Joel Carson v. Hon. gentry/state

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

JOEL CARSON,
Petitioner,

v.

HON. JO LYNN GENTRY, JUDGE OF THE SUPERIOR COURT OF THE STATE OF
ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
Respondent/Judge,

STATE OF ARIZONA EX REL. RACHEL MITCHELL, MARICOPA COUNTY
ATTORNEY,
Real Party in Interest.

STATE OF ARIZONA,
Petitioner,

v.

HON. KERSTIN LEMAIRE, JUDGE OF THE SUPERIOR COURT OF THE STATE OF
ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
Respondent/Judge,

JOEL MCCLAIN CARSON,
Real Party in Interest.

No. CR-24-0191-PR
CR-24-0207-PR
(Consolidated)
Filed August 20, 2025

Appeal from the Superior Court in Maricopa County
The Honorable Jo Lynn Gentry, Judge
No. CR2022-006384-001
AFFIRMED

CARSON V. GENTRY
Opinion of the Court

Order of the Court of Appeals, Division One
Filed Apr. 22, 2024
VACATED

Opinion of the Court of Appeals, Division One
553 P.3d 197 (App. 2024)
VACATED

COUNSEL:

Sherri McGuire Lawson, Office of the Legal Defender, Kush Govani
(argued), John Champagne, Scott Boncoskey (argued), Deputy Legal
Defenders, Phoenix, Attorneys for Joel McClain Carson

Rachel H. Mitchell, Maricopa County Attorney, Quinton S. Gregory
(argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona
and Rachel H. Mitchell

Gary Kula, Maricopa County Public Defender, Katie Krejci, David Hintze,
Mikel Steinfeld, Grahame McNevin, Adna Zeljkovic, Deputy Public
Defenders, Phoenix, Attorneys for Amicus Curiae Maricopa County Public
Defender's Office

Kate Milewski, Pinal County Public Defender, Kevin D. Heade, Defender
Attorney, Florence, Attorneys for Amicus Curiae Pinal County Public
Defender's Office

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

* Justices William G. Montgomery and Maria Elena Cruz recused
themselves from this matter.
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Opinion of the Court

VICE CHIEF JUSTICE LOPEZ, Opinion of the Court:

¶1 We consider whether the State may refile criminal charges,
without prior judicial approval, against a defendant previously found not
competent and not restorable (“NCNR”). Here, the State refiled charges
against Joel McClain Carson after the trial court dismissed the charges upon
finding him NCNR. The State contended that it could refile charges
because new information suggested Carson’s competency status changed.
Carson moved to dismiss the charges, arguing that Johnson v. Hartsell, 254
Ariz. 585 (App. 2023), required the State to obtain judicial approval before
refiling charges. We explain today the reason for our prior decision order
authorizing the State to refile charges without judicial preapproval.

¶2 We hold that due process does not require the State to obtain
judicial approval before refiling charges against an NCNR defendant. In
doing so, we overrule paragraphs 22–27 of Johnson, and affirm Rider v.
Garcia, 233 Ariz. 314 (App. 2013), as the proper standard for refiling charges
when a defendant is determined NCNR. We further hold that, because
A.R.S. § 13-4517(A)(4) applies retroactively, the State may pursue a
dangerousness trial or it may attempt to rebut the presumption of
incompetency.

BACKGROUND

¶3 This case’s procedural complexity—three prosecutions,
multiple dismissals, and numerous appellate actions—is inextricably
intertwined with and reflects the legal complexity concerning the State’s
authority to refile charges against an NCNR defendant.

¶4 In May 2018, the State charged Carson with first degree
murder and several related felonies in CR2018-124276 (the “2018 Case”).
Carson, a diagnosed schizophrenic, moved for a referral to competency
proceedings under Arizona Rule of Criminal Procedure (“Rule”) 11. The
trial court granted the motion.

¶5 In July 2021, the court found Carson incompetent under
A.R.S. § 13-4510(C) and ordered involuntary treatment. After nearly a year
of treatment, in June 2022, the court found Carson still incompetent under
§ 13-4517(A) and determined there was “no substantial probability” of

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Opinion of the Court

restoration within 21 months of the July 2021 determination. Accordingly,
the court dismissed the 2018 Case without prejudice and ordered a civil
commitment evaluation at Valleywise Behavioral Health Center
(“Valleywise”).

¶6 Valleywise discharged Carson on July 15, 2022. Ten days
later, the State reindicted him for the same charges from the 2018 Case and
added a new felony charge for misconduct involving weapons in
CR2022-006384 (the “2022 Case”).

¶7 While other motions were pending in the 2022 Case, the court
of appeals issued Johnson, which held that prosecutors must obtain court
approval before refiling charges previously dismissed due to
incompetency. 254 Ariz. at 591–92 ¶¶ 22–27. In light of Johnson, the State
filed a motion requesting the court retroactively authorize the refiled
charges, asserting a “good faith belief” that Carson may be restorable given
his discharge and subsequent year-long treatment. Carson moved to
dismiss the charges in the 2022 Case, arguing that Johnson barred the
charges because the State showed no reasonable basis to believe he was now
competent.

¶8 In March 2023, the trial court held that Carson’s release from
Valleywise supported a reasonable belief that there was a change in
competency. The court dismissed the 2022 Case without prejudice and
granted leave to refile.

¶9 Following the court’s March 2023 orders, the State refiled the
charges from the 2022 Case in CR2023-000872 (the “2023 Case”). Carson
again moved to dismiss, arguing that any change in his competency was
insufficient to overcome the presumption of incompetency established in
June 2022. A different trial court judge granted Carson’s motion and
dismissed the 2023 Case without prejudice. The court reasoned that the
State lacked “a reasonable belief that [Carson] regained competency” before
refiling the charges in the 2023 Case.

¶10 The State sought special action review. State ex rel. Mitchell v.
LeMaire (“Carson I”), 255 Ariz. 544, 545 ¶ 1 (App. 2023). The court of appeals
“accepted jurisdiction, set aside the dismissal order, and remanded to the
court for a competency examination or other proceedings to determine
Carson’s current competency status.” Id. at 546 ¶ 11.

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CARSON V. GENTRY
Opinion of the Court

¶11 After the court of appeals issued its decision in Carson I,
Carson moved the trial court to reconsider the earlier order granting the
State refile authority. The court denied the motion, reasoning that the 2023
Case provided the State an opportunity to redetermine Carson’s
competency.

¶12 Carson sought special action review. The court of appeals
accepted jurisdiction and vacated the orders granting leave to refile and
denying reconsideration. Carson v. Gentry (“Gentry I”), No. 1 CA-SA
24-0067, at 2–3 (Ariz. App. Apr. 22, 2024) (order). The court stayed its ruling
for fourteen days to allow any party to seek relief under § 13-4517(A),
including civil commitment, protective appointment, or a dangerousness
trial. Id. at 3. The State petitioned the trial court to order a § 13-4517(A)(4)
dangerousness trial in the 2023 Case. The court denied the request.

