SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-07-0412-PR
)
Respondent, ) Court of Appeals
) Division One
v. ) No. 1 CA-CR 07-0041 PRPC
)
) Maricopa County
GARY DOUGLAS PEEK, ) Superior Court
) No. CR2002-093788
)
Petitioner. ) O P I N I O N
_________________________________ )
Appeal from the Superior Court in Maricopa County
The Honorable Bethany G. Hicks, Judge
VACATED AND REMANDED
________________________________________________________________
Order of the Court of Appeals, Division One
Filed Nov. 2, 2007
ORDER VACATED
________________________________________________________________
ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By Diane Gunnels Rowley, Deputy County Attorney
James P. Beene, Deputy County Attorney
Attorneys for State of Arizona
CHEIFETZ, IANNITELLI, MARCOLINI, P.C. Phoenix
By James J. Belanger
And
LEWIS AND ROCA, L.L.P. Phoenix
By Scott M. Bennett
Attorneys for Gary Douglas Peek
________________________________________________________________
B E R C H, Vice Chief Justice
¶1 Gary Douglas Peek seeks review of a term of lifetime
probation imposed upon his conviction for an act of attempted
child molestation that occurred between 1994 and 1996. We
conclude that lifetime probation was not available when Peek
committed the crime and therefore vacate the trial court’s order
placing him on lifetime probation.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶2 In 2003, pursuant to a plea agreement, Petitioner Peek
pled guilty to two counts of attempted child molestation that
occurred between 1994 and 1996. In accordance with the plea
agreement, the court sentenced Peek to ten years’ incarceration
for the first count and imposed lifetime probation on the second
count.
¶3 In 2006, Peek sought relief from the imposition of
lifetime probation on count two by filing a petition for post-
conviction relief, which the trial court summarily denied.
After the court of appeals denied review, Peek petitioned this
Court for relief, arguing that lifetime probation was not
authorized by statute when he committed his crimes. We granted
review to address whether lifetime probation was available for
conviction of attempted child molestation committed between 1994
and 1996. We have jurisdiction pursuant to Article 6, Section
5(3) of the Arizona Constitution, Arizona Revised Statutes
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(“A.R.S.”) section 13-4239 (2001), and Arizona Rule of Criminal
Procedure 32.9.
II. DISCUSSION
¶4 Peek’s petition for post-conviction relief was
untimely; his claim should have been raised in his “of right”
petition for post-conviction relief. See Ariz. R. Crim. P.
32.1, 32.4. The State nonetheless joins Peek in asking that we
address the legal issue raised. Because the State has waived
preclusion and this case presents a recurring legal issue of
statewide importance on which trial courts have rendered
conflicting opinions, we will address the merits of the
petition. See id. 31.19(c)(3); cf. id. 32.2(c) (placing the
burden on the State to plead and prove preclusion and affording
the court discretion to raise preclusion sua sponte).
¶5 Peek argues that the court may not impose a sentence
greater than that allowed by law at the time the offense was
committed and that, when he committed his crime, the maximum
allowable term of probation was five years. He therefore
maintains that lifetime probation could not be ordered. See
Collins v. Youngblood, 497 U.S. 37, 43 (1990); State v.
Gonzalez, 216 Ariz. 11, 14-15, ¶¶ 13-15, 162 P.3d 650, 653-54
(App. 2007); cf. A.R.S. § 13-4037(A) (2001) (requiring
correction of an illegal sentence upon appeal by the defendant).
¶6 The sentencing provision in effect when Peek committed
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his crimes provided in relevant part as follows:
After conviction of a felony offense that is included
in chapter 14 of this title, if probation is
available, probation may continue for a term . . . up
to and including life and that the court believes is
appropriate for the ends of justice.
A.R.S. § 13-902(E) (Supp. 1993). We review statutory
interpretation issues de novo. State v. Armstrong, 218 Ariz.
451, 463, ¶ 54, 189 P.3d 378, 390 (2008).
A. Legislative Modifications to Lifetime Probation Statute
¶7 At all times relevant to this case, Arizona statutes
have defined various crimes against victims who are younger than
fifteen as “Dangerous Crimes Against Children” (“DCAC”). A.R.S.
§§ 13-604.01(K)(1) (1989), 13-604.01(J)(1) (Supp. 1993), 13-
604.01(K)(1) (Supp. 1997). A completed offense was designated
as a DCAC in the first degree and a preparatory offense was a
DCAC in the second degree. Id. §§ 13-604.01(K)(1) (1989), 13-
604.01(J)(1) (Supp. 1993), 13-604.01(K)(1) (Supp. 1997).
