Lisa Gilpin v. Hon. harris/marcos Martinez

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

LISA GILPIN,
Petitioner,

v.

HON. DANIELLE HARRIS, JUDGE OF THE SUPERIOR COURT OF THE STATE OF
ARIZONA, IN AND FOR THE COUNTY OF PINAL,
Respondent Judge,

MARCOS JERELL MARTINEZ,
Real Party in Interest.

No. CR-23-0252-PR
Filed August 7, 2024

Appeal from the Superior Court in Pinal County
The Honorable Danielle Harris, Judge
No. CR201800324
REMANDED

Order of the Court of Appeals, Division Two
No. 2 CA-SA 23-0067
Filed August 28, 2023

COUNSEL:

Colleen Clase (argued), Arizona Voice for Crime Victims, Phoenix,
Attorney for Lisa Gilpin

Kate Milewski, Pinal County Public Defender, Kevin D. Heade (argued),
Defender Attorney, Pinal County Public Defender’s Office, Florence,
Attorneys for Marcos Jerell Martinez

Randall Udelman, Arizona Crime Victim Rights Law Group, Scottsdale,
Attorneys for Amici Curiae National Crime Victim Law Institute, et al.
 GILPIN V. HON. HARRIS/MARTINEZ
Opinion of the Court

JUSTICE BEENE authored the Opinion of the Court, in which CHIEF
JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ and JUSTICES
BRUTINEL, BOLICK, MONTGOMERY, and KING joined.

JUSTICE BEENE, Opinion of the Court:

¶1 Legally insane individuals have been excused from criminal
responsibility under Arizona law since at least 1901. Renée Melançon,
Arizona’s Insane Response to Insanity, 40 Ariz. L. Rev. 287, 294 (1998). But
after a series of high-profile acquittals in the 1980s and 1990s, our legislature
reduced the scope of the insanity defense. See id. at 294–99. Now, Arizona
no longer has a traditional “not guilty by reason of insanity” defense.
Instead, criminal defendants may be adjudicated “guilty except insane”
(“GEI”). See A.R.S. § 13-502.

¶2 In State v. Heartfield, 196 Ariz. 407, 410 ¶ 10 (App. 2000), our
court of appeals held that defendants adjudged GEI are not responsible for
their actions and, thus, do not have to pay restitution to their victims. In
this Opinion, we examine the legislature’s changes to our state’s insanity
defense and conclude that the legislature has assigned criminal
responsibility to GEI defendants. In light of this legislative objective, we
overrule Heartfield and hold that restitution is available from GEI
defendants who cause or threaten to cause death or serious bodily injury.

BACKGROUND

¶3 Marcos Martinez killed his grandmother and subsequently
pleaded GEI to first degree murder. Pursuant to his plea agreement, he was
committed to the Arizona State Hospital and will remain under the
jurisdiction of the superior court for the rest of his life. But—unlike what
would have been the case with a guilty plea—Martinez’s GEI plea did not
include restitution for the victims of his crime.

¶4 Lisa Gilpin claims to be a victim of Martinez’s crime. She
sought roughly $18,300 in restitution from Martinez under Arizona’s
Victims’ Bill of Rights (the “VBR”). 1 But the superior court denied her

1 The relationship between the putative victim, Gilpin, and the decedent in

this case is unclear on the current record. Nor is it clear whether the amount

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Opinion of the Court

request. It explained that, under Heartfield, a judgment of GEI is not a
“conviction” for the purposes of restitution—and, therefore, restitution was
unavailable.

¶5 Gilpin sought special action review from the court of appeals,
but the court declined jurisdiction. We granted review because a crime
victim’s entitlement to restitution from a GEI defendant is a recurring issue
of statewide importance. We have jurisdiction pursuant to article 6, section
5(3) of the Arizona Constitution.

DISCUSSION

¶6 This Court reviews issues of statutory and constitutional
interpretation de novo. Cox v. Ponce, 251 Ariz. 302, 304 ¶ 7 (2021); Puente v.
Ariz. State Legislature, 254 Ariz. 265, 268 ¶ 6 (2022).

