 1994

and 1996. We have jurisdiction pursuant to Article 6, Section

5(3) of the Arizona Constitution, Arizona Revised Statutes

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(“A.R.S.”) section 13-4239 (2001), and Arizona Rule of Criminal

Procedure 32.9.

II. DISCUSSION

¶4 Peek’s petition for post-conviction relief was

untimely; his claim should have been raised in his “of right”

petition for post-conviction relief. See Ariz. R. Crim. P.

32.1, 32.4. The State nonetheless joins Peek in asking that we

address the legal issue raised. Because the State has waived

preclusion and this case presents a recurring legal issue of

statewide importance on which trial courts have rendered

conflicting opinions, we will address the merits of the

petition. See id. 31.19(c)(3); cf. id. 32.2(c) (placing the

burden on the State to plead and prove preclusion and affording

the court discretion to raise preclusion sua sponte).

¶5 Peek argues that the court may not impose a sentence

greater than that allowed by law at the time the offense was

committed and that, when he committed his crime, the maximum

allowable term of probation was five years. He therefore

maintains that lifetime probation could not be ordered. See

Collins v. Youngblood, 497 U.S. 37, 43 (1990); State v.

Gonzalez, 216 Ariz. 11, 14-15, ¶¶ 13-15, 162 P.3d 650, 653-54

(App. 2007); cf. A.R.S. § 13-4037(A) (2001) (requiring

correction of an illegal sentence upon appeal by the defendant).

¶6 The sentencing provision in effect when Peek committed

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his crimes provided in relevant part as follows:

After conviction of a felony offense that is included
in chapter 14 of this title, if probation is
available, probation may continue for a term . . . up
to and including life and that the court believes is
appropriate for the ends of justice.

A.R.S. § 13-902(E) (Supp. 1993). We review statutory

interpretation issues de novo. State v. Armstrong, 218 Ariz.

451, 463, ¶ 54, 189 P.3d 378, 390 (2008).

A. Legislative Modifications to Lifetime Probation Statute

¶7 At all times relevant to this case, Arizona statutes

have defined various crimes against victims who are younger than

fifteen as “Dangerous Crimes Against Children” (“DCAC”). A.R.S.

§§ 13-604.01(K)(1) (1989), 13-604.01(J)(1) (Supp. 1993), 13-

604.01(K)(1) (Supp. 1997). A completed offense was designated

as a DCAC in the first degree and a preparatory offense was a

DCAC in the second degree. Id. §§ 13-604.01(K)(1) (1989), 13-

604.01(J)(1) (Supp. 1993), 13-604.01(K)(1) (Supp. 1997).

¶8 Before 1994, a person convicted of any second degree

DCAC could be placed on lifetime probation. Id. § 13-604.01(I)

(1989). Effective January 1, 1994, however, the legislature

amended various sections of the criminal code, including those

relating to lifetime probation. 1993 Ariz. Sess. Laws, ch. 255,

§ 8 (1st Reg. Sess.). The legislature eliminated subsection 13-

604.01(I), the provision allowing lifetime probation for second

degree DCAC offenses, and placed in the general probation

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statute § 13-902(E), quoted above, which authorized lifetime

probation for felony offenses “included in chapter 14.” 1993

Ariz. Sess. Laws, ch. 255, §§ 8, 17 (adding § 13-902(D), which

was renumbered as 13-902(E)).

¶9 Thus, before January 1, 1994, lifetime probation was

available for attempted (or second degree) DCAC offenses, but

not for sexual offenses against adults. A.R.S. § 13-604.01(I),

(K) (1989). After the change, lifetime probation was not

restricted to crimes against children, but also was not

available for all DCAC offenses. Id. § 13-902(E) (Supp. 1993).

For example, before the amendment, lifetime probation was

available for attempted second degree murder of victims younger

than fifteen, but unavailable for sexual abuse of victims

fifteen years old or older. Id. §§ 13-604.01(I), (K), -902

(1989). Following the amendment, the opposite was true because

the pivotal factor shifted from whether the victim was younger

than fifteen to whether the offense was “included in chapter

14.”

¶10 In 1997, the legislature amended § 13-902(E) to

explicitly apply to an attempt to commit an offense included in

chapter 14. 1997 Ariz. Sess. Laws, ch. 179, § 2 (1st Reg.

