State of Arizona v. Oscar Pena Trujillo ( 2020 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,
V.
OSCAR PENA TRUJILLO,
Appellant.
No. CR-18-0531-PR
Filed May 4, 2020
Appeal from the Superior Court in Pima County
The Honorable Howard L. Fell, Judge Pro Tempore
No. CR20152255-001
AFFIRMED
Opinion of the Court of Appeals, Division Two
245 Ariz. 414 (App. 2018)
VACATED
COUNSEL:
Mark Brnovich, Arizona Attorney General, O.H. Skinner, Solicitor General,
Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Amy
Pignatella Cain (argued), Assistant Attorney General, Tucson, Attorneys
for State of Arizona
Joel Feinman, Pima County Public Defender, David J. Euchner (argued),
Michael J. Miller, Deputy Public Defenders, Tucson, Attorneys for Oscar
Pena Trujillo
Daniel C. Barr, Randal B. McDonald, Lindsey M. Huang, Perkins Coie, LLP,
Phoenix, and Martin Lieberman, Jared G. Keenan, American Civil Liberties
Union Foundation of Arizona, Phoenix, Attorneys for Amicus Curiae
American Civil Liberties Union of Arizona
STATE OF ARIZONA V. OSCAR PENA TRUJILLO
Opinion of the Court
JUSTICE GOULD authored the opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES
LOPEZ, BEENE, and MONTGOMERY joined. JUSTICE BOLICK
dissented.
JUSTICE GOULD, opinion of the Court:
¶1 We hold that a judge has the authority, for the purposes of
imposing mandatory sex offender registration under A.R.S. § 13-3821(A)(3),
to make the necessary factual finding that the victim is under eighteen. In
reaching this holding, we conclude that Arizona’s sex offender registration
statutes are civil regulatory statutes, not criminal penalties. As a result,
Apprendi v. New Jersey, 530 U.S. 466 (2000) does not apply.
¶2 These laws, which include registration as a sex offender,
community notification, and public access to an offender internet registry,
serve the important civil regulatory purpose of making offender
information “accessible” to the public so that they “can take the precautions
they deem necessary” for their own safety. Smith v. Doe, 538 U.S. 84, 101,
102–03 (2003). In contrast, the rule of Apprendi, which is premised on the
Sixth Amendment right to a jury trial in a criminal case, only applies to
criminal penalties.
I.
¶3 In April 2015, M.A.C., a fifteen-year-old from Honduras,
crossed the border into the United States at McAllen, Texas. Immigration
officials eventually transferred him to a shelter for immigrant children in
Tucson.
¶4 Trujillo was employed as a youth care worker at the Tucson
shelter. One morning, while M.A.C. was staying at the shelter, Trujillo
entered his room and touched M.A.C.’s penis over his clothing. Trujillo
was subsequently convicted of one count of sexual abuse, a class five felony,
in violation of A.R.S. § 13-1404(A).
¶5 In reaching its verdict, the jury determined, as an element of
the offense, that M.A.C. was “fifteen or more years of age.” See § 13-1404(A)
(defining sexual abuse as “intentionally or knowingly engaging in sexual
contact with any person who is fifteen or more years of age without
consent”). It made no other findings about M.A.C.’s age.
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STATE OF ARIZONA V. OSCAR PENA TRUJILLO
Opinion of the Court
¶6 At sentencing, the trial court ordered Trujillo to register as a
sex offender pursuant to § 13-3821(A)(3). Under that statute, a defendant
convicted of sexual abuse must register as a sex offender “if the victim is
under eighteen years of age.” Id. Trujillo objected, arguing that pursuant
to Apprendi, a jury was required to find whether M.A.C. was under
eighteen. The trial court denied Trujillo’s objection.
¶7 The court of appeals affirmed, holding that Apprendi does not
apply to § 13-3821(A)(3) because sex offender registration is a civil
regulatory requirement, not a criminal penalty. State v. Trujillo, 245 Ariz.
414, 421 ¶ 19 (App. 2018). We granted review because this case involves
constitutional and statutory issues of statewide importance.
II.
¶8 Trujillo asserts that Apprendi required the jury to determine
whether M.A.C. was under eighteen because this fact increased the range
of his punishment from the possibility of no registration under § 13-3821(C)
to mandatory registration under § 13-3821(A)(3). As a result, he claims that
the judge had no authority to determine the victim’s age, and that in doing
so, the court violated his right to a jury trial guaranteed by the Sixth
Amendment to the United States Constitution, and article 2, section 24 of
the Arizona Constitution. 1
¶9 We review constitutional questions and questions of law de
novo. State v. Moody, 208 Ariz. 424, 445 ¶ 62 (2004).
A.
¶10 Arizona’s sex offender registration requirements are
contained in §§ 13-3821 through -3829. Registration is triggered by a
conviction for certain specified crimes, as well as crimes where there has
been a “finding of sexual motivation pursuant to § 13-118.” See § 13-
3821(A), (C). Convictions for some crimes mandate registration, while
others allow for discretion in ordering registration. See § 13-3821(A)(1)–(22)
1 Although Trujillo references article 2, section 23 of the Arizona
Constitution in his briefing, he fails to develop any argument based on this
constitutional provision. As a result, we do not address it. See State v. Jean,
243 Ariz. 331, 342 ¶ 39 (2018) (stating that a party does not preserve a state
constitutional claim by “[m]erely referring to the Arizona Constitution” in
its brief).
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STATE OF ARIZONA V. OSCAR PENA TRUJILLO
Opinion of the Court
(mandatory registration offenses); -3821(C) (discretionary registration
offenses).
¶11 Sex offender registration is, with some exceptions, a life-long
requirement. See Fushek v. State, 218 Ariz. 285, 291 ¶ 23 (2008); Fisher v.
Kaufman, 201 Ariz. 500, 502–03 ¶¶ 8–13 (App. 2001); infra ¶ 59 (listing
exceptions to lifetime requirement). When a person registers, he or she
must provide the local county sheriff with his or her name and any aliases,
address/physical location, fingerprints, photograph, “online identifier”
(such as email address, instant message, or other internet communication
name), and the name of any website or internet communication service
where he or she is using the identifier. § 13-3821(I), (J), (S)(2). An offender
must also advise the sheriff of any postsecondary institution where he or
she is a student or an employee. § 13-3821(N). If an offender’s information
changes, he must provide the sheriff with updated information within
seventy-two hours. §§ 13-3822(A); -3821(N) (requiring updates and
changes in enrollment or employment status at a postsecondary
institution). Violating a registration requirement is punishable as a class
four felony. § 13-3824(A); see also § 13-3824(B) (stating that violations
regarding registration requirements for an online identifier or
identification/driver’s license are punishable as a class six felony).
