Fushek v. State

SUPREME COURT OF ARIZONA
En Banc

DALE JOSEPH FUSHEK, ) Arizona Supreme Court
) No. CV-07-0251-PR
Petitioner/Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CV 06-0598
STATE OF ARIZONA, )
) Maricopa County
Real Party in Interest/ ) Superior Court
Appellant. ) No. LC2006-000371-001 DT
)
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Douglas L. Rayes, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division One
215 Ariz. 274, 159 P.3d 584 (App. 2007)

VACATED
________________________________________________________________

STINSON MORRISON HECKER, L.L.P. Phoenix
By Michael Charles Manning

And

LAW OFFICE OF THOMAS M. HOIDAL, P.L.C. Phoenix
By Thomas M. Hoidal
Attorneys for Dale Joseph Fushek

ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By Diane Gunnels Rowley, Deputy County Attorney
Attorneys for State of Arizona
________________________________________________________________
H U R W I T Z, Justice

¶1 This case requires us to decide whether the Arizona

Constitution guarantees a jury trial to a misdemeanor defendant

when the State files a special allegation of sexual motivation

pursuant to Arizona Revised Statutes (“A.R.S.”) § 13-118 (2001).

I.

¶2 In November 2005, the Maricopa County Attorney filed a

complaint in the San Tan Justice Court alleging that Dale Joseph

Fushek had committed ten misdemeanors. The State also filed a

special allegation of sexual motivation pursuant to A.R.S. § 13-

118 1 for each alleged offense. If the trier of fact finds sexual

motivation, the sentencing judge can require Fushek to register

as a sex offender. A.R.S. § 13-3821(C) (Supp. 2007). 2

1
“In each criminal case involving an offense other than a
sexual offense, the prosecutor may file a special allegation of
sexual motivation if sufficient admissible evidence exists that
would justify a finding of sexual motivation by a reasonable and
objective finder of fact.” A.R.S. § 13-118(A).
2
Fushek allegedly committed the offenses between 1984 and
1993. Arizona first enacted a sex offender registration statute
in 1951. The modern version, A.R.S. § 13-3821, was enacted in
1983. 1983 Ariz. Sess. Laws, ch. 202, § 13. Since 1983, the
registration and monitoring statutes, A.R.S. §§ 13-3821 to
-3829, have undergone several changes, most recently in 2007.
2007 Ariz. Sess. Laws, ch. 84, §§ 1-3; ch. 176, § 4; ch. 287,
§ 10. A.R.S. § 13-118 was first enacted in 1995. 1995 Ariz.
Sess. Laws, ch. 257, § 1. We assume for the purposes of this
case that these statutes apply retroactively, State v. Noble, 171 Ariz. 171, 178, 829 P.2d 1217, 1224 (1992), and therefore
cite to the current versions.
2
¶3 The State dismissed three of the charges, and Fushek

requested a jury trial on those remaining: five counts of

contributing to the delinquency of a minor, one count of

assault, and one count of indecent exposure. The justice court

ruled that Fushek is entitled to a jury trial only on the

indecent exposure charge.

¶4 Fushek filed a special action in the superior court.

That court accepted jurisdiction and granted relief, finding

that Article 2, Section 24 of the Arizona Constitution entitles

Fushek to a jury trial on all counts of the complaint. Citing

Derendal v. Griffith, 209 Ariz. 416, 425 ¶ 37, 104 P.3d 147, 156

(2005), the superior court found that Fushek has a right to

trial by jury because sex offender registration is an

“additional, severe, direct, uniformly applied statutory

consequence[] that reflect[s] the legislature’s judgment that

the offense is serious.”

¶5 The court of appeals reversed. Fushek v. State, 215

Ariz. 274, 279 ¶ 18, 159 P.3d 584, 589 (App. 2007). That court

concluded that there is no right to a jury trial under Article

2, Section 24 because the trial judge is not required under

§ 13-3821 to compel a convicted defendant to register as a sex

offender, and the statutory consequence is therefore not

“uniformly applied.” Fushek, 215 Ariz. at 278 ¶¶ 15-16, 159

P.3d at 588.

3
¶6 We granted Fushek’s petition for review because this

case presents a constitutional question of first impression and

statewide importance. See ARCAP 23(c)(3). We have jurisdiction

pursuant to Article 6, Section 5(3) of the Arizona Constitution

and A.R.S. § 12-120.24 (2003).

II.