Sess.). Thus, lifetime probation was clearly available for an

attempted child molestation occurring before 1994 or after the

effective date of the 1997 amendment. This opinion addresses

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whether lifetime probation was also available in the intervening

period during which Peek committed the attempt offense at issue.

B. Construing “a felony offense that is included in chapter
14”

¶11 When Peek committed his crimes, § 13-902(E) allowed

lifetime probation for conviction of “a felony offense that is

included in chapter 14 of [Title 13].” A.R.S. § 13-902(E)

(Supp. 1993). We must construe penal statutes “according to the

fair import of their terms” to “effect their object.” Id. § 1-

211(C) (2002). Our goal is to discern the legislature’s intent,

the “best and most reliable index” of which is the statute’s

language. State v. Getz, 189 Ariz. 561, 563, 944 P.2d 503, 505

(1997) (quoting In re Pima County Juvenile Appeal No. 74802-2,

164 Ariz. 25, 33, 790 P.2d 723, 731 (1990)). When the language

of the statute is clear and unambiguous, we need look no further

to ascertain the legislative intent. Id.; State v. Christian,

205 Ariz. 64, 66, ¶ 6, 66 P.3d 1241, 1243 (2003). “[O]nly where

a statute is ambiguous or unclear is a court at liberty to

resort to the rules of statutory interpretation.” State v.

Sweet, 143 Ariz. 266, 269, 693 P.2d 921, 924 (1985).

¶12 Section 13-902(E) seems clear: When Peek committed

his crimes, it authorized lifetime probation only for offenses

“included in chapter 14.” Although chapter 14 included the

completed offense of child molestation, A.R.S. § 13-1410 (Supp.

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1993), it did not include attempted child molestation. Rather,

attempted offenses were included in chapter 10 of Title 13. Id.

§ 13-1001 (1989). The legislature could rationally have chosen

to treat preparatory offenses less harshly than completed

crimes, and § 13-902(E) appears to reflect precisely such a

choice. See Henry M. Hart, Jr. & Albert M. Sacks, The Legal

Process 1124-25 (William N. Eskridge, Jr. & Philip P. Frickey

eds., 1994) (suggesting that plain language be interpreted in

light of context and reasonable purpose of statute).

¶13 The State argues that attempts are part of the

completed offense or cannot be committed in isolation from the

substantive offense. That argument, however, does not address

whether the language of the statute in question encompassed

attempted offenses within § 13-902(E).

¶14 Moreover, we have previously held that sentencing

options for a substantive offense do not automatically apply to

related preparatory offenses. In State v. Herrera, 131 Ariz.

35, 36-37, 638 P.2d 702, 703-04 (1981), for example, we

concluded that a consecutive sentence could not be imposed for

an attempted second degree escape when the statute did not

authorize a consecutive sentence, even though a consecutive

sentence was required for the completed crime. We reasoned that

“even though it would logically follow” that the same penalty

might be imposed for an attempted crime as for the completed

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crime, we could not impose such a sentence when the sentencing

statute did not authorize it. Id. at 37, 638 P.2d at 704. The

statute in Herrera had undergone a change similar to that at

issue before us: A statute clearly requiring consecutive

sentences for both completed and attempted escape was amended by

deleting mention of the attempted crime. Id. at 36, 638 P.2d at

703. Based on this amendment, we concluded that “[w]e cannot

replace what the legislature has taken out.” Id. at 37, 638

P.2d at 704.

¶15 Similarly, in State v. Tellez, the court of appeals

held that a fine mandated for “a violation of any provision of

[§ 13-3408(A)]” could not be imposed for solicitation to commit

the substantive offense because solicitation was an offense

defined in chapter 10 of Title 13. 165 Ariz. 381, 382-83, 799

P.2d 1, 2-3 (App. 1990) (emphasis omitted); see also State v.

Wise, 164 Ariz. 574, 578, 795 P.2d 217, 221 (App. 1990)

(holding, for the same reason, that fine could not be imposed

for attempts to commit the substantive offense).