¶13 The State filed another special action petition challenging the
denial in the 2023 Case. In response, Carson urged the court to dismiss the
2023 Case entirely because the Gentry I panel vacated the refile
authorization. A different court of appeals panel disagreed with Carson
and ordered supplemental briefing. State v. LeMaire (“LeMaire I”), No. 1
CA-SA 24-0089 at 2–3 (Ariz. App. May 22, 2024) (order).

¶14 While pursuing special action relief in the 2023 Case, the State
also filed two emergency requests to extend the Gentry I panel’s stay on the
decision order in the 2022 Case. The State explained that § 13-4517(A)(4)
“requires pending charges in order for the State to request a
dangerous[ness] trial” and that it understood the “decision order to vacate
those charges.” The court granted both requests and extended the stay until
further notice. Carson v. Gentry (“Gentry II”), No. 1 CA-SA 24-0067, at 1
(Ariz. App. May 3, 2024) (order); Carson v. Gentry (“Gentry III”), No. 1
CA-SA 24-0067, at 1 (Ariz. App. May 17, 2024) (order).

¶15 After the State filed its special action petition in the 2023 Case,
Carson moved to vacate the orders to stay the 2022 Case. He argued that
the premise for the State’s emergency request no longer existed, as the State
argued in its petition in the 2023 Case that § 13-4517(A)(4) did not require
pending charges. About a month later, the court of appeals vacated the stay
in the 2022 Case. Carson v. Gentry (“Gentry IV”), No. 1 CA-SA 24-0067, at 1
(Ariz. App. July 9, 2024) (order).

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CARSON V. GENTRY
Opinion of the Court

¶16 That same day, the court of appeals issued Carson v. Gentry
(“Carson II”), 258 Ariz. 89 (App. 2024). Applying Johnson, the court held
that the trial court erred in permitting the State to refile charges against
Carson because it failed to present “sufficient information to support a
reasonable belief that Carson may have regained competency.” Id.
at 93 ¶ 13. The Carson II court reasoned that Carson’s treatment compliance
and release from Valleywise were “not enough to overcome the
presumption of incompetency.” Id. ¶ 16. The court therefore vacated “the
trial court’s orders denying Carson’s motion to reconsider its ruling and
permitting the State to refile the charges.” Id. at 94 ¶ 17.

¶17 Carson then moved to dismiss the State’s pending special
action petition in the 2023 Case as moot. While this motion was pending,
the trial court dismissed the charges in the 2023 Case without prejudice.
The LeMaire I panel then dismissed the State’s pending special action
petition and the 2023 Case as moot. State v. LeMaire (“LeMaire II”), No. 1
CA-SA 24-0089, at 1 (Ariz. App. July 29, 2024) (order).

¶18 The State then petitioned this Court to review Carson II and
the dismissal of the 2023 Case. We granted review. At oral argument on
May 13, 2025, Carson’s counsel told the Court that Carson was currently
admitted to a behavioral health facility for civil commitment. The next day,
the Court issued an order directing the parties to “immediately inform the
Court of Petitioner’s imminent release from a secure facility.” Upon
learning from Carson’s counsel on May 22 that Carson was not in a secure
facility, the Court immediately issued a Decision Order, which allowed the
matter “to proceed in the superior court pending the Court’s opinion.” In
that order, we held that the court of appeals erred by vacating the trial
court’s ruling in the 2022 Case that had permitted the State to refile charges
against Carson. We also clarified two points. First, we overruled
paragraphs 22–27 of Johnson and affirmed Rider as “the correct operative
standard for the State to refile charges following a superior court’s
determination that a defendant is not competent to stand trial.” Second, we
affirmed the trial court’s denial of Carson’s motion for reconsideration in
the 2022 Case and remanded this matter to the trial court for the State to
attempt to either (1) rebut the presumption of incompetency and continue
the prosecution, or (2) file a petition for a dangerousness trial. We noted
that “[a]n opinion explaining our reasoning in this order will issue in due

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course.” This is that Opinion. We have jurisdiction under article 6,
section 5(3) of the Arizona Constitution.

DISCUSSION

¶19 This case’s procedural odyssey implicates the viability of the
jurisprudence concerning the State’s authority to refile charges against an
NCNR defendant and other issues, including (1) whether the State must
obtain judicial preapproval before refiling charges against an NCNR
defendant; (2) whether the Carson II court erred; and (3) whether the State
can petition for a dangerousness trial or invoke other procedural options.

I.

¶20 We begin by examining whether the State’s authority to refile
charges against an NCNR defendant is contingent upon the State obtaining
prior judicial approval to refile.

¶21 A defendant is “[i]ncompetent to stand trial” if, “as a result of
a mental illness, defect or disability [he or she is] unable to understand the
nature and object of the proceeding or to assist in the defendant’s defense.”
A.R.S. § 13-4501(3); see also Ariz. R. Crim. P. 11.1(a)(2). Arizona statutory
law and constitutional due process principles prohibit the State from
prosecuting an incompetent defendant. See A.R.S. § 13-4502(A) (“A person
shall not be tried, convicted, sentenced or punished for an offense if the
court determines that the person is incompetent to stand trial.”); Medina v.
California, 505 U.S. 437, 439 (1992) (“It is well established that [due process]
prohibits the criminal prosecution of a defendant who is not competent to
stand trial.”). Therefore, under § 13-4517(A)(3) and Rule 11.5(b)(3)(iii),
courts may dismiss charges without prejudice upon deeming a defendant
NCNR, consistent with due process concerns.

¶22 Here, the trial court dismissed Carson’s original charges in
the 2018 Case when it deemed him NCNR. But after Valleywise discharged
Carson post-dismissal, the State refiled those charges, initiating the 2022
Case. Carson, however, moved to dismiss those charges, citing Johnson,
which held that prosecutors must obtain court approval before refiling
charges previously dismissed due to incompetency. 254 Ariz.
at 591–92 ¶¶ 22–27. The State then sought retroactive court permission to
refile charges against Carson. The trial court dismissed the 2022 Case

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Opinion of the Court

without prejudice but granted the State permission to refile, which
culminated in the 2023 Case.

¶23 The dispute about the State’s refiling authority can be distilled
to whether Johnson properly requires the State to obtain prior judicial
approval before refiling charges. In Johnson, the court of appeals addressed
“what is necessary to start the criminal or probation revocation proceeding
after a court has dismissed it based on a finding of incompetency.” Id.
at 591 ¶ 21. It answered the question by imposing a new requirement
absent from any Arizona case, statute, or rule: “the State [must] provide
information to the court before refiling that supports a reasonable belief that
the defendant has regained competency.” Id. ¶ 25 (emphasis added). Only
if the court agrees, Johnson reasoned, may the State refile and parties may
then request a new competency exam. Id. The court justified this
requirement as a safeguard against a “revolving door” of prosecutions
based on past acts where the defendant remains presumptively
incompetent. Id. at 592 ¶ 26. But in its zeal to prevent a “revolving door,”
Johnson confused the path back into court with the standard for staying out;
it conflated the rules for refiling charges with those for rebutting the
incompetency presumption. And in doing so, Johnson required the
judiciary to assume the executive’s prerogative.