I.

¶7 In Arizona, “a victim of crime has a right . . . [t]o receive
prompt restitution from the person or persons convicted of the criminal
conduct that caused the victim’s loss or injury.” Ariz. Const. art. 2,
§ 2.1(A)(8); see also State v. Patel, 251 Ariz. 131, 135 ¶ 14 (2021) (explaining
that the VBR grants victims the right to be restored to their pre-crime
economic position). Thus, to determine whether a GEI defendant is
responsible for restitution, we must determine whether a defendant
adjudged GEI under § 13-502 has been “convicted of . . . criminal conduct.”
This, in turn, requires construing the word “convicted” as used in article 2,
section 2.1(A)(8), as well as interpreting § 13-502 in the context of Arizona’s
GEI framework.

A.

¶8 We focus first on the constitutional right conferred by section
2.1(A)(8) of the VBR. The constitution does not define “convicted,” so we
give the term its plain meaning. See Matthews v. Indus. Comm’n, 254 Ariz.
157, 164 ¶ 34 (2022). And we use context and dictionary definitions to help
identify this plain meaning. See In re Drummond, 543 P.3d 1022, 1025 ¶ 7
(Ariz. 2024). The meaning of “convicted” varies in context, see State v. Green, 174 Ariz. 586, 587 (1993), but it is ordinarily understood to mean a finding—

of restitution demanded by Gilpin is adequately substantiated. These
issues are not before us, however, and must be resolved by the superior
court.
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Opinion of the Court

or an accepted plea—of guilt, see In re Lazcano, 223 Ariz. 280, 282 ¶ 7 (2010);
see also State v. Superior Court, 138 Ariz. 4, 6 (App. 1983). This understanding
conforms with dictionary definitions. In the criminal context, “conviction”
means “finding someone guilty of a crime; the state of having been proved
guilty” and “[t]he judgment . . . that a person is guilty of a crime.”
Conviction, Black’s Law Dictionary (11th ed. 2019).

¶9 Here, nothing in the VBR suggests that anything other than
this ordinary meaning and definition should apply. We therefore conclude
that, in the context of the VBR, being convicted of criminal conduct is
synonymous with being found guilty of a crime. But this begs the question:
What does it mean to be found guilty of a crime?

¶10 As with “conviction,” dictionary definitions are instructive
when discerning the meaning of the word guilty. “Guilty,” in the criminal
context, means “[h]aving committed a crime; responsible for a crime.”
Guilty, Black’s Law Dictionary (11th ed. 2019) (emphasis added). Thus,
being found guilty of a crime is synonymous with being found responsible
for having committed a crime.

¶11 In this light, a simple syllogism reveals the plain meaning of
article 2, section 2.1(A)(8). “Convicted” means a finding of guilt, and
“guilty” means being held responsible. Therefore, being convicted of
criminal conduct means being held responsible for criminal conduct.
Accordingly, under the VBR, a crime victim has a right to receive restitution
from the person held responsible for the crime causing his or her loss.

B.

¶12 Having established that the meaning of the word convicted in
article 2, section 2.1(A)(8) is based on the concept of criminal responsibility,
we now turn to whether a GEI defendant is held criminally responsible
under § 13-502.

1.

¶13 As always, we start with the statutory text. Drummond, 543
P.3d at 1025 ¶ 5. But when the text is ambiguous—that is, “if more than one
reasonable interpretation exists”—this Court turns to secondary
interpretive techniques. Id. As relevant here, § 13-502(A) provides that:

A person may be found guilty except insane if at the time of
the commission of the criminal act the person was afflicted
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Opinion of the Court

with a mental disease or defect of such severity that the
person did not know the criminal act was wrong. A mental
disease or defect constituting legal insanity is an affirmative
defense.