¶12 In 1995, Arizona added a community notification
requirement for certain high-risk offenders. Ariz. Dep’t of Pub. Safety v.
Superior Court (Falcone), 190 Ariz. 490, 493 & n.3 (1997). Under the
community notification provisions, law enforcement is required to
disseminate “the offender’s photograph and exact address and a summary
of the offender’s status and criminal background” to the offender’s
neighbors, “area schools, appropriate community groups and prospective
employers.” § 13-3825(C)(1). Further, “[a] press release and the notification
containing all required offender information must be given to the local
electronic and print media to enable information to be placed in a local
publication.” Id.
¶13 Community notification does not apply to Level One (low-
risk) Offenders (§ 13-3825(C)(2)), but is required for Level Two and Three
(high-risk) Offenders (§ 13-3825(C)(1)). The agency having “custody or
responsibility for supervision of an offender” is tasked with performing a
risk assessment to determine an offender’s risk level. § 13-3825(M).
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STATE OF ARIZONA V. OSCAR PENA TRUJILLO
Opinion of the Court
¶14 Finally, the Department of Public Safety must “maintain an
internet sex offender website for the purpose of providing sex offender
information to the public.” § 13-3827(A). The registry contains the
offender’s name, address, age, current photograph, offense committed, risk
assessment/notification level, and a copy of the offender’s nonoperating
identification license or driver’s license. § 13-3827(B), (F).
¶15 The public does not have access to registry information for
Level One Offenders. § 13-3823; -3825(C)(2). However, the public may
access information about Level Two and Three Offenders, as well as
offenders convicted of certain completed offenses. § 13-3827(A)(1)–(2)
(listing offenses requiring public access to internet registry).
B.
¶16 In Apprendi, the United States Supreme Court held that a jury
must determine any fact, apart from a prior conviction, that increases a
defendant’s prison sentence above the statutory maximum sentence. 530
U.S. at 476 (quoting Jones v. United States, 526 U.S. 227, 243 n.6 (1999)). The
Supreme Court has subsequently expanded the scope of Apprendi to
encompass any fact that increases the minimum or maximum range of a
prison sentence or a criminal penalty. See United States v. Haymond, 139 S.
Ct. 2369, 2378–79, 2382 (2019) (applying Apprendi to a statute increasing the
maximum range of a defendant’s original prison sentence based on a
determination that the defendant violated his supervised release); Alleyne
v. United States, 570 U.S. 99, 103 (2013) (applying Apprendi to “any fact that
increases the mandatory minimum” prison sentence); S. Union Co. v. United
States, 567 U.S. 343, 348, 350, 360 (2012) (applying Apprendi to facts necessary
to increase the amount of a criminal fine); see also State v. Brown, 209 Ariz.
200, 203 ¶ 12 (2004) (holding that Apprendi applies to aggravating factors
necessary to increase the range of prison sentence above the statutory
“presumptive” prison sentence).
¶17 Apprendi is based on a defendant’s Sixth Amendment right to
a jury trial in a criminal case. 530 U.S. at 476; id. at 500, 518 (Thomas, J.,
concurring); see also Blakely v. Washington, 542 U.S. 296, 298, 305, 308–09
(2004); S. Union, 567 U.S. at 346 (stating that Apprendi is based on the “[t]he
Sixth Amendment”); c.f. U.S. Const. amend. VI (stating that, “In all criminal
prosecutions, the accused shall” have the right to a jury trial); Ariz. Const.
art. 2, § 24 (same). Thus, in “consider[ing] the scope of the Sixth
Amendment right of jury trial,” courts only apply “the rule of Apprendi” to
“factfinding that increases [] criminal sentences, penalties, or punishments.”
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STATE OF ARIZONA V. OSCAR PENA TRUJILLO
Opinion of the Court
S. Union, 567 U.S. at 348, 350, 352 (emphasis added) (internal quotation
marks omitted); see also United States v. Ward, 448 U.S. 242, 248 (1980)
(stating that “the protections provided by the Sixth Amendment are
available only in criminal prosecutions” (internal quotation marks
omitted)).
¶18 In contrast, Apprendi does not apply to civil regulatory
consequences accompanying a criminal conviction. For example, in Young
v. State, 806 A.2d 233, 235, 250 (Md. 2002), the court held that Apprendi did
not prohibit the trial judge from determining that the victim was under
eighteen, a factual finding necessary to impose sex offender regulations,
because Maryland’s sex offender registration statutes were civil regulatory
requirements. Similarly, in Wiggins v. State, 702 S.E.2d 865, 866, 868 (Ga.
2010), the court held that the trial judge did not violate Apprendi by
determining the victim was a “minor,” a required predicate finding for
imposing sex offender registration, because the “sex offender registry
requirement is regulatory and not punitive in nature.” See also People v.
Mosley, 344 P.3d 788, 792, 798 (Cal. 2015) (same); State v. Hachmeister, 395
P.3d 833, 835, 839–40 (Kan. 2017) (same); People v. Golba, 729 N.W.2d 916,
924–25, 927 (Mich. Ct. App. 2007) (same).
III.
¶19 Thus, whether Apprendi applies in this case depends on
whether Arizona’s sex offender registration laws are civil regulatory
requirements or criminal penalties. In determining whether a statute is civil
or criminal, courts generally apply the “intent/effects test.” See, e.g., Smith,
538 U.S. at 92 (applying the intent/effects test to determine whether
Alaska’s sex offender registration statutes were civil or criminal); State v.
Noble, 171 Ariz. 171, 175 (1992) (stating this court looks first to the
intent/effects test to determine whether “the registration requirement is
punitive or regulatory”).
¶20 Under the intent/effects test, “[i]f the intention of the
legislature was to impose [a criminal] punishment, that ends the inquiry.
If, however, the intention was to enact a regulatory scheme that is civil and
nonpunitive,” a court “must further examine whether the statutory scheme
is so punitive either in purpose or effect as to negate [the legislature’s]
intention to deem it civil.” Smith, 538 U.S. at 92 (internal citation omitted)
(internal quotation marks omitted).