A.

¶24 First, Johnson relied solely on State v. Bradley, 102 Ariz. 482, 487
(1967), overruled in part on other grounds by State v. Harvill, 106 Ariz. 386, 391
(1970), for the judicial preapproval requirement. See Johnson, 254 Ariz.
at 591 ¶ 25 (citing Bradley). But Bradley does not support Johnson’s
preapproval requirement because it addressed the standard for overcoming
the presumption of incompetency, not the standard for refiling charges. See
Bradley, 102 Ariz. at 487 (providing that the State overcomes the
presumption of incompetency when restoration evidence “is accepted as
satisfactory by counsel for the accused, the prosecution, and by the court on
the basis of the record before it” (emphasis added)).

¶25 Johnson’s erroneous reliance on Bradley culminated in two
fundamentally incorrect principles: (1) the judicial preapproval
requirement, and (2) conflation of the refiling and incompetency
presumption rebuttal standards. See Johnson, 254 Ariz. at 591–92 ¶¶ 25–26
(“If the [s]tate cannot allege evidence to a court supporting its reasonable

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Opinion of the Court

belief that a person is now competent, it has not overcome the
incompetency presumption and may not arrest a person for the dismissed
charges.”). This analysis effectively requires the State to rebut the
presumption of incompetency before it can refile charges—a standard not
required by statute or jurisprudence.

¶26 The protections required to try an incompetent defendant
differ from the decision to charge one. Due process is squarely implicated if
an incompetent person is “tried, convicted, sentenced or punished for an
offense.” See § 13-4502(A) (emphasis added); Medina, 505 U.S. at 449. This
bar exists because competency is fundamental to a trial’s fairness. As the
U.S. Supreme Court has explained, a competent defendant can exercise
critical rights: the right to counsel, to confront witnesses, to testify or remain
silent, and to present a defense. See Riggins v. Nevada, 504 U.S. 127, 139–40
(1992) (Kennedy, J., concurring).

¶27 But initiating charges is distinguishable from trying a
defendant. Black’s Law Dictionary defines “try” as “[t]o examine judicially;
to examine and resolve (a dispute) by means of a trial.” Try, Black’s Law
Dictionary (12th ed. 2024). “Trial” is “[a] formal judicial examination of
evidence and determination of legal claims in an adversary proceeding.”
Trial, Black’s Law Dictionary (12th ed. 2024). Meanwhile, “charge” is
defined as “[a] formal accusation of an offense as a preliminary step to
prosecution.” Charge, Black’s Law Dictionary (12th ed. 2024) (emphasis
added). And “prosecution” is “[a] criminal proceeding in which an accused
person is tried.” Prosecution, Black’s Law Dictionary (12th ed. 2024).
Charging is an early procedural step in initiating a prosecution. But it does
not subject the accused to conviction or punishment. Without a trial, the
constitutional implications of incompetency are diminished.

¶28 To be sure, charging an incompetent defendant implicates
due process concerns that are “inherent in holding pending criminal
charges indefinitely over the head of one who will never have a chance to
prove his innocence.” See Jackson v. Indiana, 406 U.S. 715, 740 (1972). But
these concerns do not necessarily culminate in constitutional violations
upon refiling charges. Neither Arizona statutes, court rules, nor due
process requirements justify judicial intervention in a prosecutor’s charging

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discretion concerning persons previously adjudicated NCNR. 1 Instead,
separation of powers concerns weigh heavily against a court-created
preapproval rule.

B.

¶29 Johnson incorrectly empowers judges to commandeer the
charging decision—a core executive function. The U.S. Supreme Court
delineated the constitutional boundary between the executive and judicial
branches concerning charging decisions in United States v. Texas, 599 U.S.
670, 678–80 (2023). There, the Court explained that “the Executive
Branch—not the Judiciary—makes arrests and prosecutes offenses on
behalf of the United States,” and that law enforcement discretion is
“deep[ly]-rooted” in tradition. Id. at 679, 682 (citation omitted); see also
Town of Castle Rock v. Gonzales, 545 U.S. 748, 761 (2005) (noting the
“deep-rooted nature of law-enforcement discretion”). This reflects a
longstanding principle that charging decisions generally rest solely with
the executive branch. See Wayte v. United States, 470 U.S. 598, 607 (1985)
(“[T]he decision whether or not to prosecute . . . generally rests entirely in
[the prosecutor’s] discretion.”(quoting Bordenkircher v. Hayes, 434 U.S. 357,
364 (1978))); United States v. Armstrong, 517 U.S. 456, 464 (1996) (noting that
prosecutors “retain ‘broad discretion’ to enforce the Nation’s criminal
laws” (quoting Wayte, 470 U.S. at 607)).

¶30 Arizona law aligns with this principle. See Ariz. Const. art. 3
(describing the three governmental powers and declaring that no one
branch “shall exercise the powers properly belonging to either of the
others”). Prosecutors fall under the executive branch and their powers and
duties “shall be as prescribed by law.” Id. art. 5, § 9. While the legislature
defines crimes and punishments, this Court has long recognized that “[t]he

1 At oral argument, Carson argued that, as an arm of the court, the grand
jury’s probable cause determination for charges is analogous to Johnson’s
judicial preapproval requirement. We disagree. Grand juries ensure that
there is a sufficient basis for a criminal charge by “inquir[ing] into every
offense which may be tried within the county.” See A.R.S. § 21-407(A)
(emphasis added). But grand juries do not condition charges on a
defendant’s mental health, nor do they limit a prosecutor’s initial discretion
to present charges—unlike the judicial gatekeeping mechanism required
under Johnson, which bars prosecutors from initiating charges altogether.
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prosecutor makes the determination whether to file criminal charges and
which charges to file.” State v. Murphy, 113 Ariz. 416, 418 (1976); see also
State v. Prentiss, 163 Ariz. 81, 85 (1989) (acknowledging that “the executive
branch has the power to decide what criminal charges to file”). That
discretion does not dissipate once a court dismisses charges without
prejudice. To the contrary, courts lack authority to override or supervise
those decisions absent illegality or abuse of discretion. State v. Frey, 141
Ariz. 321, 324 (App. 1984) (“The courts have no power to interfere with the
discretion of the prosecutor unless he is acting illegally or in excess of his
powers.” (quoting Murphy, 113 Ariz. at 418)); see also J.V. v. Blair, 256 Ariz.
247, 250 ¶ 13 (App. 2023) (“[T]he plain language of Arizona’s constitution,
statutes, and rules reveals the executive branch has sole discretion whether
to prosecute . . . .” (emphasis added)).