¶7 The jury trial guarantees of the Arizona Constitution

are set forth in Article 2, Sections 23 and 24. Section 23

provides that “[t]he right of trial by jury shall remain

inviolate.” Ariz. Const. art. 2, § 23. It guarantees a jury

trial if the “statutory offense has a common law antecedent that

guaranteed a right to trial by jury at the time of Arizona

statehood.” Derendal, 209 Ariz. at 425 ¶ 36, 104 P.3d at 156.

The State conceded below that Fushek is entitled to a jury trial

on the indecent exposure charge under Section 23. 3 Fushek does

not argue that assault and contributing to the delinquency of a

minor have common law antecedents meeting the Section 23 test.

¶8 Section 24 guarantees the right to a jury trial “[i]n

criminal prosecutions.” Ariz. Const. art. 2, § 24. Because the

language of Section 24 is virtually identical to that of the

Sixth Amendment, which guarantees the right to jury trial “[i]n

all criminal prosecutions,” U.S. Const. amend. VI, “we have

3
In its supplemental brief, the State suggests that this
concession was in error, but recognizes that it is bound by the
concession in this case.
4
construed it consistently with the federal constitution to

preserve the right to jury trial only for ‘serious,’ as opposed

to ‘petty,’ crimes.” Derendal, 209 Ariz. at 420 ¶ 13, 104 P.3d

at 151 (citations omitted).

¶9 Thus, in Derendal, we looked to the Supreme Court’s

opinion in Blanton v. City of North Las Vegas, 489 U.S. 538

(1989), to guide our analysis of whether an offense is “serious”

under Section 24. Blanton stressed that the most relevant

criterion for determining whether an offense is serious is “the

severity of the maximum authorized penalty.” 489 U.S. at 541

(quoting Baldwin v. New York, 399 U.S. 66, 68 (1970) (plurality

opinion)). Derendal similarly noted that “we leave to the

legislature primary responsibility for determining, through its

decision as to the penalty that accompanies a misdemeanor

offense, whether the offense qualifies as a ‘serious offense.’”

209 Ariz. at 422 ¶ 21, 104 P.3d at 153.

¶10 “[W]hen the legislature classifies an offense as a

misdemeanor and punishable by no more than six months

incarceration, we will presume that offense to be a petty

offense that falls outside the jury requirement of Article 2,

Section 24 of the Arizona Constitution.” Id.; see Blanton, 489

U.S. at 543 (adopting similar presumption). Under that test,

5
the misdemeanor charges against Fushek are presumptively not

jury-trial eligible. 4

¶11 The Supreme Court noted in Blanton that a

legislature’s view as to the seriousness of a crime can be

reflected not only in the maximum authorized prison term, but

also “in the other penalties that it attaches to the offense.”

489 U.S. at 542. Thus, in Derendal, we held that an offense

carrying a maximum exposure of six months’ incarceration is

jury-trial eligible if the defendant can “demonstrate that

additional grave consequences that attend a misdemeanor

conviction reflect a legislative determination that the offense

is indeed ‘serious.’” 209 Ariz. at 422 ¶ 21, 104 P.3d at 153.

A defendant attempting to rebut the presumption that a crime is

petty must establish three things about an additional

consequence. “First, the penalty must arise directly from

statutory Arizona law.” Id. at 422 ¶ 23, 104 P.3d at 153

(citing Blanton, 489 U.S. at 543 n.8). “Second, the consequence

must be severe.” Id. at 423 ¶ 24, 104 P.3d at 154. “Finally,

we will consider only those consequences that apply uniformly to

all persons convicted of a particular offense.” Id. at 423

¶ 25, 104 P.3d at 154.

4
The assault charge, a class 3 misdemeanor, carries a
maximum incarceration period of thirty days. A.R.S. §§ 13-
707(A), 13-1203(A)(3) (2001). Contributing to the delinquency
of a minor, a class 1 misdemeanor, carries a maximum sentence of
six months. A.R.S. §§ 13-707(A), 13-3613(A) (2001).
6
¶12 The parties agree that the first prong of this test is

satisfied – the potential consequence of sex offender

registration arises directly from Arizona statutes, A.R.S.

§§ 13-118 and 13-3821. The parties disagree, however, on the

application of the uniformity and severity prongs.

A.

¶13 The court of appeals concluded that the requirement of

uniformity was not met because, even if the State proves sexual

motivation beyond a reasonable doubt, the trial court has

discretion under § 13-3821(C) whether to order sex offender

registration. Fushek, 215 Ariz. at 278 ¶ 16, 159 P.3d at 588.

The court of appeals believed that only mandatory statutory

consequences satisfy the Derendal uniformity requirement. Id.

¶14 We disagree. The uniformity requirement avoids “the

anomalous situation where some persons would be entitled to a

jury trial and others would not, although charged with exactly

the same substantive Arizona crime.” Derendal, 209 Ariz. at 423

¶ 25, 104 P.3d at 154 (quoting State ex rel. McDougall v.

