State v. Henry

Citations: 228 P.3d 900; 224 Ariz. 164; 576 Ariz. Adv. Rep. 22; 2010 Ariz. App. LEXIS 26Docket: 2 CA-CR 2009-0035

Court: Court of Appeals of Arizona; February 23, 2010; Arizona; State Appellate Court

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David Charles Henry was convicted following a bench trial for failing to obtain an identification card or driver's license, as required for individuals previously convicted of sex offenses. Henry was sentenced to 3.75 years in prison and mandated to register as a sex offender. He appealed, arguing that the indictment should have been dismissed based on double jeopardy and the ex post facto application of the law, claiming that the charges did not apply to him due to his 1974 rape conviction. The trial court had denied his motion to dismiss, and during the trial, he represented himself with advisory counsel. The court dismissed one charge and acquitted him of another, ultimately convicting him on one count. 

On appeal, Henry contended that the charges he faced were based on laws that did not apply to him retroactively, violating his constitutional rights against ex post facto laws. The court reviewed these legal arguments de novo, stating that both the U.S. and Arizona constitutions prohibit ex post facto laws, and typically follow federal interpretations, affirming the trial court's judgment and sentence.

An ex post facto law is specifically defined by four categories established in Calder v. Bull: (1) criminalizing actions that were innocent when committed, (2) increasing the severity of a crime, (3) imposing a harsher punishment than what was applicable at the time of the offense, and (4) altering the rules of evidence to disadvantage the accused. In State v. Noble, the Arizona Supreme Court determined that A.R.S. 13-3821, which mandates sex offender registration, violates the ex post facto clause only if it constitutes a change in punishment beyond what was established when the crime was committed. The court focused on whether the registration laws are punitive or regulatory, as punitive laws cannot be applied retroactively while regulatory laws can. To assess a law's nature, courts first consider legislative intent. If a nonpunitive intent is found, the court then evaluates if the law's scheme is so punitive in purpose or effect that it undermines that intent. The burden of proof rests on the individual challenging the law, requiring clear evidence that it is punitive. The history of Arizona's sex offender registration laws began in 1951, with initial requirements for registration and penalties for noncompliance, evolving over the years into a structured statutory framework that has undergone various codifications.

In 1977, the legislature renumbered the sex offender registration statute from former 13-1271 to A.R.S. 13-3821, introducing minor amendments and designating violations as class two misdemeanors. The statute was repealed in 1978, resulting in a five-year absence of a registration law. In 1983, the legislature enacted a modern version of the registration statute, A.R.S. 13-3821, which closely resembled its predecessor. Since then, the statutes (A.R.S. 13-3821 to 13-3829) have been revised multiple times, such as in 1985 when access to sex offender information was broadened beyond law enforcement. In 1998, a public sex offender website was established, and community notification of offenders' presence became mandatory. In 2001, the statute was amended to retroactively apply to certain offenders convicted before 1978. Key requirements for sex offenders now include lifetime registration, notification of law enforcement regarding changes in personal information and online identifiers, and DNA sample submission. Penalties for non-compliance have escalated over the years, with failure to register evolving from a class two misdemeanor in 1985 to a class four felony in 1998. A temporary reclassification in 2004 for failure to update identification to a class one misdemeanor was reverted to a class six felony in 2006. The ongoing assessment includes whether the legislation aims to punish past behavior or to regulate current circumstances, with a noted lack of legislative history regarding the 1983 statute's intent.

A.R.S. 13-3821 is primarily aimed at facilitating law enforcement's ability to locate child sex offenders, highlighting its nonpunitive purpose. The court referenced the findings in Falcone, where it was established that the legislature intended to protect communities rather than punish offenders through the community notification statute in effect in 1997, which lacked internet notification requirements. In evaluating whether the punitive effects of sex offender registration laws outweigh their regulatory purposes, the court considered factors from Kennedy v. Mendoza-Martinez, including the nature of the sanction, historical perspectives on punishment, and the relationship between the laws' effects and their intended regulatory function. The Supreme Court's ruling in Smith confirmed that Alaska's similar registration and notification scheme was regulatory rather than punitive, thus upholding its retroactive application under the Ex Post Facto Clause. While the Arizona Supreme Court previously recognized sex offender registration as punitive, the court in this case noted that Smith's broader cultural analysis undermines that view. Additionally, despite Arizona’s statutes having implementation procedures and criminal enforcement, which could suggest a punitive nature, the Arizona Supreme Court has upheld the registration system as regulatory. Consequently, the court finds no basis to distinguish Arizona's scheme from the Alaska scheme deemed regulatory by the Supreme Court.