¶31 Prosecutorial discretion includes deciding when to file
charges and whether to refile them after dismissal. “A prosecutor ‘is
properly vested with both the power to charge . . . and the discretion to
proceed to trial once a criminal action has been filed.’” Villalpando v. Reagan, 211 Ariz. 305, 311 ¶ 20 (App. 2005) (alteration in original) (quoting State v.
Ramsey, 171 Ariz. 409, 413 (App. 1992)); see also J.V., 256 Ariz. at 250 ¶ 13
(“The executive branch has broad discretion to decide whether to charge a
defendant with a crime and, unless restricted by the legislature, whether
and how to proceed.”). And judicial oversight of prosecutorial discretion
generally constitutes “inappropriate interference . . . with the broad
discretion entrusted to the executive branch.” Villalpando, 211 Ariz.
at 311 ¶ 20.

¶32 In short, Johnson’s preapproval rule crosses a constitutional
line: it inserts the judiciary into a core executive function—the decision
whether to refile criminal charges. Johnson’s rule impermissibly collapses
the constitutional separation between those who charge and those who
judge.

C.

¶33 We overrule the Johnson preapproval requirement and clarify
that the Rider standard is the operative one for refiling charges against an
NCNR defendant. Under Rider, the State may refile charges based on a
reasonable belief that the defendant’s competency may have been restored.
See 233 Ariz. at 317 ¶ 11. This threshold is intentionally lower than the

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presumption rebuttal standard. It permits the State to restart proceedings
without first rebutting the presumption of incompetency, which remains in
place until new competency proceedings are held.

¶34 The liberty interests at stake in incompetency proceedings
trigger both substantive and procedural due process protections under the
U.S. and Arizona Constitutions. See U.S. Const. amend. XIV, § 1; Ariz.
Const. art. 2, § 4. As mentioned, the U.S. Constitution prohibits prosecuting
a defendant who lacks competence to stand trial. Medina, 505 U.S. at 439.
Arizona law recognizes the same prohibition. See § 13-4502(A). This rule
is grounded in due process and is “fundamental to an adversary system of
justice” because the law presumes mentally incompetent people cannot
defend themselves. Drope v. Missouri, 420 U.S. 162, 171–72 (1975).

1.

¶35 Rider complies with substantive due process. Substantive due
process requires that any detention bear a “reasonable relation to the
purpose for which the individual is committed.” Jackson, 406 U.S. at 738. In
this context, the State cannot repeatedly refile charges merely to incarcerate
someone who remains incapable of restoration to competency. See Rider,
233 Ariz. at 317 ¶ 10.

¶36 The Rider standard reflects this constitutional balance. Under
that standard, the State cannot refile charges against an NCNR defendant
without reasonable grounds that the defendant may have regained
competence—thereby addressing Johnson’s “revolving door” prosecution
concern. See Johnson, 254 Ariz. at 592 ¶ 26. But Rider stops short of
conditioning executive prosecutorial discretion on judicial preapproval.

¶37 By contrast, Johnson repackaged due process concerns already
handled by Rule 11 procedures. Due process safeguards do not require a
court to greenlight recharging—they only require that no one be prosecuted
while incompetent, and that no one be detained without reason. See Jackson,
406 U.S. at 738. Rider meets both ends. Johnson overshoots them.

2.

¶38 Rider also comports with procedural due process. A failure to
“observe procedures adequate to protect a defendant’s right not to be tried

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or convicted while incompetent” violates due process. Drope, 420 U.S.
at 172. Those procedures must not “offend[] some principle of justice so
rooted in the traditions and conscience of our people as to be ranked as
fundamental.” Medina, 505 U.S. at 445 (quoting Patterson v. New York, 432
U.S. 197, 202 (1977)).

¶39 Carson argues that this Court should apply the U.S. Supreme
Court’s Medina analysis. In Medina, the Court evaluated a state competency
procedure under the Due Process Clause. Id. at 442. The case centered on
whether California’s rule that placed the burden of proving incompetence
on the defendant violated fundamental fairness. See id. at 440–42. The
Court upheld the procedure, concluding it satisfied due process because it
did not offend deeply-rooted principles of justice. See id. at 453. To reach
that decision, the Court considered (1) the “historical treatment” of the
procedure at common law and in “[n]ineteenth century” decisions,
(2) “[c]ontemporary practice,” and (3) whether the procedure “transgresses
any recognized principle of ‘fundamental fairness’ in operation.” See id.
at 446–48 (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)). Carson
urges us to follow this framework.

¶40 As for the “tradition” factor, Carson did not cite any case to
support a historical rule requiring judicial permission to refile charges
dismissed for incompetency. Instead, he relies on cases involving
protections for convicted defendants, not the standard for refiling charges
after dismissal. See Spann v. State, 47 Ga. 549, 550–51 (1873) (post-conviction
sanity inquiry to stay execution); State v. Dreher, 38 S.W. 567, 567–68 (Mo.
1897) (post-conviction commitment after insanity finding); Darnell v. State, 5 S.W. 522, 522–23 (Tex. App. 1887) (insanity finding after conviction and
before final judgment); Laughlin v. Commonwealth, 37 S.W. 590, 590–91 (Ky.
App. 1896) (discussing insanity inquiry before sentencing); State v. Pritchett, 11 S.E. 357, 359 (N.C. 1890) (rejecting a rule requiring certification of
competency from asylum authorities before prosecution could resume).

¶41 The “contemporary practice” consideration offers Carson no
relief. First, Medina made clear that contemporary state practice is “of
limited relevance to the due process inquiry.” See 505 U.S. at 447. In any
event, Carson concedes that contemporary state practice for “how
prosecutions can recommence after an NCNR finding” varies.

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¶42 Finally, the Medina court also briefly considered whether the
rule at issue transgressed “fundamental fairness.” Id. at 448 (quoting
Dowling, 493 U.S. at 352). Carson contends that a Rider-based system is
fundamentally unfair because it gives prosecutors unfettered discretion to
refile charges, risking repeated charging and commitment of incompetent
defendants. We disagree.

¶43 Under Rider, existing procedural safeguards deter unjustified
prosecution of incompetent defendants. First, the State does not have
unfettered discretion to refile charges against an NCNR defendant. See
Rider, 233 Ariz. at 317 ¶ 11. Indeed, the State must have reasonable grounds
that the defendant may have regained competency before refiling charges.
Id. The State’s compliance with Rider is subject to subsequent judicial
review. See id. This requirement exists because, post-charge, the State must
rebut the presumption of incompetency, a mandate rooted in defendants’
due process rights. See Adams v. Griffin, 256 Ariz. 461, 467 ¶ 19 (App. 2023).

¶44 Second, Arizona law expressly allows any party—or the court
on its own motion—to request a competency examination any time (even
immediately) after the State files charges. See A.R.S. § 13-4503(A). That
motion triggers judicial review of the defendant’s present mental state and
enables the court to dismiss the charges if the defendant remains
incompetent. See id.; see also § 13-4517(A)(3).