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STATE OF ARIZONA V. OSCAR PENA TRUJILLO
Opinion of the Court
¶21 Applying the intent/effects test in Noble, we determined that
sex offender registration was a civil regulatory requirement. 171 Ariz. at
178. Trujillo contends, however, that under the version of the statute in
effect when Noble was decided, the “potentially punitive aspects of the
statute [were] mitigated” because “outside of a few regulatory exceptions,
the information provided by sex offenders” was “kept confidential.” Id.After Noble was decided, the legislature removed the confidentiality
provision by enacting the community notification and internet registry
provisions. Thus, according to Trujillo, the current registration statutes are
now criminal penalties.
¶22 At oral argument, defense counsel stated Trujillo is registered
as a Level One Sex Offender. If true, Trujillo is only required to register as
a sex offender; he is not subject to the community notification and internet
registry provisions. See supra ¶¶ 13–15. And, because Noble held that
essentially the same registration statute was civil, that decision resolves
whether Apprendi applies to this case.
¶23 Apart from counsel’s brief reference at oral argument to
Trujillo’s sex offender level, the record is silent on this issue. Neither party
has cited any evidence or addressed Trujillo’s registration level in their
briefs, and we therefore decline to speculate whether Trujillo is registered
as a Level One, Two, or Three Sex Offender. Rather, because the parties
have fully briefed and presented the issue as if Trujillo is subject to the
community supervision and internet registry statutes, we will address
whether these provisions are civil regulatory requirements or criminal
penalties.
¶24 We further note that the parties have limited their briefing to
the registration, community notification, and internet registry provisions
contained in §§ 13-3821 through -3827. The parties have not raised, and
therefore we do not address, the sex offender residency restrictions
contained in § 13-3727.
A.
¶25 Legislative intent is the most important factor in determining
whether a statute is a civil regulatory requirement or a criminal penalty.
When “ascertain[ing] whether the legislature meant the statute to establish
‘civil’ proceedings,” courts “ordinarily defer to the legislature’s stated
intent.” Kansas v. Hendricks, 521 U.S. 346, 361 (1997); see also Falcone, 190
Ariz. at 494–95 (stating that in determining “whether the community-
7
STATE OF ARIZONA V. OSCAR PENA TRUJILLO
Opinion of the Court
notification statute is punitive . . . [t]he intent of the legislature is singularly
important although not the sole determinant”). In deferring to legislative
intent, we recognize that under the constitutional principle of separation of
powers, the legislature, not the judiciary, has the authority to prescribe
punishments for crimes. See United States v. Wiltberger, 18 U.S. 76, 95 (1820)
(“[T]he power of punishment is vested in the legislative, not in the judicial
department. It is the legislature, not the Court, which is to define a crime,
and ordain its punishment.”); see also Dowling v. United States, 473 U.S. 207,
213 (1985) (stating that courts should exercise restraint and “[d]ue respect
for the prerogatives of Congress in defining federal crimes”); Fitzgerald v.
Myers, 243 Ariz. 84, 90 ¶ 15 (2017) (holding that the legislature has the
authority to define crimes).
¶26 Here, to determine legislative intent, we examine the text and
structure of Arizona’s sex offender registration statutes. See Smith, 538 U.S.
at 92; Hendricks, 521 U.S. at 361. In Noble, this Court stated that the
registration requirement was structured to serve the nonpunitive goal of
“facilitating the location of child sex offenders by law enforcement
personnel, a purpose unrelated to punishing [offenders] for past offenses.”
171 Ariz. at 178; see also Falcone, 190 Ariz. at 495 (same); In re Maricopa Cty.
Juv. Action No. JV-132744, 188 Ariz. 180, 183 (App. 1996) (same). Thus, Noble
concluded, the legislature’s intent in enacting the registration statute was
to create a civil regulatory provision. Noble, 171 Ariz. at 178.
¶27 We agree with Noble’s conclusion that Arizona’s registration
statutes provide law enforcement with “a valuable tool” in locating sex
offenders by giving them “a current record of the identity and location of”
such offenders. 171 Ariz. at 177 (quoting Atteberry v. State, 438 P.2d 789, 791
(1968)). The community notification and internet registry provisions also
advance this purpose by making offender information “accessible” to the
public so they “can take the precautions they deem necessary” for their own
safety. Smith, 538 U.S. at 101, 102–03.
¶28 Additionally, when the legislature enacted the community
notification provision in 1996, it expressly stated its intent to create a civil
regulatory scheme. Specifically, the legislature found
that some sex offenders pose a high risk of engaging in sex
offenses after being released from imprisonment or
commitment and that protecting the public from sex
offenders is a paramount governmental interest. . . . The
release of information about sexual predators to public
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STATE OF ARIZONA V. OSCAR PENA TRUJILLO
Opinion of the Court
agencies and, under limited circumstances, to the public will
further the government’s interests of public safety . . . .
Act of May 1, 1996, 1996 Ariz. Sess. Laws ch. 315, § 20, 1682–83 (2nd Reg.
Sess.). These express findings by the legislature “evince[] a regulatory
objective to forestall future incidents of sexual abuse by notifying those who
may well encounter a potential recidivist, not to punish a past offense.”
Falcone, 190 Ariz. at 495; see also Smith, 538 U.S. at 96 (noting that the
legislature’s express findings in support of its sex offender registration act
demonstrated “the intent of the Alaska Legislature was to create a civil,
nonpunitive regime”).
¶29 We recognize, however, that codification of the registration
statutes in Title 13, the Arizona Criminal Code, arguably evinces a
legislative intent to classify these statutes as criminal. See Smith, 538 U.S. at94–95; Hendricks, 521 U.S. at 361. This fact, however, is not determinative.
For example, in Smith, the legislature placed the sex offender registration
provisions (as opposed to the notification provisions) in the criminal code.
538 U.S. at 95. Despite this fact, the Court determined that the legislature
intended to enact a civil scheme because the criminal code “contains many
provisions that do not involve criminal punishment,” and that “[a]lthough
some of these provisions relate to criminal administration, they are not in
themselves punitive.” Id.; see also United States v. One Assortment of 89
Firearms, 465 U.S. 354, 364 (1984) (stating that despite placement of
forfeiture provisions in the criminal code, Congress intended those
provisions to be civil).