The statute also informs us that a “guilty except insane verdict is not a
criminal conviction for sentencing enhancement purposes under § 13-703
or 13-704.” § 13-502(E).

¶14 Here, § 13-502 is ambiguous because it has more than one
reasonable meaning. On the one hand, § 13-502(A) refers to a person being
“found guilty”—which suggests a finding of criminal responsibility. See
Part I(A). And subsection (D) instructs the judge to calculate and
“suspend” a sentence, which suggests the “except insane” attached to the
guilty finding only affects sentencing. Indeed, subsection (E) informs us
that a GEI verdict is “not a criminal conviction for sentencing enhancement
purposes.” (Emphasis added.) This indicates that a GEI verdict is a criminal
conviction outside of sentencing enhancement, or else the last clause of
subsection (E) would be redundant. See Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 174 (2012) (“[E]very word and
provision is to be given effect . . . .”).

¶15 On the other hand, the words “except insane” follow the
words “found guilty,” suggesting that a legally insane defendant is
excluded from being held criminally responsible. See Exception,
Merriam-Webster, https://www.merriam-webster.com/dictionary/excep
tion (last visited Aug. 1, 2024) (defining “exception” as “the act of
excepting” and “exclusion”). Furthermore, subsection (A) classifies a
“mental disease or defect constituting legal insanity [a]s an affirmative
defense.” And an “affirmative defense” is defined as a defense “that
attempts to excuse the criminal actions of the accused.” A.R.S. § 13-103(B).
This suggests that, under § 13-502(A), mental diseases or defects may
negate criminal responsibility and culpability. See State v. Holle, 240 Ariz.
300, 304 ¶ 22 (2016). Unlike traditional affirmative defenses, however, GEI
verdicts do not result in an acquittal. See State v. Reese, 967 P.2d 514, 516
(Or. Ct. App. 1998) (“A guilty except for insanity finding is not an
acquittal—it is a guilty verdict.”).

¶16 Other statutes’ references to GEI verdicts also fail to clarify
the issue. Several statutes imply that convictions are distinguishable from
GEI verdicts—at least for some purposes. See, e.g., A.R.S. § 13-4033(A)(1)
(distinguishing between a “final judgment of conviction or verdict of guilty

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 GILPIN V. HON. HARRIS/MARTINEZ
Opinion of the Court

except insane”); A.R.S. § 13-4518(A)(2) (“ever been convicted of or found
guilty except insane”); A.R.S. § 14-2803(L)(2) (“‘Felonious and intentional’
means a conviction or a finding of guilty except insane . . . .”). But these
distinctions do not conclusively establish a given meaning, and other
statutory text implies that confinement in a secure mental health facility
flows from a conviction. See A.R.S. § 13-4401(14) (“‘Post-conviction release’
means . . . discharge from . . . a secure mental health facility.”). These
inconsistent distinctions between convictions and GEI verdicts do nothing
to clear up § 13-502’s facial ambiguity.

¶17 At bottom, § 13-502 can reasonably be read to either excuse a
defendant from criminal responsibility or to result in a finding of guilt.
Because the statute can be reasonably read in more than one way, it is
ambiguous. It is therefore appropriate to deploy secondary interpretive
techniques, including examining the statute’s history, effects, and
consequences.

2.

¶18 The textual evolution of § 13-502—i.e., its statutory history—
reveals a legislative objective to hold GEI defendants responsible for their
criminal conduct. This assignment of criminal responsibility is further
reinforced by the effects and consequences of a GEI verdict.

¶19 We begin with an analysis of how the GEI statute’s text has
been amended by the legislature over time. Arizona’s historical insanity
defense emphasized an insane defendant’s non-culpability for criminal
conduct. See § 13-502 (1984). It read, in relevant part:

A person is not responsible for criminal conduct by reason of
insanity if at the time of such conduct the person was
suffering from such a mental disease or defect as not to know
the nature and quality of the act, or if such person did know,
that such person did not know that what he was doing was
wrong.