¶45 Third, several institutional standards and norms
disincentivize prosecutorial abuse under Rider. For example, prosecutors
who repeatedly charge an NCNR defendant without legal justification risk
case dismissal with prejudice and potential bar disciplinary proceedings.
See Ariz. R. Sup. Ct. 42, Ethical Rule (“ER”) 8.4(d) (prohibiting “conduct that
is prejudicial to the administration of justice”); ER 3.1 (“A lawyer shall not
bring or defend a proceeding, or assert or controvert an issue therein, unless
there is a good faith basis in law and fact for doing so that is not frivolous.”);
see also In re Sponsel, No. SB-24-0007-AP, 2025 WL 1477523,
at *14–15 ¶¶ 90–91 (Ariz. May 22, 2025) (discussing the Maricopa County
Attorney’s Office’s policy, which requires a “reasonable likelihood of
conviction” to charge a defendant); see also Pool v. Superior Ct., 139 Ariz. 98,
103 (1984) (“It is the prosecutor’s duty to refrain from improper methods
calculated to produce a wrongful conviction just as it is his duty to use all
proper methods to bring about a just conviction.”). Defendants also may
seek recourse through state or federal civil avenues. See, e.g., Lacey v.

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Maricopa County, 693 F.3d 896, 919 (9th Cir. 2012) (setting forth elements of
a 42 U.S.C. § 1983 malicious prosecution claim); see also Overson v. Lynch, 83
Ariz. 158, 161 (1957) (explaining the elements of the state tort of malicious
prosecution). Moreover, as elected officials, county attorneys and the
attorney general remain accountable to voters for unethical prosecutions.
Carson’s arguments fail under Medina.

¶46 In sum, we reject Johnson’s judicial preapproval requirement
for refiling charges against NCNR defendants. Instead, we adopt the Rider
standard because it preserves prosecutorial discretion while safeguarding
the due process rights of incompetent defendants.

II.

¶47 We next consider the Carson II decision. Relying on Johnson,
the court of appeals in Carson II vacated the trial court’s order authorizing
the State to refile charges. 258 Ariz. at 94 ¶ 17. The court reasoned that the
State’s evidence (Carson’s compliance with treatment and discharge from
Valleywise) did not support a reasonable belief that Carson may have
regained competency. Id. at 93 ¶¶ 13, 16. Therefore, the Carson II court
rejected the State’s attempt to refile charges. Id. at 91 ¶ 2, 93 ¶ 17. The
Carson II court erred for several reasons.

A.

¶48 First, Carson II erred by accepting Johnson’s premise that due
process requires judicial approval before the State may refile charges
following a finding of incompetency. See id. at 92–93 ¶ 12. But as explained
in paragraph 33, we reject Johnson’s preapproval requirement. Rather than
revisiting the validity of Johnson, the Carson II panel accepted it as
controlling and considered whether the State’s post-discharge evidence
was sufficient to rebut the presumption of incompetency. See id. at 93 ¶ 13.

¶49 Second, the Carson II court erred by adopting Johnson’s
corruption of the Rider standard which, as explained in paragraph 25,
conflated the standards for refiling and rebutting the presumption of
incompetency. See id. ¶ 16 (“Carson’s compliance with a treatment order
and his release from a civil commitment evaluation facility are not enough to
overcome the presumption of incompetency . . . .” (emphasis added)). Under
Rider, the State need not rebut the presumption to refile—it need only

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present a reasonable belief that the defendant “may have regained
competency.” See Rider, 233 Ariz. at 317 ¶ 11 (emphasis added).

¶50 The presumption protects incompetent defendants from
prosecution. See State v. Lewis, 236 Ariz. 336, 340–41 ¶¶ 10, 14 (App. 2014).
But it does not bar the State from refiling charges based on a reasonable
belief that new information suggests a defendant’s competency may have
been restored. Carson II erred by holding that the State’s
showing—Carson’s discharge from inpatient care and treatment
compliance—was insufficient because it failed to rebut the presumption.
That standard is qualitatively different from and exceeds Rider’s
requirements.

¶51 Third, Carson II erred by relying on Oligschlaeger v.
Mulleneaux, an unpublished case, to rebut the self-evident proposition that
discharge from treatment may signal improved functioning, medication
compliance, or diminished danger—all indicators that a defendant may
have regained competency. See 258 Ariz. at 93 ¶ 14 (citing Oligschlaeger, 1
CA-SA 19-0083, 2019 WL 2185161, at *4 ¶ 17 (Ariz. App. May 21, 2019)
(mem. decision)); see also Rider, 233 Ariz. at 317 ¶ 11 (finding that a state
hospital’s plan to discharge the defendant for outpatient care, among other
factors, suggested that the defendant may have regained competency).
Oligschlaeger cited no authority for the proposition that discharge from
treatment of a person recently charged with a violent offense and deemed
NCNR does not support a “reasonable belief” that the person’s competency
may have been restored. See 2019 WL 2185161, at *4 ¶¶ 16–18. This is an
extraordinary proposition particularly where, as here, Carson was released
despite the charges for a violent offense that, if proven, demonstrate a grave
risk to the community.

¶52 Carson, citing Rider, acknowledges that discharge may serve
as evidence of restoration. He merely claims that his case differs factually.
But Rider sets a flexible, low threshold—not a rigid, fact-matching
test—because competency is fluid and person specific. The State met its
burden by presenting evidence after recharging Carson that reasonably
suggested his competency may have been restored. That is all Rider and
due process require.

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Opinion of the Court

B.

¶53 We vacate Carson II, overrule paragraphs 22–27 of Johnson,
and affirm Rider as the controlling standard. When the State seeks to refile
charges following an NCNR finding, it need not obtain judicial
preapproval. Rather, the State must possess a reasonable belief that the
defendant’s competency status may have changed based on post-dismissal
events. See Rider, 233 Ariz. at 317 ¶ 11. Once the State has refiled the
charges, it should inform the court and defense of the prior NCNR finding
and explain its basis for believing the defendant’s condition may have
changed. The defendant may challenge whether the State met the Rider
threshold. If the court finds that the State satisfied the Rider standard, the
State has two procedural options: it may attempt to rebut the presumption
of incompetency and proceed with prosecution, or it may pursue a
dangerousness determination under § 13-4517(A)(4) without first
attempting rebuttal. The Rider standard governs the threshold for refiling,
not the State’s ultimate position on current competency. So long as the
presumption of incompetency remains unrebutted and charges are
pending, the court may proceed with a dangerousness trial. Under
§ 13-4503(A) and Rule 11.6(a)(4), any party or the court may request a
competency examination.

III.

¶54 Our disposition returns the parties to the 2022 Case. We now
address the reasons underlying our remand to the trial court permitting the
State to petition for a dangerousness trial under § 13-4517(A)(4). See
supra ¶ 18.

A.

¶55 We conclude that a court must have an active criminal case
pending to trigger the court’s authority to grant a dangerousness trial under
§ 13-4517(A)(4).