¶30 We conclude that, despite placement of the registration
statutes in the criminal code, the legislature intended to create a civil
regulatory scheme. See State v. Henry, 224 Ariz. 164, 171 ¶ 22 (App. 2010)
(noting that Arizona’s sex offender registration system is “regulatory
despite its codification in title 13, A.R.S., our criminal code”). As in Smith,
Arizona’s criminal code contains both civil regulatory provisions and
criminal statutes. See, e.g., §§ 13-4301 to -4315 (civil forfeiture).
Additionally, we agree with Noble’s conclusion that the structure of the
registration scheme is regulatory, not punitive. Finally, we place great
weight on the legislature’s expression of a civil regulatory purpose in
enacting the 1996 community supervision laws.
¶31 Finally, we note that while registration violations may be
prosecuted as separate crimes, this does not make Arizona’s registration
scheme punitive. In Noble, we held that sex offender registration was civil
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STATE OF ARIZONA V. OSCAR PENA TRUJILLO
Opinion of the Court
despite the fact it was enforced solely through criminal prosecution and
registration violations were designated as felony offenses. 171 Ariz. at 178.
Likewise, in Smith, the Supreme Court determined that the legislature
intended to create a civil scheme despite the fact offenders who failed to
comply with the act were “subject to criminal prosecution.” 538 U.S. at 90.
¶32 Accordingly, we conclude that the legislature’s purpose in
enacting Arizona’s sex offender registration statutes was to create a civil
regulatory scheme.
B.
¶33 Based on the legislature’s intent to create a civil regulatory
scheme, Trujillo faces a “heavy burden” in seeking to reclassify the
registration statutes as punitive. Hendricks, 521 U.S. at 361. To satisfy this
burden, Trujillo must provide “the clearest proof” that the registration
scheme is “so punitive either in purpose or effect” that it negates the
legislature’s intent to classify these statutes as “civil.” Id. (quoting United
States v. Ward, 448 U.S. 242, 248–49 (1980)); see also Falcone, 190 Ariz. at 496(same).
¶34 To determine the effects of Arizona’s registration statute, we
apply the same factors used in Smith to analyze the effects of Alaska’s
registration scheme. These factors examine whether the registration
statutes: (1) have been historically regarded as punishment; (2) impose an
affirmative restraint or disability; (3) promote the traditional goals of
punishment; (4) have a “rational connection to a nonpunitive purpose”; and
(5) are excessive with respect to their nonpunitive purpose. Smith, 538 U.S.
at 97.
1. Historically Regarded as Punishment
¶35 In Smith, the Supreme Court concluded that sex offender
registration laws have not been historically regarded as punishment. Id.The Court noted that “sex offender registration and notification statutes are
of fairly recent origin,” suggesting they do “not involve a traditional means
of punishing.” Id. (citation omitted) (internal quotation marks omitted).
The Court also stated that, although registering as a sex offender “may
cause adverse consequences for the convicted defendant, running from
mild personal embarrassment to social ostracism[,] [i]n contrast to the
colonial shaming punishments, . . . the State does not make the publicity
and the resulting stigma an integral part of the objective of the regulatory
scheme.” Id. at 99. To the contrary, the Court observed that any stigma
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STATE OF ARIZONA V. OSCAR PENA TRUJILLO
Opinion of the Court
caused by registering as a sex offender “results not from public display for
ridicule and shaming but from the dissemination of accurate information
about a criminal record.” Id. at 98. Further, the Court stated that most of
the registration information “is already public,” and that our system of
criminal justice, including “public indictment, public trial, and public
imposition of sentence,” necessarily entails public dissemination of truthful
information about criminal defendants. Id. at 98–99.
¶36 Smith also concluded that “[t]he fact that Alaska posts the
information on the Internet does not alter our conclusion.” Id. at 99. The
Court noted that under Alaska’s system, although the registration statutes
did not specify how an offender’s information was to be made available to
the public, the state chose “to make most of the nonconfidential information
available on the Internet.” Id. at 91. Thus, the public was allowed access to
a wide variety of information, including the offender’s “name, aliases,
address, photograph, physical description . . . license [and] identification
numbers of motor vehicles, place of employment, date of birth, crime for
which convicted, date of conviction, place and court of conviction, length
and conditions of sentence, and a statement as to whether the offender . . . is
in compliance with [the update] requirements . . . or cannot be located.” Id.(quoting Alaska Stat. § 18.65.087(b) (2000)).
¶37 Analyzing the effect of public access to this information on the
internet, Smith acknowledged that “the geographic reach of the Internet is
greater than anything which could have been designed in colonial times.”
Id. at 99. However, it reasoned that “[t]hese facts do not render Internet
notification punitive,” because “[t]he purpose and the principal effect of
notification are to inform the public for its own safety, not to humiliate the
offender.” Id. Thus, the Court concluded, “[w]idespread public access is
necessary for the efficacy of the scheme, and the attendant humiliation is
but a collateral consequence of a valid regulation.” Id.
¶38 We recognize that in Noble, in contrast to Smith, we
determined that sex offender registration laws have been traditionally
viewed as criminal punishment. Noble, 171 Ariz. at 176–77. But see Henry,
224 Ariz. at 170 ¶ 20 (“[W]e regard Noble’s finding that registration has been
traditionally viewed as a form of punishment . . . as having been
undermined by Smith.”). Nonetheless, we agree with Smith and disapprove
Noble’s conclusion on this point. Sex offender registration, including
community notification and public access to the internet registry, is of
recent origin, and serves the purpose of disseminating truthful information
to the public for its own safety. Moreover, much of the information
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STATE OF ARIZONA V. OSCAR PENA TRUJILLO
Opinion of the Court
disseminated and contained in the registry is already public. For example,
an offender’s criminal conviction is a public record. State v. King, 213 Ariz.
632, 638 ¶ 24 (App. 2006). An offender’s conviction and identifying
information are available to potential employers and other persons and
organizations unaffiliated with law enforcement. See A.R.S. § 41-1750(A),
(G); Falcone, 190 Ariz. at 496 (“In defined circumstances, potential
employers and government agencies not involved in law-enforcement . . .
have access to the offender’s history,” including “not only the nature of the
conviction but identifying information.”). And, of course, an offender’s
pretrial proceedings, trial and sentencing are all public proceedings. See
U.S. Const. amend. VI (right to a public jury trial in a criminal case); Ariz.
Const. art. 2, § 11 (guarantee of public access to all court proceedings); Id.