Strohson, 190 Ariz. 120, 125, 945 P.2d 1251, 1256 (1997)).

Accordingly, we will not consider a consequence arising from a

statutory scheme unless the consequence would apply to every

person convicted of the crime at the time of conviction.

¶15 For example, no jury trial is required for a

misdemeanor drug offense simply because a conviction could cause

7
the later denial of an application for a professional license.

See Stoudamire v. Simon, 213 Ariz. 296, 299 ¶ 12, 141 P.3d 776,

779 (App. 2006). Such a consequence would not affect a

defendant who never applied for a license. We would thus be

unable at the time of trial to determine whether the defendant

faced that particular consequence. In contrast, in this case

the State has made a special allegation of sexual motivation.

If sexual motivation is found by the trier of fact, the justice

court is authorized without more to impose a registration

requirement upon conviction. A.R.S. § 13-3821(C); see Foote v.

United States, 670 A.2d 366, 372 (D.C. 1996) (considering only

judge-imposed penalties and refusing to consider sanctions

“imposed only in hypothetical civil or administrative

proceedings” for purposes of the Sixth Amendment jury-trial

right). The uniformity requirement is met because every time a

special allegation of sexual motivation is filed, the defendant

against whom the allegation is made faces possible sex offender

registration as part of the sentencing court’s disposition of

the case.

¶16 The fact that the trial judge is not required upon a

finding of sexual motivation to impose sex offender registration

does not mean that the potential consequence is not uniformly

applied. It is enough that all defendants in such a position

face the possibility of the consequence. The maximum potential

8
 B.

¶17 Given its conclusion that the “uniformity” prong of

Derendal was not satisfied, the court of appeals did not

determine whether sex offender registration is a sufficiently

severe consequence to require a jury trial under Article 2,

Section 24. 5 Our task is thus to determine whether registration

as a sex offender is such a grave consequence that it

“reflect[s] a legislative determination that the offense is

indeed ‘serious.’” Derendal, 209 Ariz. at 422 ¶ 21, 104 P.3d at

153.

1.

¶18 The State argues that State v. Noble, 171 Ariz. 171,

829 P.2d 1217 (1992), compels the summary rejection of Fushek’s

jury trial claim. Noble held that the then-extant sex offender

registration statute could be applied to defendants who had

5
The court of appeals seems to have assumed without deciding
that the severity prong was met, stating without further
analysis: “Although this consequence arises from statutory law,
and is one that can have severe collateral consequences, we
cannot agree that it is ‘uniformly applied’ as that term is
defined in Derendal.” Fushek, 215 Ariz. at 278 ¶ 15, 159 P.3d
at 588 (emphasis added).

9
committed their crimes before the statute’s enactment without

violating the ex post facto clauses of the federal and state

constitutions. Id. at 178, 829 P.2d at 1224. Noble concluded

for the purposes of ex post facto analysis that the registration

statute was more regulatory than punitive under the test set

forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69

(1963). 6 Id. The State therefore asserts that registration

cannot be considered a statutory “penalty” under the Derendal

collateral consequences test.

¶19 We reject the State’s argument. The issue before us

is not whether sex offender registration is criminal punishment

for ex post facto purposes, but rather whether it is a statutory

consequence reflecting a legislative determination that Fushek’s

alleged offenses are “serious.” As the Supreme Court has noted,

the Mendoza-Martinez test addresses only whether a sanction is

civil or criminal. Austin v. United States, 509 U.S. 602, 609-

6
Noble relied heavily on the particulars of the statute then
before the Court, which limited access to information in the sex
offender registry to law enforcement personnel and, in some
cases, potential employers and government agencies. These
restrictions “significantly dampen[ed] [the registration
statute’s] stigmatic effect.” 171 Ariz. at 177, 829 P.2d at
1223. Access to registration information is today considerably
broader. In 1998, the legislature provided for a sex offender
website, making the information of some offenders available to
the public at large. 1998 Ariz. Sess. Laws, ch. 291, § 5
(codified as amended at A.R.S. § 13-3827). In addition, the
current statute requires that individuals and groups in the
communities where offenders live and work be notified of the
offenders’ presence. A.R.S. §§ 13-3825(C), (G), 13-
3826(E)(1)(a).
10
10 & n.6 (1993). The test does not measure whether a sanction

is sufficiently severe to trigger the right to jury trial under

the Sixth Amendment. Cf. People v. Castellanos, 982 P.2d 211,

217 (Cal. 1999) (plurality opinion) (“[T]he method of analyzing

what constitutes punishment varies depending upon the context in

which the question arises.”).