¶56 Statutory interpretation begins with the text. State v. Serrato,
568 P.3d 756, 759 ¶ 9 (Ariz. 2025). If a statute’s text is clear and
unambiguous, it controls unless it results in an absurdity or a constitutional
violation. 4QTKIDZ, LLC v. HNT Holdings, LLC, 253 Ariz. 382, 385 ¶ 5
(2022). Section 13-4517(A) outlines four procedural paths that may follow

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an NCNR determination. One of those options, § 13-4517(A)(4), applies if
“the defendant is charged with a serious offense as defined in [A.R.S.]
§ 13-706” and allows a court to “order a trial to determine if the defendant
is dangerous and should be involuntarily committed pursuant to [A.R.S.]
§ 13-4521.”

¶57 The State notes that § 13-4517(A)(4) does not expressly require
a pending prosecution or active case. But the State concedes that
§ 13-4517(A)(4)’s use of the present tense—“is charged with a serious
offense”—suggests that the legislature intended a dangerousness trial to be
tethered to an active prosecution. Arizona law presumes that statutes use
verb tenses deliberately. A.R.S. § 1-214(A) (“Words in the present tense
include the future as well as the present.”). Thus, when a court dismisses
charges, a defendant no longer “is charged” within the meaning of
§ 13-4517(A)(4), and the court lacks authority to order a dangerousness trial
under that provision.

¶58 We agree with Carson that this reading aligns with the
broader statutory framework. Dangerousness trials are not free-floating
proceedings; they are embedded within the criminal case process. Related
provisions confirm this interpretation. For example, § 13-4521(A) directs
courts to consider dismissal under § 13-4517(A)(3) if no probable cause
supports the charges. And § 13-4521(F) mandates dismissal even after a
dangerousness finding. These provisions assume an active case and would
make little sense if the court could proceed without one. See Nicaise v.
Sundaram, 245 Ariz. 566, 568 ¶ 11 (2019) (“We interpret statutory language
in view of the entire text, considering the context and related statutes on the
same subject.”).

¶59 The State argues that § 13-4517(C) and Rule 11.5(b)(4), which
allow courts to “retain jurisdiction over the defendant” until a court
arranges treatment or guardianship, indicate authority to proceed even
after dismissal. But those provisions preserve jurisdiction over the person,
not over the prosecution. Retaining jurisdiction to monitor treatment and
guardianship does not authorize initiating a new phase of litigation once a
court dismisses the underlying charges.

¶60 Due process buttresses this interpretation. Interpreting
§ 13-4517(A)(4) to permit dangerousness trials without pending charges
would facilitate indefinite detention, which would raise serious

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constitutional concerns. See Jackson, 406 U.S. at 738; see also Rider, 233 Ariz.
at 317 ¶ 10 (“[T]he state may not continually refile charges for the purpose
of holding a defendant based only on his chronic incompetence to stand
trial.”). We interpret statutory language to avoid constitutional conflict.
Greyhound Parks of Ariz., Inc. v. Waitman, 105 Ariz. 374, 377 (1970) (noting
that “a construction should be adopted which avoids constitutional
doubts”); see Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 247–51 (2012).

¶61 Accordingly, if the State elects to pursue a dangerousness trial
under § 13-4517(A)(4), it must do so while charges remain pending. Once
the charges are dismissed, a dangerousness trial is no longer an option.

B.

¶62 The State’s ability to proceed under § 13-4517(A)(4) also
depends on whether it can rely on the June 2022 NCNR finding from the
2018 Case in the 2022 Case. We hold that the State may rely on the 2022
NCNR finding to support a petition for a dangerousness trial provided the
petition relates to the same charges as the 2018 Case.

¶63 This issue arises because § 13-4517(A)(4) allows a
dangerousness petition only if the court “finds” that a defendant is
“incompetent to stand trial” and not restorable. “Incompetent to stand trial
means that as a result of a mental illness, defect or disability a defendant is
unable to understand the nature and object of the proceeding or to assist in
the defendant’s defense.” § 13-4501(3) (emphasis added); see also Ariz. R.
Crim. P. 11.1(2) (defining “incompetence” similarly).

¶64 Here, only one court has deemed Carson NCNR: the trial
court in the 2018 Case, which made that finding in June 2022. No court has
issued a subsequent NCNR ruling. Carson argues that the present-tense
term “finds” in § 13-4517(A) requires a fresh NCNR determination in every
case. But that argument overlooks the presumption of continued
incompetency. See Lewis, 236 Ariz. at 341 ¶ 10 (noting that the “initial
determination of incompetence raises a rebuttable presumption of
continued incompetence”). We have recognized that presumption since
1967. See Bradley, 102 Ariz. at 487; State v. Blazak, 110 Ariz. 202, 204 (1973)
(“The prior adjudication of mental incompetency gives rise to a rebuttable
presumption of continued incompetency.” (quoting Bradley, 102 Ariz.

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at 487)); see State v. Hehman, 110 Ariz. 459, 460 (1974). Thus, the
presumption of incompetence remains in effect until affirmatively rebutted.

¶65 Carson’s 2022 NCNR determination remains unrebutted.
Carson argues that the State refiled the charges because the trial court found
that post-dismissal events suggested regained competency. He contends
that if that ruling stands, the presumption has been rebutted and the case
must proceed to trial—not a dangerousness proceeding. We disagree.

¶66 First, that argument is now irrelevant because we overrule
paragraphs 22–27 of Johnson, nullifying Johnson’s refile procedure. See
supra ¶¶ 2, 18, 33, 53. Moreover, Carson conflates the standard for refiling
under Rider with rebutting the incompetency presumption. Again, the State
need only rebut the presumption after refiling the charges to continue the
prosecution, not as a prerequisite to refile. See supra ¶ 52.

¶67 In addition to the presumption of incompetency,
§ 13-4501(3)’s language supports the conclusion that the State may rely on
the 2022 NCNR finding. See Serrato, 568 P.3d at 761 ¶ 19 (explaining that
courts read statutes in context by considering the broader relevant statutory
scheme). Section 13-4501(3)’s plain language suggests that an NCNR
determination is charge-specific. Indeed, § 13-4501(3) defines
incompetency with reference to “the proceeding” and “the defendant’s
defense”—both of which are tied to particular charges. (Emphasis added.)
See also Rule 11.1(a)(2) (defining “incompetence” as when a defendant is
unable “to assist in his or her defense because of a mental illness, defect, or
disability” (emphasis added)). Consequently, once a court deems a
defendant NCNR for a specific charge, the State cannot refile on that charge
unless it satisfies the Rider standard. But the presumption does not extend
to new charges arising from new offenses.

¶68 Here, the 2022 charges arise from the same underlying
incident as the 2018 Case, but they include one additional offense:
misconduct involving weapons. Because we adopt a charge-specific
approach, the State may rely on the 2022 NCNR ruling to support a
dangerousness petition tied to the same conduct. However, if the State
elects to include the newly added weapons charge in the petition, it must
first obtain a Rule 11 determination as to that offense.

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C.

¶69 In July 2021, the trial court found Carson incompetent to
stand trial in the 2018 Case. In June 2022, the court found that there was no
substantial probability that he would regain competency within twenty-one
months. The issue is whether—more than three years later—the State may
rely on that 2022 NCNR determination to support a future dangerousness
petition under § 13-4517(A)(4). We conclude that it may.

