David C. Shinn v. Az boec/freeman

Citation: Not availableDocket: CV-21-0275-PR

Court: Arizona Supreme Court; December 20, 2022; Arizona; State Supreme Court

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The Supreme Court of Arizona addressed the appeal of David C. Shinn against the Arizona Board of Executive Clemency regarding a nunc pro tunc order modifying a criminal sentence for first degree murder. The court considered whether such an order, issued nearly thirty years post-sentencing and without any clerical error, could be subject to collateral attack. The court clarified its stance that courts are unable to issue nunc pro tunc orders absent clerical mistakes, rendering such orders void. 

The background includes that Arizona's sentencing statute for first degree murder evolved from allowing parole after 25 years to prohibiting any possibility of release on parole for offenses committed after January 1, 1994. Nevada Freeman was convicted of first degree murder in 1994 and sentenced to 25 years without the possibility of release until serving that time. The court ultimately reversed and remanded the lower court's decision regarding the nunc pro tunc order.

On May 7, 2019, the Arizona Department of Corrections Rehabilitation and Reentry (ADCRR) incorrectly certified Freeman as eligible for parole. The Arizona Board of Executive Clemency unanimously voted to grant him parole on house arrest on July 30, 2019. However, on October 8, 2019, ADCRR realized its error and requested the Board to rescind its parole grant. Following a rescission hearing on October 23, 2019, the Board deferred its decision until the resolution of Chaparro v. Shinn, which established that the court lacked jurisdiction to amend an illegally lenient sentence not appealed by the State.

After the Chaparro ruling, another rescission hearing was held on May 12, 2020, where ADCRR reiterated its claim of error in certifying Freeman for parole. Freeman presented supporting letters indicating that his original sentencing judge and the Pima County Attorney's Office believed Freeman should be eligible for parole after twenty-five years. Nonetheless, the Board denied the rescission request, but ADCRR continued to detain Freeman.

On June 18, 2020, ADCRR Director David C. Shinn filed a complaint in Maricopa County Superior Court asserting the Board lacked authority to grant Freeman parole. Freeman countered with various claims and sought a preliminary injunction for immediate release. Judge Randall H. Warner denied this motion on August 14, 2020, citing Freeman's sentencing order as not permitting parole.

On September 3, 2020, Freeman and the State entered a stipulation in Pima County Superior Court, acknowledging that all parties intended for Freeman to be eligible for parole after twenty-five years. They requested a correction to the sentencing order to explicitly include parole eligibility. Subsequently, Judge Deborah Bernini issued a nunc pro tunc order amending Freeman's sentence to life without parole eligibility before serving twenty-five years.

Freeman renewed his injunction claim on September 23, 2020, arguing that the nunc pro tunc order granted him parole eligibility. On November 4, 2020, Judge Warner granted this renewed motion, finding Freeman likely to prevail on the merits since the modified sentence, akin to the one in Chaparro, was illegally lenient but final due to the State's inaction on the amended order.

On November 19, 2020, Judge Warner ordered the Arizona Department of Corrections, Rehabilitation and Reentry (ADCRR) to release Freeman on parole, which occurred on December 8, 2020. Shinn appealed the preliminary injunction granted to Freeman, but the court of appeals affirmed, determining that Judge Warner did not abuse his discretion by relying on the Chaparro case to find Freeman’s modified sentence conferred parole eligibility. The court concluded that even if the modified sentence was illegal, it was final and not appealable. It also upheld the nunc pro tunc order as procedurally proper, as it accurately reflected the original intent of Judge Kelly regarding Freeman’s sentence from 1994. 

Review was granted to address the extent of a court's nunc pro tunc authority and the implications of voidable judgments, significant issues statewide. The court's review of the preliminary injunction's grant involves determining if there was an abuse of discretion, which occurs when there is an error of law or lack of record support. To issue a preliminary injunction, a court must find a strong likelihood of success on the merits, potential irreparable harm, a favorable balance of hardships, and public policy support.

Shinn argues that the nunc pro tunc order is void due to exceeding procedural bounds by modifying Freeman's sentence based on judicial rather than clerical error, thus contending Judge Warner erred in granting the injunction. Conversely, Freeman asserts the order corrected his sentence to reflect the original intent regarding parole eligibility, claiming it was voidable rather than void.

Nunc pro tunc orders, which have retroactive legal effect, are derived from a court's jurisdiction over its records and should only correct records to match actual judgments or orders made, not to amend judicial errors. The proper use of this authority is to rectify oversights or incorrect entries in the court's records.