2.

¶20 Fushek, in turn, asserts that this case is controlled

by application of a simple mathematical formula. He starts from

the premise that a potential sentence of six months and one day

entitles a defendant to a jury trial. He then contends that six

months’ incarceration plus sex offender registration is a more

severe penalty than six months plus one day of imprisonment and

that a jury trial is therefore automatically warranted when sex

offender registration is authorized.

¶21 We also reject this mechanistic approach. In Blanton

the defendant was exposed not only to a sentence of six months,

but also to a fine, loss of his driver’s license, and a

requirement to attend an alcohol abuse course. 489 U.S. at 539-

40. Virtually all defendants would accept exposure to an

additional day of imprisonment to avoid these consequences.

Blanton nonetheless held that, for Sixth Amendment purposes, the

consequences were not so severe, even when viewed together with

the maximum prison term, to compel the conclusion that the

11
offense was viewed as serious by the Nevada legislature. Id. at

544.

3.

¶22 The constitutional issue before us cannot be resolved

by the approaches suggested by the State and Fushek. Rather, we

must determine whether this is a “rare situation,” Blanton, 489

U.S. at 543, in which the additional statutory penalty, “viewed

in conjunction with the maximum authorized period of

incarceration,” id., “reflect[s] a legislative determination

that the offense is indeed ‘serious.’” Derendal, 209 Ariz. at

422 ¶ 21, 104 P.3d at 153. To do this, we must examine the

specific provisions of the sex offender registration statutes.

¶23 These statutes do not provide for termination of the

registration requirement, except for registrants who committed

offenses as juveniles. See A.R.S. § 13-3821(F)-(H). 7 Thus, once

imposed, sex offender registration is a lifelong obligation.

See Fisher v. Kaufman, 201 Ariz. 500, 502 ¶ 8, 38 P.3d 38, 40

(App. 2001); State v. Lammie, 164 Ariz. 377, 382-83, 793 P.2d

7
Under A.R.S. § 13-3826(E)(2), the community notification
guidelines committee was required to submit a recommendation to
the governor and the legislature about a process by which a
court could determine if “an offender is no longer required to
register.” The committee simply recommended that the
legislature continue to study and analyze whether such a process
“is the appropriate public policy for this state.” Ariz. State
Leg., Community Notification Guidelines Comm., Final Report,
Dec. 15, 2004, available at http://azmemory.lib.az.us/.

12
134, 139-40 (App. 1990). The duration of the registration

requirement makes this statutory consequence much more severe

than a comparatively short probation period. See United States

v. Nachtigal, 507 U.S. 1, 5 (1993) (holding that the Sixth

Amendment does not require a jury trial when the potential

penalty is five years of probation).

¶24 At the time of registration, the offender must

provide, in addition to any other information required by the

director of the Department of Public Safety, all names by which

he is known, his mailing address, his physical residence,

fingerprints, photograph, any “required online identifiers,” 8 and

the names of the websites or internet communication services

where those identifiers are used. A.R.S. § 13-3821(I). For his

entire life, the registrant must annually update his records and

obtain a new state identification card, even if no changes have

occurred since the last update. Id. § 13-3821(J).

¶25 For the rest of his life, a sex offender must notify

law enforcement within seventy-two hours of any move or change

of name. Id. § 13-3822(A)-(B). A move requires notification to

sheriffs in both the original county and the destination county;

each must be informed in writing, and the latter must also be

8
“‘Required online identifier’ means any electronic e-mail
address information or instant message, chat, social networking
or other similar internet communication name, but does not
include social security number, date of birth, or pin number.”
A.R.S. § 13-3821(Q)(2).
13
informed in person. Id. An offender who studies or works at an

institution of postsecondary education must initially notify the

county sheriff of that jurisdiction and keep him informed of any

changes in enrollment or employment status. Id. § 13-3821(N).

A transient offender must register with the local sheriff every

ninety days. Id. § 13-3822(A). If an offender changes a

required online identifier, he must notify the sheriff within

seventy-two hours and before using the identifier. Id. § 13-

3822(C). An offender who fails to register is guilty of a class

6 felony, and a registrant who does not keep his information

updated is guilty of a class 4 felony. Id. § 13-3824. Those

offenses carry, respectively, one-year and two-and-one-half-year

presumptive prison sentences for first-time offenders. Id.

§ 13-701(C) (2001).