¶70 Section 13-4517(A) provides that if a court finds a defendant
incompetent to stand trial and further concludes that there is “no
substantial probability that the defendant will regain competency within
twenty-one months after the date of the original finding of incompetency,” the
court must proceed to one of four listed dispositions, including a
dangerousness trial. (Emphasis added.) Both parties agree that the
twenty-one month period only limits restoration efforts. That timeline
triggers, rather than ends, the need for one of the four options under
§ 13-4517(A)(1)–(4). Nothing in § 13-4517(A) suggests that a dangerousness
trial must occur within the twenty-one month timeframe.

¶71 Interpreting § 13-4517(A) as imposing a strict cutoff for all
action—rather than just restoration—would fracture the statute’s internal
logic. That interpretation would, for example, bar a court from dismissing
a case after the twenty-one month deadline, even though dismissal is one
of the authorized options. See § 13-4517(A)(3). And “[o]ne of the more
important [statutory construction] rules is that effect shall, if possible, be
given to every part of a statute.” Town of Florence v. Webb, 40 Ariz. 60, 64
(1932); see also Scalia & Garner, supra ¶ 60, at 167 (noting that a statute
should be read “to consider the entire text, in view of its structure and of
the physical and logical relation of its many parts”). The more reasonable
reading is that § 13-4517(A) requires the court to act—not to act within
twenty-one months. The time expires on restoration, not on disposition.

¶72 The court of appeals adopted this interpretation in Nowell v.
Rees, 219 Ariz. 399 (App. 2008). There, the court found the defendant
incompetent to stand trial but continued to order restoration treatment over
several years based on conflicting expert reports. Id. at 401–02 ¶¶ 2–5.
Nowell filed a special action, arguing that Arizona law limits restoration
efforts to the twenty-one months after the court’s first incompetency
finding. Id. at 404 ¶ 12. The court agreed, holding that once a court finds

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no substantial probability of restoration within the twenty-one month
period, it must cease restoration efforts and select one of the statutory
outcomes. Id. at 405 ¶ 16, 407 ¶ 27.

¶73 Although Nowell did not address dangerousness
trials—because the legislature had not yet enacted subsection (A)(4)—its
reasoning applies here. The court emphasized that the statute creates a
linear structure: incompetency, attempted restoration, and then disposition.
See id. at 407 ¶ 25. It noted—but did not resolve—the procedural ambiguity
that arises when charges are refiled without a renewed Rule 11 finding. See
id. We resolve that ambiguity today. The twenty-one month period’s
expiration forecloses additional restoration efforts, not the court’s ability to
take further action.

D.

¶74 We now address § 13-4517(A)(4)’s retroactivity. The trial
court deemed Carson NCNR in June 2022—well before the statute’s
January 1, 2024, operative date. We must decide whether the State may file
a dangerousness petition based on an NCNR determination that predates
the statute’s effective date. We hold that the statute may be applied
retroactively.

¶75 Arizona courts presume that statutes have a prospective, not
retroactive effect. Krol v. Indus. Comm’n of Ariz., 565 P.3d 1013, 1019 ¶ 22
(Ariz. 2025). Ordinarily, “[n]o statute is retroactive unless expressly
declared therein.” A.R.S. § 1-244. But “the prohibition on retroactive
application of statutes is not absolute.” In re Shane B., 198 Ariz. 85, 87 ¶ 8
(2000). In Arizona, “[e]nactments that are procedural only, and do not alter
or affect earlier established substantive rights may be applied retroactively”
because “litigants have no vested right in a given mode of procedure.”
Aranda v. Indus. Comm’n of Ariz., 198 Ariz. 467, 470 ¶ 11 (2000), as corrected
on denial of reconsideration (Nov. 1, 2000).

¶76 The legislature did not expressly provide for § 13-4517(A)(4)’s
retroactive application. See Krol, 565 P.3d at 1020 ¶ 25 (“[W]hen the
legislature expressly declares that a statute is retroactive, the presumption
against retroactivity does not apply.”). Further, § 13-4517 evinces no
“language that shows a legislative purpose” to accomplish retroactivity.
See id. ¶ 27 (quoting Schuster v. Schuster, 42 Ariz. 190, 199 (1933)). But that

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does not end the inquiry. Instead, the question is whether § 13-4517(A)(4)
is procedural, and can be applied retroactively, or whether it is substantive,
and cannot.

¶77 “A precise distinction between substantive and procedural
rights or interests has proven elusive.” Shane B., 198 Ariz. at 88 ¶ 9. But “it
is generally agreed that a substantive law creates, defines, and regulates
rights while a procedural one prescribes the method of enforcing such
rights or obtaining redress.” Allen v. Fisher, 118 Ariz. 95, 96 (App. 1977); see
also Aranda, 198 Ariz. at 470 ¶ 12 (“In general, procedural law relates to the
manner and means by which a right to recover is enforced or provides no
more than the method by which to proceed.”).

¶78 Here, we apply the criminal context framework because
§ 13-4517(A)(4) applies only to criminal defendants charged with serious
offenses who have been adjudicated NCNR. It arises from the criminal
justice process and the underlying charges remain criminal. “In the
criminal context, substantive law either defines a crime or involves the
length or type of punishment.” Shane B., 198 Ariz. at 88 ¶ 9 (citation
modified). It is undisputed that § 13-4517(A)(4) does not define a crime.
Therefore, the critical question is whether § 13-4517(A)(4) affects a
“punishment” on defendants. It does not.

¶79 The Ex Post Facto Clauses of the U.S. and Arizona
Constitutions prohibit laws that increase the punishment for a crime after
the offense was committed. See U.S. Const. art. I, § 9, cl. 3; Ariz. Const.
art. 2, § 25. Accordingly, the Ex Post Facto Clauses pertain only to penal
statutes. See U.S. Const. art. I, § 9, cl. 3; Ariz. Const. art. 2, § 25; see Cal. Dep’t
of Corr. v. Morales, 514 U.S. 499, 504 (1995). Thus, in determining whether a
statute violates the Ex Post Facto Clauses, courts consider several factors to
assess whether the statute is civil in nature and therefore outside the scope
of the clauses. See, e.g., State v. Trujillo, 248 Ariz. 473, 479 ¶ 34 (2020). All
five factors analyze whether a statute aims at inflicting punishment:
whether the statute (1) has been historically regarded as punishment,
(2) imposes an affirmative restraint or disability, (3) promotes the
traditional goals of punishment, (4) has a “rational connection to a
nonpunitive purpose,” and (5) is excessive with respect to a nonpunitive
purpose. See id. (quoting Smith v. Doe, 538 U.S. 84, 97 (2003)). Under this
framework, statutes affecting or prescribing civil commitment are not
punitive.