§ 24 (right to a public jury trial); A.R.S. § 13-607(B) (judgment and
sentencing must be done in open court for all criminal cases).
¶39 Accordingly, we conclude that because sex offender
registration laws have not been historically regarded as punishment, this
factor indicates that the effect of Arizona’s registration statutes is regulatory
and not punitive.
2. Affirmative Disability or Restraint
¶40 In Noble, this Court held that Arizona’s registration statutes
do not “affirmatively inhibit or restrain an offender’s movement or
activities.” Noble, 171 Ariz. at 176 (citation omitted) (internal quotation
marks omitted). Trujillo argues, however, that based on the community
supervision and internet registry provisions that have been added to the
registration scheme since Noble, the current provisions place an affirmative
disability and restraint on offenders. We disagree.
¶41 In Smith, the Supreme Court concluded that Alaska’s
registration statutes did not place an affirmative disability or restraint on
offenders. As an initial matter, the Court noted that the registration
provisions placed no physical limitations or mandatory conditions on
offenders. Smith, 538 U.S. at 100–01. Additionally, the statutes did not
require offenders to report to a supervising officer, such as a parole or
probation officer. Id. at 101. Rather, “offenders . . . are free to move where
they wish and to live and work as other citizens,” including changing jobs
or residences, without the approval of a parole or probation officer. Id.¶42 In contrast, in State v. Payan, 765 N.W.2d 192, 203 (Neb. 2009),
the Nebraska Supreme Court concluded that the restraints imposed by
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Opinion of the Court
Nebraska’s sex offender community supervision statutes imposed a
criminal penalty. These provisions included “restrictions on place of
residence; required reporting to a parole officer; and submission to medical,
psychological, psychiatric, or other treatment.” Id. In addition, offenders
were “subject to drug and alcohol testing, restrictions on employment and
leisure activities, and polygraph examinations.” Id. Thus, the court
concluded, the community supervision statutes “involve[] affirmative
restraints and disabilities similar to and arguably greater than traditional
parole.” Id.¶43 Arizona’s registration scheme is more analogous to Alaska’s
scheme than Nebraska’s. Like Alaska’s registration scheme, offenders are
not physically restrained in any manner, nor are their activities restricted.
Offenders also have no mandatory conditions, nor do they have to report
to a probation or parole officer. Additionally, Arizona’s registration
provisions place no restrictions on an offender’s choice of residence or
employment.
¶44 By comparison, Arizona’s registration scheme is far less
restrictive than the civil commitment scheme addressed by the Supreme
Court in Hendricks. There, the Court examined Kansas’ Sexually Violent
Predator Act, which established civil commitment proceedings for any
person who had “been convicted of or charged with a sexually violent
offense and who suffers from a mental abnormality or personality disorder
which makes the person likely to engage in the predatory acts of sexual
violence.” 521 U.S. at 350, 352 (quoting Kan. Stat. Ann. § 59-29a02(a) (1994)).
Although the maximum period of commitment for any proceeding was one
year, if the state sought to continue detention beyond that time, a person
could be confined indefinitely. Id. at 364.
¶45 Despite the potentially indefinite period of restraint, the
Court concluded that the scheme was civil. Id. at 368–69. It 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 omitted) (internal quotation marks
omitted). Rather, “[t]he State may take measures to restrict the freedom of
the dangerously mentally ill” because this promotes “a legitimate
nonpunitive governmental objective.” Id. The Court further stated 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.
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Opinion of the Court
¶46 We recognize that public dissemination of an offender’s
information may have a negative impact on where the offender lives and
works, and that the community notification and internet registry provisions
increase the number of people who have access to this information.
However, as the Supreme Court noted in Smith, although public access to
registration information “may have a lasting and painful impact on the
convicted sex offender, these consequences flow not from the Act’s
registration and dissemination provisions, but from the fact of conviction,
already a matter of public record.” 538 U.S. at 101 (emphasis added).
Likewise, here, the registration provisions do not label the offender “as
more culpable than he was before.” Falcone, 190 Ariz. at 497. Rather, the
primary negative impact on offenders, including restrictions on their
employment and housing, stems from their convictions, not their
registrations. And, as Smith observed, because much of the “information
about the individual’s conviction [is] already in the public domain,” this
enables “[l]andlords and employers” to “conduct background checks on the
criminal records of prospective employees or tenants even with the
[registration] Act not in force.” 538 U.S. at 100; see also supra, ¶ 38 (noting
that criminal convictions are public records accessible to employers and
other private entities).
¶47 Trujillo argues, however, that Arizona’s registration statutes
are more restrictive than those addressed in Smith. Specifically, he argues
that Arizona’s statutes require offenders to report and update their
information in person with the sheriff’s department. In contrast, Alaska’s
registration statutes allowed offenders to update and verify their
information in writing, without having to “report” in person. Smith, 538
U.S. at 101.
¶48 We are not persuaded by Trujillo’s argument. To be clear, in
Arizona, not all changes in offender information must be made in person.
For example, changes regarding an offender’s online identifier can be made
in writing. § 13-3822(C). More importantly, while some information must
be provided to the sheriff’s department in person, offenders are not
required to report to a supervising probation or parole officer.
Additionally, requiring offenders to provide their information in person
does not limit an offender’s daily activities, nor does it entail obtaining
approval from the sheriff in choosing where to live or work.
¶49 We also note that the registration requirements in Smith were,
in some ways, more restrictive than Arizona’s. Alaska’s scheme required
offenders to verify their information four times a year, while Arizona’s only
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Opinion of the Court
requires offenders to verify their information annually. See Smith, 538 U.S.
at 117 (Ginsburg, J. dissenting); compare Alaska Stat. Ann. §§ 12.63.010(d)(2),
12.63.020(a)(1) (requiring sex offenders to verify information quarterly),
with A.R.S. § 13-3821(J) (requiring sex offenders to verify information
annually). Additionally, Alaska’s registration scheme required offenders
to report their employment and vehicle information. Smith, 538 U.S. at 90.
Arizona offenders, however, are not required to report this information. See
§ 13-3821(N) (stating only that offenders must report information
concerning their employment at a postsecondary educational institution).
¶50 As a result, we conclude that this factor also indicates that the
effect of Arizona’s registration statutes is regulatory.