¶26 Widespread publicity accompanies sex offender

registration. For a level two or three offender, the offender’s

name, address, age, current photograph, conviction, and risk

assessment level appear on the sex offender website. Id. § 13-

3827(A)-(B). 9 A sheriff or local law enforcement official must

“notify the community of the offender’s presence in the

9
A sex offender is assigned a risk assessment level based on
the risk he poses to the community. A.R.S. § 13-3826(E)(1).
Risk assessment is conducted by law enforcement agencies. Id.
§ 13-3825.
14
community.” Id. § 13-3825(C). For level two and three

offenders, the notification must be

made to the surrounding neighborhood, area schools,
appropriate community groups and prospective
employers. The notification shall include a flyer
with a photograph and exact address of the offender as
well as a summary of the offender’s status and
criminal background. A press release and a level two
or level three flyer shall be given to the local
electronic and print media to enable information to be
placed in a local publication.

Id. § 13-3826(E)(1)(a). For level one offenders, law

enforcement may notify the people with whom the offender

resides. Id. § 13-3826(E)(1)(b). For offenders who are

students or employees of postsecondary education institutions,

law enforcement must notify the administration of the

institution and, in some instances, the campus community. Id.

§ 13-3825(G). The Department of Public Safety may also

communicate with businesses and organizations that offer

electronic communication services about whether an offender’s

online identifier is being used on their systems. Id. § 13-

3827(E). The statutory requirements of warnings to various

communities about the identities and presence of sex offenders

confirm that the legislature views sex offenses as serious

crimes. Cf. Noble, 171 Ariz. at 177, 829 P.2d at 1223 (noting

potential stigmatic effect of widespread access to sex offender

registration information).

15
¶27 Indeed, almost all the other crimes for which sex

offender registration is authorized or required involve

felonies, recidivist behavior, or crimes against children.

A.R.S. § 13-3821(A), (C); §§ 13-1401 to -1424 (2001 & Supp.

2007); §§ 13-3551 to -3559 (2001 & Supp. 2007). The

authorization of registration for misdemeanors involving sexual

motivation strongly suggests that the legislature views such

crimes as similar to these other plainly serious offenses.

¶28 Furthermore, A.R.S. § 13-118 requires that the State

prove sexual motivation beyond a reasonable doubt, making this

factor akin to an element of an aggravated offense. See In re

Winship, 397 U.S. 358, 364 (1970) (holding that a defendant

cannot be constitutionally convicted without “proof beyond a

reasonable doubt of every fact necessary to constitute the crime

with which he is charged”). For example, simple assault is a

misdemeanor. See A.R.S. § 13-1203. If, however, certain

additional elements are present, a prosecutor may charge

aggravated assault, a felony. Id. § 13-1204 (Supp. 2007). We

view the allegation of sexual motivation as analogous: § 13-118

involves behavior that the legislature views as more serious

than the “simple” misdemeanor charges to which the sexual

motivation allegation is added.

¶29 Finally, the bill that adopted A.R.S. § 13-118

demonstrates that the legislature views misdemeanors committed

16
with sexual motivation as serious offenses. Public safety was

the objective of the bill. 1995 Ariz. Sess. Laws, ch. 257, § 10

(articulating legislative findings). This “paramount

governmental interest” was expressly stated as the justification

for the reduced privacy that community notification entails for

those who are required to register. Id. The importance the

bill places on protecting the public from sex offenders reflects

a legislative view that those who commit offenses with sexual

motivation have engaged in more than simple petty crimes.

¶30 In light of these factors, we conclude that the

potential of sex offender registration reflects a legislative

determination that Fushek has been charged with serious crimes.

As the Supreme Court noted in Blanton, “[t]he judiciary should

not substitute its judgment as to seriousness for that of a

legislature, which is far better equipped to perform the task.”

489 U.S. at 541-42 (quoting Landry v. Hoepfner, 840 F.2d 1201,

1209 (5th Cir. 1988)) (internal quotation marks omitted). We

defer to the legislature’s determination that misdemeanor crimes

involving sexual motivation are serious offenses and hold that

when a special allegation of sexual motivation exposes a

defendant to the possibility of sex offender registration,

Article 2, Section 24 of our Constitution entitles the defendant

to a trial by jury.

17
 III.

¶31 For the foregoing reasons, we vacate the opinion of

the court of appeals and affirm the order of the superior court

granting special action relief.

_______________________________________
Andrew D. Hurwitz, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
W. Scott Bales, Justice

_______________________________________
A. John Pelander, Judge *

*
Justice Michael D. Ryan took no part in the decision in
this matter. Pursuant to Article 6, Section 3 of the Arizona
Constitution, the Honorable A. John Pelander, Chief Judge of the
Arizona Court of Appeals, Division Two, was designated to sit in
his stead.
18