The excerpt addresses the legal principles surrounding nunc pro tunc orders, which are designed to correct the record of actions that have already occurred but were not properly recorded due to inadvertence or mistake, rather than to substitute omitted judicial actions. Specifically, Rule 24.4 allows courts to correct clerical errors, omissions, and oversights, but explicitly prohibits the inclusion of judicial actions in such orders. The passage discusses a particular case where a nunc pro tunc order was used to modify Freeman's criminal sentence, initiated by Judge Bernini under the premise that it corrected a clerical error. However, the analysis reveals that the order actually addressed a judicial error—Judge Kelly's misunderstanding of the legal definition of "release" in the context of parole eligibility. It distinguishes between clerical errors, which can be corrected under Rule 24.4, and judicial errors, which cannot. The record indicated no clerical mistakes in Freeman's sentencing, and the sentencing order accurately reflected the court's oral pronouncement. Furthermore, the excerpt references a precedent (Johnson) that allows for the correction of errors to reflect the original intentions of the court or parties, reinforcing the purpose of nunc pro tunc orders to ensure the accuracy of the record.

The court's authority is limited to correcting the record to reflect orders or judgments that were genuinely made but not recorded due to clerical errors. It cannot create new orders or judgments that were never issued. The case of Johnson confirms that nunc pro tunc orders are strictly for correcting clerical mistakes and do not include the parties' unexpressed intentions. In Johnson, a nunc pro tunc order clarified that a criminal complaint's dismissal was "without prejudice," aligning with the original intent of both the prosecution and the court. The court emphasized that Rule 24.4 restricts nunc pro tunc authority to clerical corrections, which the trial court exceeded in the current case.

The distinction between void and voidable orders is also addressed, noting confusion in Arizona jurisprudence regarding these terms. A void order lacks legal effect and can be vacated at any time, while a voidable order is legally enforceable until reversed or vacated through direct appeal or proper post-judgment motion. Void orders are subject to collateral attack, while voidable orders are not. The criteria for determining whether an order is void have been established in Arizona law over many decades.

The framework established in Hughes outlines that a judgment or order in Arizona is void if it does not fulfill three jurisdictional elements: (1) jurisdiction over the subject matter, (2) jurisdiction over the parties involved, and (3) jurisdiction to render the specific judgment or order. A failure in any of these elements results in a judgment being void and subject to collateral attack, while a judgment that meets these criteria, despite being erroneous, is merely voidable and cannot be attacked collaterally.

In assessing the nunc pro tunc order regarding Freeman's case, the parties agree that the first two elements are satisfied—subject matter jurisdiction and personal jurisdiction were present. The dispute centers on the third element, which pertains to a court’s jurisdiction to render the specific order. While some precedents suggest that void judgments arise solely from a lack of subject matter or personal jurisdiction, this interpretation does not negate Hughes' third element, which remains relevant in voidness analysis.

Freeman contends that the nunc pro tunc order is merely voidable, arguing that the court had the requisite jurisdiction. However, the analysis indicates that Cockerham did not discard Hughes' third element, as it was not examined in that case. The principle that voidness cannot be overruled by implication is emphasized, ensuring that established legal principles remain intact unless explicitly challenged.

Furthermore, the State asserts that the third element of Hughes implies that procedural rules, such as Rule 24 concerning post-trial motions, carry jurisdictional weight. This is supported by case law, where a court's lack of jurisdiction due to procedural violations has been established.

The Arizona Supreme Court reaffirmed that superior courts lack jurisdiction to modify original judgments once they have been affirmed on appeal, as established in *State v. Falkner*. This decision clarifies that modifications to sentences must meet specific criteria outlined in procedural rules, and courts do not possess inherent authority to alter sentences. A distinction is made between subject matter jurisdiction, which is defined by the Arizona Constitution and statutes, and a court's authority to issue orders, which is governed by procedural rules. In this case, the trial court incorrectly invoked Rule 24.4 to modify Freeman’s sentence without correcting a clerical error, rendering the order void and subject to collateral attack. The court emphasized the need for clear terminology to differentiate between jurisdictional issues and a court's authority to act. The discussion also references *Black*, which established a two-pronged test for nunc pro tunc orders, requiring a clear record of the clerical error and a statement of sufficient evidence to support the order.

A nunc pro tunc order is not immune to collateral attack unless the judgment or record shows specific facts justifying it. If such safeguards are absent, a void judgment could mistakenly be treated as valid. A nunc pro tunc order can only correct clerical errors, and a court can review the entire record to confirm this. In this case, Judge Bernini’s order altered the original sentencing outcome rather than rectifying a clerical mistake. The previous ruling in Black prohibits any inconsistency with its core principle regarding the limited use of nunc pro tunc orders. Consequently, the nunc pro tunc order in question is subject to collateral attack because it attempted to address a judicial error without evidence of a clerical mistake in the record. Freeman's original lawful sentence was improperly replaced with a lenient one based on an alleged but unproven intention from the sentencing judge, violating the established legal framework. The court concluded that the nunc pro tunc order is void, which led to Judge Warner's error in granting a preliminary injunction based on it. The court vacated the appellate decision, reversed the trial court's injunction, and remanded the case for consideration of other potential grounds for injunctive relief not related to the void order.