§ 13-502(A) (1984) (emphasis added). This text is clear: A defendant who
successfully asserted an insanity defense under this version of § 13-502 was
not responsible for his or her criminal conduct.

¶20 Starting in 1993, however, the legislature began narrowing
the scope of § 13-502. First, the legislature repealed the “not

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 GILPIN V. HON. HARRIS/MARTINEZ
Opinion of the Court

responsible . . . by reason of insanity” verdict and replaced it with a GEI
verdict. 1993 Ariz. Sess. Laws ch. 256, §§ 2, 3 (1st Reg. Sess.). The legislature
simultaneously established the Psychiatric Security Review Board (“PSRB”)
to oversee GEI defendants charged with more serious crimes. See id. § 7. In
2007, the legislature instructed judges to “sentence”—instead of
“commit”—a GEI defendant “to a term of incarceration in the state
department of corrections” and “order the defendant to be placed under the
jurisdiction of the [PSRB] and committed to a state mental health facility.”
2007 Ariz. Sess. Laws ch. 138, § 1 (1st Reg. Sess.). The same year, the
legislature drastically curtailed GEI defendants’ eligibility to be released
before their sentences ended. See id. § 2. More recently, in 2021, the
legislature amended § 13-502 to (1) clarify that the sentence imposed by the
court is suspended while the GEI defendant is incarcerated in a secure
mental health facility and (2) keep the defendant under the jurisdiction of
the superior court for the duration of the suspended sentence. 2021 Ariz.
Sess. Laws ch. 390, § 4 (1st Reg. Sess.). 2

¶21 The legislature plainly demonstrated an objective to hold GEI
defendants responsible for their criminal conduct by amending the GEI
statute over time. Two changes are especially significant. First, and most
importantly, the legislature excised exculpatory language from the GEI
statute in 1993. Specifically, the legislature repealed the “not responsible”
verdict and replaced it with a GEI verdict. This change strongly suggests
the legislature intended to assign criminal responsibility to legally insane
defendants. And second, legislative changes in 2007 and 2021 plainly
indicate that GEI defendants are sentenced and not just committed. This is
significant because a sentence follows a finding of guilt. See Sentence,
Black’s Law Dictionary (11th ed. 2019) (defining “sentence” as “[t]he
judgment that a court formally pronounces after finding a criminal
defendant guilty”). In conjunction, these textual changes show that a GEI
verdict results in criminal responsibility comparable to a finding of guilt.

¶22 In addition to this statutory history, the effects and
consequences of a GEI verdict also suggest that the legislature intends for
GEI defendants to be legally responsible for their criminal conduct.

2 We note that, effective July 1, 2023, the legislature vested the superior
court with all powers and duties of the PSRB; the court now has “exclusive
supervisory jurisdiction” over anyone previously under PSRB supervision.
2021 Ariz. Sess. Laws ch. 390, § 42 (1st Reg. Sess.).
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Opinion of the Court

¶23 To understand the effects and consequences of a GEI verdict,
we must examine the interplay among three related statutes in our state’s
GEI framework. The first statute is § 13-502 itself, which instructs courts
how to proceed when a defendant is found GEI:

[T]he court shall determine the sentence the defendant could
have received pursuant to § 13-707 or § 13-751, subsection A
or the presumptive sentence the defendant could have
received pursuant to [Arizona’s felony sentencing statutes] if
the defendant had not been found insane, and the judge shall
suspend the sentence and shall order the defendant to be
placed and remain under the jurisdiction of the superior court
and committed to a secure state mental health facility . . . for
the length of that sentence.

§ 13-502(D). In other words, when a defendant is adjudged GEI, the court
must (1) determine the appropriate sentence for a legally sane defendant;
(2) impose and suspend that sentence; (3) order the defendant to remain
under the jurisdiction of the court for the length of the sentence; and (4)
commit the defendant to a secure facility for the length of the sentence. Id.;
see also A.R.S. § 13-3992(A).