¶16 We find unpersuasive the court of appeals cases on

which the State relies. State v. Lammie, 164 Ariz. 377, 793

P.2d 134 (App. 1990), and State v. Cory, 156 Ariz. 27, 749 P.2d

936 (App. 1987), addressed whether sex offender registration

could be required for those convicted of attempted sexual

assault. Lammie, 164 Ariz. at 378, 793 P.2d at 135; Cory, 156

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Ariz. at 28, 749 P.2d at 937. The relevant statute required sex

offender registration for those convicted of “a violation of

chapter 14 [of Title 13].” Lammie, 164 Ariz. at 378, 793 P.2d

at 135; Cory, 156 Ariz. at 28, 749 P.2d at 937. The Cory court

concluded that because the defendant pled to a violation of

“§ 13-1001, as well as §§ 13-1406, 13-1401, 13-3821, 13-701, 13-

801, and 13-808,” the sex offender registration provision

applied. Cory, 156 Ariz. at 28, 749 P.2d at 937. It is

unclear, however, how the defendant in Cory violated any of the

listed sections other than § 13-1001; indeed the opinion

reflects conviction only of the attempted offense. Cory, 156

Ariz. at 28, 749 P.2d at 937. In concluding that registration

could be ordered, the court emphasized that the regulatory

purpose of the sex offender registry was served by including

those convicted of attempted sexual assault. Id. Here, in

contrast, we deal with a penal statute.

¶17 In Lammie, the court relied on Cory and similarly

affirmed the sex offender registration requirement. Lammie, 164

Ariz. at 379, 381, 793 P.2d at 136, 138. The court added that

contemporaneous legislative history supported its conclusion

that the legislature intended to include attempts within the

statute.1 Id. at 379, 793 P.2d at 136. Because Cory and Lammie

1
Section 13-3821 has since been amended and now clearly
applies to attempted offenses. 1995 Ariz. Sess. Laws, ch. 257,

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allowed an interpretation at odds with the plain language of the

statute, we do not find them persuasive.

¶18 Nor does State v. Cornish, 192 Ariz. 533, 968 P.2d 606

(App. 1998), support the State’s position. The attempt crime

considered in Cornish fit squarely within the plain language of

the statutory provision. The statute at issue in Cornish

provided an enhanced sentence for those “convicted of a class 4,

5 or 6 felony involving the intentional or knowing infliction of

serious physical injury.” Id. at 535, ¶ 5, 968 P.2d at 608

(citing A.R.S. § 13-604(F) (Supp. 1996)). The defendant was

convicted of “attempted aggravated assault, a class 4 dangerous

felony.” Id. at 534, ¶ 2, 968 P.2d at 607. The defendant

argued that the statute was ambiguous because other subsections

of the statute explicitly applied to both completed and

preparatory offenses, while § 13-604(F) did not explicitly refer

to attempts. Id. at 535, ¶ 6, 968 P.2d at 608. The court

concluded that the defendant’s conviction of attempted

aggravated assault fell within the statute because it was a

“class 4, 5 or 6 felony involving the intentional or knowing

infliction of serious physical injury.” Id. at 535, 537-38, ¶¶

9, 18, 968 P.2d at 608, 610-11. Cornish thus differs from the

instant case because this conviction is not covered by the plain

§ 3 (1st Reg. Sess.). No similar legislative history supports
such a result for § 13-902(E).

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text of the statute.

¶19 The State next argues that the 1994 amendment did

nothing to change the treatment of attempted crimes. We

disagree. The legislature deleted clear language subjecting

attempt offenses to lifetime probation and made lifetime

probation applicable only for those offenses falling within

chapter 14. Had the legislature intended to cover attempts, it

would have chosen to use different language, as it did for the

1997 amendment to § 13-902(E), which explicitly applied to

attempts to commit an offense included in chapter 14. 1997

Ariz. Sess. Laws, ch. 179, § 2. When the legislature intends to

include attempts, it knows how to do so.

III. CONCLUSION

¶20 The statutes in effect when Peek committed his crimes

did not authorize lifetime probation for attempted child

molestation. The lifetime probation term imposed on count two

was therefore illegal and accordingly is vacated. The order of

the court of appeals declining jurisdiction and the superior

court’s order dismissing the petition for post-conviction relief

are vacated, and this matter is remanded to the superior court

for resentencing in a manner consistent with this opinion.

_______________________________________
Rebecca White Berch, Vice Chief Justice

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CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

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