3. Promotes Traditional Aims of Criminal Punishment
¶51 In Smith, the state conceded that Alaska’s registration act
might, consistent with the purpose of the criminal justice system, have a
deterrent effect on offenders committing future crimes. 538 U.S. at 102. We
reached a similar conclusion in Noble. 171 Ariz. at 177 (stating that
Arizona’s registration statutes promote the “traditional deterrent function
of punishment, the notion being that a convicted sex offender is less likely
to commit a subsequent offense if his whereabouts are easily ascertained by
law enforcement officials”).
¶52 However, the fact that Arizona’s registration statutes have a
deterrent effect does not, by itself, transform them into criminal penalties.
Deterrence may also serve a civil regulatory goal. Falcone, 190 Ariz. at 497.
As Smith noted, simply because a registration scheme may have a deterrent
effect “proves too much” because “[a]ny number of governmental
programs might deter crime without imposing punishment.” 538 U.S. at
102. Indeed, as Smith observed, if the “mere presence of a deterrent
purpose” transforms civil regulatory requirements into criminal penalties,
then the “[g]overnment’s ability to engage in effective regulation” would
be severely undermined. Id. (citation omitted) (internal quotation marks
omitted).
¶53 As a result, although this factor indicates that Arizona’s
registration laws may have a punitive effect, it “does not compel the
conclusion that the [scheme] is impermissibly punitive.” Falcone, 190 Ariz.
at 497; see also Smith, 538 U.S. at 94 (“[E]ven if the objective of the
[registration] Act is consistent with the purposes of the Alaska criminal
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Opinion of the Court
justice system, the State’s pursuit of it in a regulatory scheme does not make
the objective punitive.”).
¶54 Trujillo also argues that because offenders may suffer stigma
from the public dissemination of their information, Arizona’s registration
statutes are retributive, and therefore punitive. We disagree. Stigma and
shame are not unique to criminal punishment; civil remedial sanctions may
also harm a person’s reputation. Falcone, 190 Ariz. at 497. And, as we
conclude below, see infra ¶ 55, the primary effect of these laws is not to
punish, but to advance the important regulatory purpose of disseminating
truthful information to the public for its own safety. See Smith, 538 U.S. at
98 (“Our system does not treat dissemination of truthful information in
furtherance of a legitimate governmental objective as punishment.”).
4. Rational Connection to a Nonpunitive Purpose
¶55 Arizona’s registration scheme is rationally connected to the
civil regulatory purpose of protecting the community from potentially
dangerous sex offenders. See id. at 93 (stating that protecting the
community by employing restrictive measures against sex offenders
deemed dangerous to the community is a legitimate civil, regulatory
purpose); see also Hendricks, 521 U.S. at 363 (stating that imposing restrictive
measures on sex offenders determined to be dangerous to the community
is “a legitimate nonpunitive governmental objective and has been
historically so regarded”). Specifically, Arizona’s registration statutes
provide law enforcement with “a valuable tool” in locating sex offenders
by giving them “a current record of the identity and location of” such
offenders. Noble, 171 Ariz. at 177 (citation omitted) (internal quotation
marks omitted). Additionally, the community notification and internet
registry provisions make offender information “accessible” to the public so
that they “can take the precautions they deem necessary” for their own
safety. Smith, 538 U.S. at 101, 102–03.
5. Excessive in Relation to Regulatory Purpose
¶56 In determining whether a civil scheme is excessive in relation
to its regulatory purpose, we note that “[a] statute is not deemed punitive
simply because it lacks a close or perfect fit with the nonpunitive aims it
seeks to advance.” Id. at 103. Rather, “[t]he excessiveness inquiry . . . is not
an exercise in determining whether the legislature has made the best choice
possible to address the problem it seeks to remedy. The question is whether
16
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Opinion of the Court
the regulatory means chosen are reasonable in light of the nonpunitive
objective.” Id. at 105.
¶57 Arizona’s registration scheme is reasonably related to its
regulatory purpose because “our legislature has taken steps to tailor the
statutes to serve more precisely” its civil regulatory purpose. Henry, 224
Ariz. at 171 ¶ 23. Specifically, Arizona’s registration requirements are
limited to offenders who are convicted of serious sex offenses involving
sexual assault, minor victims, and repetitive sex offenders. See § 13-
3821(A)(1)–(22); see also Smith, 538 U.S. at 103–04 (“Alaska could conclude
that a conviction for a sex offense provides evidence of substantial risk of
recidivism,” and, as a result, “[t]he State’s determination to legislate with
respect to convicted sex offenders as a class, rather than require individual
determination of their dangerousness, does not make the statute a
punishment.”); Hendricks, 521 U.S. at 368–69 (holding that involuntary
commitment for sexually violent offenders was regulatory, and not
punitive, where the State, among other things, “disavowed any punitive
intent” and “limited confinement to a small segment of particularly
dangerous individuals” (internal quotation marks omitted)).
¶58 Additionally, Arizona’s community notification provisions
only apply to offenders who, based on a risk assessment, have been
identified as high-risk, Level Two and Level Three Offenders. § 13-
3825(C)(1)–(2); see also Falcone, 190 Ariz. at 499 (holding that the community
notification provisions were not excessive because “the
community-notification statute is sensitive concerning the varying degrees
of risk presented by different offenders by tailoring the dissemination of
information to the jeopardy posed”). Similarly, public access to the internet
registry is limited to information about offenders who have been assessed
as Level Two and Three Offenders, as well as offenders convicted of a small
number of serious sex offenses. § 13-3827(A)(1)–(2); see also Henry, 224 Ariz.
at 171 ¶ 23 (stating that to serve the “nonpunitive ends” of the registration
statutes, the legislature has limited “mandatory community and website
notification” to those “offenders deemed to pose a heightened risk to the
community”).
¶59 The legislature has taken other steps to tailor Arizona’s
registration scheme to its civil regulatory purpose. For instance,
registration terminates for juvenile offenders when they turn twenty-five.
§ 13-3821(F); see also § 13-3821(G) (duty to register may be terminated upon
successful completion of probation for a person convicted of an offense
when they were under eighteen years of age). Similarly, a defendant who
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Opinion of the Court
was under twenty-two at the time they committed certain specified offenses
may petition to terminate registration. § 13-3821(H); § -3826(A); § -923.