The Arizona legislature has tailored sex offender registration and notification laws to focus on nonpunitive objectives, requiring community and website notifications only for offenders considered high-risk, while limiting public access to offenders' online identifiers. Under A.R.S. 13-923, courts may terminate registration and notification for sex offenders under twenty-two. Although the cases Noble and Falcone did not specifically analyze the current registration scheme, they addressed similar components. Noble affirmed the applicability of Arizona's initial registration scheme retroactively, acknowledging its punitive nature but also recognizing mitigating factors. Despite Henry's appeal to overrule Noble, the court remains bound by earlier decisions, particularly the Smith case, which concludes that Arizona's sex offender registration does not violate ex post facto laws as applied to him. Recent changes to the registration scheme have made it more burdensome, with broader community notifications mandated, effectively eliminating prior confidentiality protections. Consequently, sex offenders are subjected to public scrutiny regarding their registration status. The Arizona Supreme Court has also determined that sex offender registration constitutes a severe consequence that warrants a jury trial under Arizona’s Constitution. While the Sixth Amendment protections are applied only in criminal cases, the court maintains that sex offender registration is a civil regulation and not punitive for ex post facto analysis, leading to a complex legal interpretation.

As an intermediate appellate court, the decision affirms the application of sex offender registration and notification statutes consistent with previous court rulings in Noble and Smith. Henry's argument regarding double jeopardy, citing the Fifth Amendment and the Arizona Constitution, was inadequately developed in his brief and thus not considered further. The court finds that sex offender registration is regulatory and nonpunitive, indicating that his conviction for violating registration statutes would not amount to double jeopardy even if properly presented.

Regarding Henry's claim of a speedy trial violation, the court notes that charges in a separate case were dismissed at the state's request due to a witness issue, but the relevant procedural history is insufficiently documented for appellate review. The court rejects Henry's argument about the prosecutor's motives for the dismissal, affirming that the trial court had already determined the dismissal was not an attempt to evade speedy trial requirements. Henry's proper recourse to address these issues would have been through a motion for reconsideration in the earlier case, not by a motion to dismiss in the current matter.

Consequently, Henry's conviction and sentence are affirmed, with judges J. William Brammer, Jr. and Garye L. Vásquez concurring. Additionally, Henry retracted his argument about the separation of powers, and an error regarding the issuance date of his identification card is deemed irrelevant. The statutes applicable at the time of the offense remain consistent with current versions, and the trial court adjusted the indictment to reflect the correct statute under which Henry was charged.

The amendment to A.R.S. 13-3821 did not take effect until September 19, 2007, which was after Henry committed the offense charged in count two, making the state's assertion that he was convicted under the new statute incorrect. Henry did not contest whether the state provided evidence of his actual knowledge regarding the requirement to register as a sex offender, an element necessary for the conviction under A.R.S. 13-3821 as mandated by the Due Process Clause and the precedent set in Lambert v. California. Although the state did not focus on Henry's awareness of his obligations during the trial, evidence was admitted showing a prior conviction for failing to report a change of address as a registered sex offender. The court is presumed to have applied the law correctly, and the evidence was deemed sufficient to support Henry's conviction. Henry challenged the applicability of current sex offender registration laws to himself, prompting an ex post facto analysis that transcends the specific statute he was convicted under. The federal and Arizona provisions prohibit ex post facto laws, and contrary to Henry's claim, sex offender registration laws were in effect at the time of his conviction. The terms 'retroactive' and 'retrospective' are used interchangeably by the state's supreme court. Additionally, during oral argument, Henry's counsel mistakenly attempted to differentiate his case based on the sanctions of Alaska's registration scheme, which was clarified to involve criminal penalties, including felony charges for failure to register.