¶24 The second relevant statute, § 13-3992, confirms the
procedure described in § 13-502(D): Anyone found GEI must “be
committed to a secure mental health facility for a period of treatment.” Id.
Also, as relevant to Martinez, when a GEI defendant’s actions caused, or
threatened to cause, death or serious physical injury:

[T]he court shall retain jurisdiction over the person [i.e., the
GEI defendant] for the entirety of the commitment term. The
court shall state the beginning date, length and ending date of
the commitment term and the court’s jurisdiction over the
person. The length of jurisdiction over the person is equal to
the sentence the person could have received pursuant to
§ 13-707 or § 13-751, subsection A or the presumptive sentence
the person could have received pursuant to [Arizona’s felony
sentencing statutes].

§ 13-3992(D). Put simply, if a GEI defendant causes, or threatens to cause,
death or serious injury, the court must impose a determinant sentence and
retain jurisdiction over the defendant for the sentence’s duration. See id.

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Opinion of the Court

¶25 The third statute at play, A.R.S. § 13-3994, provides a
mechanism to change the nature of a GEI defendant’s commitment term.
Modifying the nature of the term may only occur pursuant to a hearing,
after which the court may take the following actions:

1. If . . . the person still has a mental disease or defect and
is dangerous, the court shall order that the person remain
committed at the secure mental health facility.
2. If . . . the person no longer needs ongoing treatment for
a mental disease or defect and is not dangerous, the court
shall place the person on supervised probation for the
remainder of the commitment term . . . .
3. If . . . the person still has a mental disease or defect
or . . . the mental disease or defect is in stable remission but
the person is no longer dangerous, the court shall order the
person’s conditional release. The person shall remain under
the court’s jurisdiction.
4. If the person could have been sentenced pursuant to
§ 13-704, § 13-710 or § 13-751, subsection A and the court finds
that the person no longer needs ongoing treatment for a
mental disease or defect and the person is dangerous, the
court shall impose the sentence and order the person to be
transferred to the state department of corrections for the
remainder of the commitment term. All time spent under the
court’s jurisdiction and any time spent committed pursuant
to this section shall be credited against any sentence imposed.

§ 13-3994(B). In short, after being committed, GEI defendants whose
actions caused death, serious injury, or the threat of either may be eligible
for changes to their commitment, including incarceration, based on
whether they (1) need continuing treatment and (2) are “dangerous.” See
id. Depending on treatment needs and dangerousness, the reviewing court
may choose from the four dispositions listed above, including
incarceration—but none of the dispositions results in an unconditional
release. When GEI defendants cause or threaten death or serious injury,
they will remain under the court’s jurisdiction—and some level of
supervision—until their suspended sentence expires.

¶26 Like the statutory history of § 13-502, the effects and
consequences of §§ 13-502, -3992, and -3994 reveal a legislative intention to
hold legally insane defendants responsible for their criminal conduct. Once
a defendant is adjudged GEI, the court must immediately impose a

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Opinion of the Court

sentence. The court also must assume jurisdiction over the defendant,
remanding him or her to a secure state facility. And when GEI defendants’
actions cause death, serious injury, or the threat of either, they are never
eligible for early release from the jurisdiction of the superior court and will
never be eligible for release from supervision until their sentence ends—
barring extraordinary executive action. For Martinez, this means that he
will likely be under the court’s jurisdiction and some form of supervision
for his remaining life.

¶27 At bottom, § 13-502’s history, as well as the effects and
consequences of a GEI verdict, demonstrate a legislative purpose to hold
GEI defendants like Martinez responsible for their criminal conduct.
Accordingly, a person adjudged GEI is held criminally responsible for his
or her actions.

C.