¶8 Before 1994, a person convicted of any second degree
DCAC could be placed on lifetime probation. Id. § 13-604.01(I)
(1989). Effective January 1, 1994, however, the legislature
amended various sections of the criminal code, including those
relating to lifetime probation. 1993 Ariz. Sess. Laws, ch. 255,
§ 8 (1st Reg. Sess.). The legislature eliminated subsection 13-
604.01(I), the provision allowing lifetime probation for second
degree DCAC offenses, and placed in the general probation
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statute § 13-902(E), quoted above, which authorized lifetime
probation for felony offenses “included in chapter 14.” 1993
Ariz. Sess. Laws, ch. 255, §§ 8, 17 (adding § 13-902(D), which
was renumbered as 13-902(E)).
¶9 Thus, before January 1, 1994, lifetime probation was
available for attempted (or second degree) DCAC offenses, but
not for sexual offenses against adults. A.R.S. § 13-604.01(I),
(K) (1989). After the change, lifetime probation was not
restricted to crimes against children, but also was not
available for all DCAC offenses. Id. § 13-902(E) (Supp. 1993).
For example, before the amendment, lifetime probation was
available for attempted second degree murder of victims younger
than fifteen, but unavailable for sexual abuse of victims
fifteen years old or older. Id. §§ 13-604.01(I), (K), -902
(1989). Following the amendment, the opposite was true because
the pivotal factor shifted from whether the victim was younger
than fifteen to whether the offense was “included in chapter
14.”
¶10 In 1997, the legislature amended § 13-902(E) to
explicitly apply to an attempt to commit an offense included in
chapter 14. 1997 Ariz. Sess. Laws, ch. 179, § 2 (1st Reg.
Sess.). Thus, lifetime probation was clearly available for an
attempted child molestation occurring before 1994 or after the
effective date of the 1997 amendment. This opinion addresses
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whether lifetime probation was also available in the intervening
period during which Peek committed the attempt offense at issue.
B. Construing “a felony offense that is included in chapter
14”
¶11 When Peek committed his crimes, § 13-902(E) allowed
lifetime probation for conviction of “a felony offense that is
included in chapter 14 of [Title 13].” A.R.S. § 13-902(E)
(Supp. 1993). We must construe penal statutes “according to the
fair import of their terms” to “effect their object.” Id. § 1-
211(C) (2002). Our goal is to discern the legislature’s intent,
the “best and most reliable index” of which is the statute’s
language. State v. Getz, 189 Ariz. 561, 563, 944 P.2d 503, 505
(1997) (quoting In re Pima County Juvenile Appeal No. 74802-2,
164 Ariz. 25, 33, 790 P.2d 723, 731 (1990)). When the language
of the statute is clear and unambiguous, we need look no further
to ascertain the legislative intent. Id.; State v. Christian,
205 Ariz. 64, 66, ¶ 6, 66 P.3d 1241, 1243 (2003). “[O]nly where
a statute is ambiguous or unclear is a court at liberty to
resort to the rules of statutory interpretation.” State v.
Sweet, 143 Ariz. 266, 269, 693 P.2d 921, 924 (1985).
¶12 Section 13-902(E) seems clear: When Peek committed
his crimes, it authorized lifetime probation only for offenses
“included in chapter 14.” Although chapter 14 included the
completed offense of child molestation, A.R.S. § 13-1410 (Supp.
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1993), it did not include attempted child molestation. Rather,
attempted offenses were included in chapter 10 of Title 13. Id.
§ 13-1001 (1989). The legislature could rationally have chosen
to treat preparatory offenses less harshly than completed
crimes, and § 13-902(E) appears to reflect precisely such a
choice. See Henry M. Hart, Jr. & Albert M. Sacks, The Legal
Process 1124-25 (William N. Eskridge, Jr. & Philip P. Frickey
eds., 1994) (suggesting that plain language be interpreted in
light of context and reasonable purpose of statute).
¶13 The State argues that attempts are part of the
completed offense or cannot be committed in isolation from the
substantive offense. That argument, however, does not address
whether the language of the statute in question encompassed
attempted offenses within § 13-902(E).
¶14 Moreover, we have previously held that sentencing
options for a substantive offense do not automatically apply to
related preparatory offenses. In State v. Herrera, 131 Ariz.
35, 36-37, 638 P.2d 702, 703-04 (1981), for example, we
concluded that a consecutive sentence could not be imposed for
an attempted second degree escape when the statute did not
authorize a consecutive sentence, even though a consecutive
sentence was required for the completed crime. We reasoned that
“even though it would logically follow” that the same penalty
might be imposed for an attempted crime as for the completed
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crime, we could not impose such a sentence when the sentencing
statute did not authorize it. Id. at 37, 638 P.2d at 704. The
statute in Herrera had undergone a change similar to that at
issue before us: A statute clearly requiring consecutive
sentences for both completed and attempted escape was amended by
deleting mention of the attempted crime. Id. at 36, 638 P.2d at
703. Based on this amendment, we concluded that “[w]e cannot
replace what the legislature has taken out.” Id. at 37, 638
P.2d at 704.