¶60 Finally, Arizona’s lifetime registration requirement does not
“affix culpability for prior criminal conduct,” but is based on assessing the
future dangerousness of an offender for the purpose of protecting the
community. See Hendricks, 521 U.S. at 362; Falcone, 190 Ariz. at 497 (stating
that under Arizona’s registration statutes, the “offender is not labeled as
more culpable than he was before”). Thus, Arizona’s lifetime registration
requirement, like the life-long requirement addressed in Smith, is
“reasonably related to the danger of recidivism,” and therefore “is
consistent with the regulatory objective” of regulating the offender’s future
conduct. See Smith, 538 U.S. at 90, 98, 102.
¶61 In short, we agree with Smith’s conclusion that, “[g]iven the
general mobility of our population, for Alaska to make its registry system
available and easily accessible throughout the State was not so excessive a
regulatory requirement as to become a punishment.” Id. at 105. The same
reasoning applies here. See id. at 90–91, 104–06.
¶62 Trujillo argues, however, that Smith is distinguishable from
this case because it involved a passive notification system requiring
individuals to “seek access to the information,” where, in contrast,
Arizona’s notification provision requires law enforcement to affirmatively
disseminate offender information to the public. See id. at 105. Thus, he
claims that Arizona’s active dissemination of offender information renders
our registration scheme punitive.
¶63 We disagree. As noted in Smith, “[w]idespread public access
is necessary for the efficacy” of a registration scheme. Id. at 99. Here, the
affirmative efforts of law enforcement to disseminate truthful information
about high-risk offenders are a reasonable, effective means of promoting
the registration scheme’s civil regulatory purpose.
¶64 Weighing the above factors, we conclude that the effects of
Arizona’s sex offender registration statutes do not negate the legislature’s
intent to create a civil regulatory scheme. Our conclusion is buttressed by
the fact that Smith, which examined a registration scheme similar to
Arizona’s, concluded that “the Act’s effects leads to the determination that
respondents cannot show, much less by the clearest proof, that the effects
of the law negate Alaska’s intention to establish a civil regulatory scheme.”
Id. at 91, 105.
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Opinion of the Court
IV.
¶65 Trujillo and our dissenting colleague assert that in
determining whether Apprendi applies in this case, we should use the
“serious offense” framework set forth in Blanton v. City of N. Las Vegas, Nev.,
489 U.S. 538 (1989), rather than the intent/effects test. To support their
argument, Trujillo and the dissent employ a novel construction of Southern
Union, Blanton, and Fushek. First, they claim that Blanton requires a jury trial
for a “severe” or “serious penalty.” Second, they construe Fushek as holding
that because sex offender registration is a “serious/severe penalty,”
Apprendi requires every fact making a person eligible for registration to be
submitted to a jury. Third, they contend that Southern Union expanded the
scope of Apprendi to encompass all “serious/severe penalties,” including
sex offender registration. However, none of these cases supports their
position.
¶66 In Blanton, the Supreme Court held that the Sixth
Amendment’s jury trial guarantee applies to “serious” offenses, but not
“petty offenses.” 489 U.S. at 543–44. Under Blanton’s framework, an offense
is presumed to be serious, therefore entitling the defendant to a jury trial,
“whenever the offense . . . carries a maximum . . . prison term of greater
than six months.” Id. at 542. Conversely, an offense is presumed to be
“petty,” and therefore no right to a jury trial arises, if it carries a jail term of
less than six months. Id. at 543.
¶67 Blanton further held that a petty offense carrying a jail term of
less than six months may be classified as a serious offense if, in addition to
the maximum jail term, there are “additional statutory penalties” that “are
so severe . . . they clearly reflect a legislative determination” to classify the
offense as serious. Id. These “additional statutory penalties” include both
the civil regulatory requirements and criminal penalties that accompany a
conviction. Id. at 544–45 & n.9 (considering both civil and criminal
“penalties” in determining whether the underlying offense was “serious”);
see also Bado v. United States, 186 A.3d 1243, 1252, 1254 (D.C. 2018) (rejecting
the government’s argument that because “removal” was a “civil sanction,”
it “should not be considered in a Blanton analysis”); Derendal v. Griffith, 209
Ariz. 416, 425–26 ¶ 40 & n.9 (2005) (considering civil consequence of loss of
a driver’s license in determining whether underlying offense was serious);
Buccellato v. Morgan, 220 Ariz. 120, 125 ¶ 13 n.5 (App. 2008) (stating that a
court must consider civil administrative consequences accompanying a
criminal conviction, such as revocation of a business permit, in determining
whether an offense is serious).
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Opinion of the Court
¶68 Blanton does not, as Trujillo and the dissent contend, require
a jury trial for “serious/severe penalties.” To the contrary, Blanton only
addresses the right to a jury trial for an underlying offense; it says nothing
about whether a defendant has the right to a jury to determine facts
triggering a civil regulatory requirement or a criminal penalty.
¶69 Blanton also does not provide a useful framework for this
case. The issue before us is whether, for the purpose of applying Apprendi,
Arizona’s registration statutes are civil or criminal. Blanton provides no
assistance in resolving this issue because Blanton focuses “on an array of
penalties without pausing to determine whether they are punitive or
regulatory.” See Blanton, 489 U.S. at 543, 544–45 & n.9; Bado, 186 A.3d at
1252–53 (stating that Blanton “did not parse whether the [additional]
penalties were penal or civil in nature and took care to consider the relative
burdens imposed by each of several penalties that were civil in nature.”
(internal quotation marks omitted)).
¶70 Trujillo and the dissent also misconstrue Fushek. In Fushek,
the defendant was charged with several misdemeanor offenses carrying jail
terms of 30 to 180 days. 218 Ariz. at 287–89 ¶¶ 2–3, 10 & n.4. The state
alleged that the offenses were sexually motivated pursuant to § 13-118. Id.
at 287 ¶ 2. Based on that allegation, the defendant was eligible, at the
discretion of the court, for lifetime sex offender registration. Id.; see also § 13-
3821(C).
¶71 Because each offense was “a misdemeanor and punishable by
no more than six months incarceration,” the charges were “presumptively
not jury-trial eligible.” Fushek, 218 Ariz. at 288–89 ¶ 10 (citation and internal
quotation marks omitted). However, applying Blanton’s framework, the
court examined whether this presumption was rebutted, because, in
addition to a jail term, the defendant was required to register as a sex
offender for life. Id. at 289–90 ¶¶ 11, 17. Ultimately, the court concluded
that the maximum jail term, in combination with the “grave consequence”
of lifetime registration, was a “rare situation” reflecting the legislature’s
determination that the offense was a serious offense. Id. at 290–91 ¶¶ 17, 22
(citations omitted) (internal quotation marks omitted).