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¶80 Involuntary commitment does not constitute “punishment”
where the statute’s purpose is treatment and public protection, not
retribution or deterrence. See Martin v. Reinstein, 195 Ariz. 293, 304 ¶¶ 23,
25 (App. 1999). In Martin, the court of appeals addressed whether the
Sexually Violent Persons Act (“SVPA”)—a statutory scheme that allows for
involuntary civil commitment—was punitive and thus constituted
punishment. See id. at 303–04 ¶¶ 21–23. The court held that the SVPA was
regulatory in nature because the legislature designed it to provide
treatment and protect the public, rather than to punish individuals for past
crimes. Id. at 304 ¶ 23. It emphasized that “commitment for treatment has
been considered a civil solution to the difficult problems surrounding
mental health treatment,” and that such commitments do not equate to
criminal punishment. See id. ¶ 25. The court also observed that detention,
by itself, does not render a statutory scheme punitive, particularly where
those confined are subject to conditions like other civil commitments. See
id. ¶ 23.

¶81 Kansas v. Hendricks, 521 U.S. 346, 368–69 (1997), reinforces the
conclusion that involuntary commitment does not constitute punishment.
In Hendricks, the U.S. Supreme Court deemed a civil commitment scheme
for sexual offenders non-punitive despite the potential for an indefinite
period of restraint. Id. at 363–64. 2 The Court stated that “[a]lthough the
civil commitment scheme at issue here does involve an affirmative restraint,
the mere fact that a person is detained does not inexorably lead to the
conclusion that the government has imposed punishment.” Id. at 363
(citation modified). Rather, “[t]he [s]tate may take measures to restrict the
freedom of the dangerously mentally ill” because this promotes “a
legitimate nonpunitive governmental objective.” Id. The Court further
noted that “[i]f detention for the purpose of protecting the community from
harm necessarily constituted punishment, then all involuntary civil
commitments would have to be considered punishment. But we have never
so held.” Id. (emphasis in original).

2 The Kansas civil commitment scheme in Hendricks resembles Arizona’s
civil commitment scheme that Martin upheld. Martin, 195 Ariz. at 301 ¶ 15
(noting that “the United States Supreme Court recently upheld the Kansas
SVP Act—an act much like Arizona’s”).
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Opinion of the Court

¶82 This reasoning applies with equal force to § 13-4517(A)(4).
Carson argues that applying § 13-4517(A)(4) retroactively would violate the
Ex Post Facto Clauses because it is “intended to be penal.” As evidence,
Carson points to the fact that the basis for commitment under § 13-4521 “is
defined in the criminal code.” But statutory placement in the criminal code
is not dispositive. See Trujillo, 248 Ariz. at 479 ¶ 30 (concluding that,
“despite placement of the registration statutes in the criminal code, the
legislature intended to create a civil regulatory scheme”).

¶83 To further support his argument that dangerousness trials are
punitive, at oral argument, Carson pointed to the legislature’s decision to
tie the civil commitment period to the presumptive sentencing term for the
underlying offense. See § 13-4521(H) (“A commitment order issued
pursuant to this section may not be in effect for more than the presumptive
sentence the defendant could have received for the highest charged
offense . . . .”). But, as the State argues, the involuntary commitment
resulting from a § 13-4517(A)(4) dangerousness trial is not retributive
because the basis for commitment depends on the current mental condition
of the individual, not a past crime. Specifically, Carson’s involuntary
commitment under the statute would end if the court subsequently deemed
him competent to stand trial or “no longer dangerous.” See
§ 13-4521(D)–(G). Rather than mandating a period of detention tied to the
sentencing term, the statute eliminates indefinite restraint by conditioning
confinement on incompetency and dangerousness and capping its
duration. Moreover, § 13-4521(F) reinforces the statute’s non-punitive
design. It directs that any commitment occur in a secure mental health
facility for the purpose of providing the defendant with “education, care,
supervision and treatment,” rather than imposing punishment.
§ 13-4521(F).

¶84 Even if § 13-4517(A)(4) were punitive, it only authorizes the
option for a party to request a dangerousness trial. It does not guarantee
that a dangerousness trial will occur or result in commitment under
§ 13-4521(F). As in Shane B., the statute imposes no immediate consequence
and does not deprive a defendant of a current liberty interest. See 198 Ariz.
at 89 ¶ 15. There, this Court upheld retroactive application of a statute that
designated the petitioner as a “first time felony juvenile offender,” in part
because the designation caused no present loss of “any enumerated right or
privilege.” Id. The designation only established that certain procedural
consequences would follow if the juvenile reoffended. Id.

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Section 13-4517(A)(4) functions similarly. It does not itself impose
commitment or any other restraint on liberty. See § 13-4517(A)(4). Instead,
it allows the State to request a dangerousness trial, and whether
commitment follows depends on whether the dangerousness trial occurs
and the factfinder’s determination. See § 13-4521(E)–(F).

¶85 This contrasts with Saucedo v. Superior Court, 190 Ariz. 226,
228–29 (App. 1997), where the court of appeals invalidated the retroactive
application of a statute that automatically transferred certain juvenile
defendants to adult court based on their age and offense type. There, the
court deemed the statute punitive because it imposed an immediate change
in legal status and subjected the juvenile to adult criminal penalties for the
same underlying conduct. See id. Section 13-4517(A)(4), however, does not
change the legal character of the underlying charges or increase the
punishment associated with them. It preserves the criminal nature of the
charges but allows for a separate civil process that may result in
treatment-based commitment—only after a factfinder determines the
defendant meets the statutory criteria. See §§ 13-4517(A)(4), -4521(E)–(F).
And if the factfinder makes that determination, the court must dismiss the
charges. See § 13-4521(F).

¶86 In sum, § 13-4517(A)(4) centers on a defendant’s current
mental condition, not a past offense. It does not alter the elements of a
crime, extend the punishment, or trigger any immediate consequence to a
defendant’s constitutional rights. Instead, dangerousness trials merely
provide a “method by which to proceed” once a court deems a defendant
NCNR. See Krol, 565 P.3d at 1023 ¶ 40 (holding that a workers’
compensation law was substantive and could not apply retroactively
because it did not “merely relate to the manner and means by which a right
to recover is enforced or provide the method by which to proceed” (citation
modified)). In any event, even if a dangerousness trial leads to involuntary
commitment, it is commensurate with the civil commitment schemes
upheld in Hendricks and Martin.

CONCLUSION

¶87 We affirm the trial court’s order denying Carson’s motion to
dismiss and motion for reconsideration, effectively authorizing the State to
renew Carson’s prosecution. We also vacate Carson II and reiterate our
remand to the trial court in the 2022 Case for proceedings consistent with

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this Opinion. Further, we hold that § 13-4517(A)(4) applies only while
charges remain pending, permits reliance on a prior NCNR finding so long
as it relates to the same conduct, and may be applied retroactively. Further,
a delay between the NCNR finding and the petition does not preclude a
dangerousness trial. We express no opinion on the merits of either course
available to the State—rebutting the presumption or pursuing a
dangerousness trial—which remain within the purview of the trial court.

27