¶15 Similarly, in State v. Tellez, the court of appeals
held that a fine mandated for “a violation of any provision of
[§ 13-3408(A)]” could not be imposed for solicitation to commit
the substantive offense because solicitation was an offense
defined in chapter 10 of Title 13. 165 Ariz. 381, 382-83, 799
P.2d 1, 2-3 (App. 1990) (emphasis omitted); see also State v.
Wise, 164 Ariz. 574, 578, 795 P.2d 217, 221 (App. 1990)
(holding, for the same reason, that fine could not be imposed
for attempts to commit the substantive offense).
¶16 We find unpersuasive the court of appeals cases on
which the State relies. State v. Lammie, 164 Ariz. 377, 793
P.2d 134 (App. 1990), and State v. Cory, 156 Ariz. 27, 749 P.2d
936 (App. 1987), addressed whether sex offender registration
could be required for those convicted of attempted sexual
assault. Lammie, 164 Ariz. at 378, 793 P.2d at 135; Cory, 156
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Ariz. at 28, 749 P.2d at 937. The relevant statute required sex
offender registration for those convicted of “a violation of
chapter 14 [of Title 13].” Lammie, 164 Ariz. at 378, 793 P.2d
at 135; Cory, 156 Ariz. at 28, 749 P.2d at 937. The Cory court
concluded that because the defendant pled to a violation of
“§ 13-1001, as well as §§ 13-1406, 13-1401, 13-3821, 13-701, 13-
801, and 13-808,” the sex offender registration provision
applied. Cory, 156 Ariz. at 28, 749 P.2d at 937. It is
unclear, however, how the defendant in Cory violated any of the
listed sections other than § 13-1001; indeed the opinion
reflects conviction only of the attempted offense. Cory, 156
Ariz. at 28, 749 P.2d at 937. In concluding that registration
could be ordered, the court emphasized that the regulatory
purpose of the sex offender registry was served by including
those convicted of attempted sexual assault. Id. Here, in
contrast, we deal with a penal statute.
¶17 In Lammie, the court relied on Cory and similarly
affirmed the sex offender registration requirement. Lammie, 164
Ariz. at 379, 381, 793 P.2d at 136, 138. The court added that
contemporaneous legislative history supported its conclusion
that the legislature intended to include attempts within the
statute.1 Id. at 379, 793 P.2d at 136. Because Cory and Lammie
1
Section 13-3821 has since been amended and now clearly
applies to attempted offenses. 1995 Ariz. Sess. Laws, ch. 257,
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allowed an interpretation at odds with the plain language of the
statute, we do not find them persuasive.
¶18 Nor does State v. Cornish, 192 Ariz. 533, 968 P.2d 606
(App. 1998), support the State’s position. The attempt crime
considered in Cornish fit squarely within the plain language of
the statutory provision. The statute at issue in Cornish
provided an enhanced sentence for those “convicted of a class 4,
5 or 6 felony involving the intentional or knowing infliction of
serious physical injury.” Id. at 535, ¶ 5, 968 P.2d at 608
(citing A.R.S. § 13-604(F) (Supp. 1996)). The defendant was
convicted of “attempted aggravated assault, a class 4 dangerous
felony.” Id. at 534, ¶ 2, 968 P.2d at 607. The defendant
argued that the statute was ambiguous because other subsections
of the statute explicitly applied to both completed and
preparatory offenses, while § 13-604(F) did not explicitly refer
to attempts. Id. at 535, ¶ 6, 968 P.2d at 608. The court
concluded that the defendant’s conviction of attempted
aggravated assault fell within the statute because it was a
“class 4, 5 or 6 felony involving the intentional or knowing
infliction of serious physical injury.” Id. at 535, 537-38, ¶¶
9, 18, 968 P.2d at 608, 610-11. Cornish thus differs from the
instant case because this conviction is not covered by the plain
§ 3 (1st Reg. Sess.). No similar legislative history supports
such a result for § 13-902(E).
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text of the statute.
¶19 The State next argues that the 1994 amendment did
nothing to change the treatment of attempted crimes. We
disagree. The legislature deleted clear language subjecting
attempt offenses to lifetime probation and made lifetime
probation applicable only for those offenses falling within
chapter 14. Had the legislature intended to cover attempts, it
would have chosen to use different language, as it did for the
1997 amendment to § 13-902(E), which explicitly applied to
attempts to commit an offense included in chapter 14. 1997
Ariz. Sess. Laws, ch. 179, § 2. When the legislature intends to
include attempts, it knows how to do so.
III. CONCLUSION
¶20 The statutes in effect when Peek committed his crimes
did not authorize lifetime probation for attempted child
molestation. The lifetime probation term imposed on count two
was therefore illegal and accordingly is vacated. The order of
the court of appeals declining jurisdiction and the superior
court’s order dismissing the petition for post-conviction relief
are vacated, and this matter is remanded to the superior court
for resentencing in a manner consistent with this opinion.
_______________________________________
Rebecca White Berch, Vice Chief Justice
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CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
W. Scott Bales, Justice
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