¶28 For the preceding reasons, we conclude that Martinez has
been “convicted” within the meaning of article 2, section 2.1(A)(8) of the
Arizona Constitution. This section gives crime victims the right to receive
restitution from the person held criminally responsible for the crime
causing their economic loss. See Part I(A). Though the plain meaning of
§ 13-502 and its related statutes is not readily apparent, secondary
interpretive techniques conclusively establish that the legislature intended
to hold GEI defendants criminally responsible for actions causing death,
serious injury, or the threat of either. See Part I(B). This responsibility
differs in some ways from the responsibility of a legally sane defendant, but
it nevertheless bears the indicia of guilt and culpability. Accordingly, when
a GEI defendant has caused or threatened to cause death or serious bodily
harm, the defendant’s victim is entitled to restitution for any resulting
economic loss. 3

II.

¶29 Having determined that victims are entitled to restitution
from GEI defendants like Martinez, we turn to two additional issues. First,
we analyze Heartfield, the case the superior court relied on to deny Gilpin’s
restitution request. We then address the constitutional concerns initially

3 We do not address whether a GEI defendant whose actions did not cause

or threaten to cause death or serious bodily harm is responsible for
restitution.
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Opinion of the Court

advanced by Martinez in his supplemental brief and addressed at oral
argument.

A.

¶30 The superior court relied on Heartfield when ruling that a GEI
verdict is not a conviction and that restitution was unavailable. But the
analysis in Heartfield was flawed. This is because the Heartfield court
focused too narrowly on some textual changes to § 13-502, ignored others,
and supported its textual analysis with discarded public policy to reach its
conclusion.

¶31 In Heartfield, the court used State ex rel. Collins v. Superior
Court, 150 Ariz. 295 (1986), to establish that “before [§ 13-502] was
amended . . . ‘the long standing [sic] policy of this state has been that
persons who are insane are not responsible for criminal conduct and are
therefore not subject to punishment.’” Heartfield, 196 Ariz. at 410 ¶ 8
(quoting Collins, 150 Ariz. at 298). Bolstered by this pre-amendment policy,
the court concluded that a GEI defendant could not be held responsible for
his or her actions. Id. Finding that “there must be an element of
responsibility before a defendant may be ordered to pay restitution,” the
court held that restitution was unavailable from GEI defendants. Id. at 410
¶ 10.

¶32 We reject Heartfield’s flawed reasoning. After failing to
engage in a thorough textual analysis, Heartfield relied heavily on public
policy divined from a version of § 13-502 that materially and directly
conflicts with the amended version. Given this errant analysis, Heartfield is
overruled.

B.

¶33 Martinez insists that “[a]n interpretation of Arizona’s GEI
scheme that concludes the insane are convicted of a crime would render it
unconstitutional” because such an interpretation impermissibly diminishes
Arizona’s moral-incapacity defense. 4 We do not address this argument,

4 See, e.g., Clark v. Arizona, 548 U.S. 735, 770–71 (2006) (explaining that a
defendant must have some ability to introduce “mental-disease and
capacity evidence”); Kahler v. Kansas, 589 U.S. 271, 284–86 (2020) (explaining
that either a moral-incapacity or diminished-capacity defense satisfy the
constitutional requirement that states have an insanity defense that negates

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Opinion of the Court

however, because Martinez did not raise it at the court of appeals or in his
response to Gilpin’s petition for review. Because of this, interested parties
did not have an opportunity to brief the issue. We therefore leave this, and
any other, constitutional challenges for another day and decline to address
them at this time. See State v. Johnson, 247 Ariz. 166, 180 ¶ 13 (2019).

CONCLUSION

¶34 For the foregoing reasons, we hold that victim restitution is
available from defendants adjudged GEI when the defendants’ actions
caused or threatened death or serious injury. We remand to the superior
court to determine whether Gilpin is eligible for restitution, the amount of
restitution owed, whether Martinez is liable for restitution payments while
suffering from a mental disease or defect, and for further proceedings
consistent with this Opinion.

criminal liability); see also State v. Mott, 187 Ariz. 536, 544–55 (1997) (holding
that expert testimony of mental incapacity cannot be used to establish a
diminished-capacity defense by negating a crime’s mens rea).
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