¶72 Trujillo asserts that Fushek “explicitly held that the fact that
makes a person eligible for sex offender registration must be tried to a jury.”
Fushek did no such thing. Fushek held that because the underlying offenses
were serious, the defendant was entitled to a jury trial on those offenses.
However, Fushek neither addressed nor decided whether sexual motivation
20
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Opinion of the Court
(the factual determination triggering registration eligibility) must be tried
to a jury. Indeed, that issue was not before the court because § 13-118(B),
by its terms, requires sexual motivation to be submitted to the jury. Id. at
287, 292 ¶¶ 2, 28.
¶73 Our dissenting colleague and Trujillo also claim that in
Fushek, we “rejected” the intent/effects test, and held that Blanton provides
the proper framework for resolving whether the right to a jury is
“implicated.” See Infra ¶ 92. This statement proves too much. Fushek
applied Blanton because the defendant’s right to a jury trial was contingent
on whether the underlying offenses were serious or petty. 218 Ariz. at 290–
91 ¶¶ 19, 22. In that context, the intent/effects test was not relevant. Id. In
contrast, Blanton is not relevant here because it is undisputed that the
offense of sexual abuse (a felony) requires a jury trial. Conversely, the
intent/effects test is the proper test to apply in this case because
determining whether Apprendi applies depends on whether sex offender
registration is regulatory or punitive.
¶74 Finally, Trujillo claims that Fushek “implicitly” determined
that registration was a criminal punishment. Fushek expressly does not reach
this issue. See id. at 290 ¶ 19 (“The issue before us is not whether sex
offender registration is criminal punishment for ex post facto
purposes . . .”).
¶75 Trujillo and the dissent’s reliance on Southern Union is also
misplaced. In Southern Union, the defendant, a corporation, was indicted
for storing mercury without a permit in violation of 42 U.S.C.
§ 6928(d)(2)(A). 567 U.S at 346. That statute, codified under a heading
entitled “criminal penalties,” imposed a criminal fine of $50,000/day for
each violation, as well as up to five years in prison. 42 U.S.C. § 6928(d)(7);
567 U.S. at 347. The jury returned a guilty verdict and, based on the
government’s allegation that the defendant illegally stored the mercury for
762 days, the court calculated the amount of the fine to be $38.1 million (762
days x $50,000/day). 567 U.S. at 347. The defendant challenged the court’s
authority to calculate the fine, arguing that pursuant to Apprendi, the
amount of the fine was a jury question. Id. The Supreme Court agreed,
concluding that criminal fines are subject to Apprendi. Id. at 350, 360.
¶76 Southern Union did not, as Trujillo contends, “unify” Blanton
and Apprendi. In fact, Southern Union did not apply Blanton’s framework at
all. There was no need to do so, given the fact the underlying charge was a
felony, making the jury trial requirement uncontested. See S. Union 567 U.S.
21STATE OF ARIZONA V. OSCAR PENA TRUJILLO
Opinion of the Court
at 352. Far from “unifying” Apprendi and Blanton, the Court expressly
stated that Blanton and Apprendi address two different questions, and that
seeking to apply Blanton’s framework to Apprendi, “asks the wrong
question.” Id. at 351–52.
¶77 Additionally, like Blanton, Southern Union does not provide
any useful guidance in resolving whether Apprendi applies here.
Specifically, the application of Apprendi turns on whether the registration is
civil or criminal. But that was not an issue in Southern Union, because it was
undisputed that the subject fines were criminal penalties. Id. at 350 (stating
that defendant’s fines “undeniably” constitute “criminal sentence[s],
penalties, [and] punishment[s]” (internal quotation marks omitted)); see also
State v. Far W. Water & Sewer Inc., 224 Ariz. 173, 201 ¶ 111 n.14 (App. 2010)
(stating that in Arizona, it is well-established that a fine is a criminal
penalty); State v. Pitts, 26 Ariz. App. 390, 391 (1976) (same).
¶78 Finally, Trujillo and the dissent argue that the intent/effects
test does not apply in the context of the Sixth Amendment. This assertion
is apparently based on Smith and Noble, where the courts applied the test to
determine whether retroactive application of registration laws violated the
constitutional bar on ex post facto laws. See Smith, 538 U.S. at 91; Noble, 171
Ariz. at 173–74. Because the prohibition against ex post facto laws only
applies to criminal laws, Smith and Noble used the intent/effects test to
determine whether the subject registration laws were civil or criminal. See
Galvan v. Press, 347 U.S. 522, 531 & n.4 (1954) (stating that the ex post facto
bar only applies to criminal laws, not civil regulatory laws); Calder v. Bull, 3
U.S. 386, 390 (1798) (same); id. at 399 (Iredell, J., concurring) (same).
¶79 But our dissenting colleague is wrong to conclude that simply
because Smith and Noble applied the intent/effects test in the ex post facto
context, the test does not apply to other constitutional contexts, including
the Sixth Amendment. To the contrary, the test has its “earlier origins in
cases under the Sixth and Eighth Amendments,” and has been applied “in
various constitutional contexts.” Smith, 538 U.S. at 97; see also Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168–69 nn.22–29 (1963) (listing cases using
the intent/effects test in various constitutional contexts).
¶80 Thus, for example, the Supreme Court applied the
intent/effects test in the Sixth Amendment context in Mendoza-Martinez.
There, the Court addressed a civil statutory scheme divesting a person of
citizenship for leaving the country to evade military service. 372 U.S. at 146.
The “basic question” before the Court was whether these statutes were
22
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Opinion of the Court
“essentially penal in character, and consequently have deprived the
appellees of their citizenship . . . without according them the rights
guaranteed by the Fifth and Sixth Amendments, including notice,
confrontation, compulsory process for obtaining witnesses, trial by jury, and
assistance of counsel.” Id. at 164 (emphasis added). To resolve this
question, the Courts used the “tests traditionally applied to determine
whether an Act of Congress is penal or regulatory in character”—namely,
the intent/effects test. Id. at 168–69.
¶81 Applying this test, Mendoza-Martinez held that the statutory
scheme was criminal, not civil. Id. at 164, 168–70. In reaching this holding,
the Court stated that the statutes were “invalid” because Congress
“employed the sanction of deprivation of nationality as a punishment . . .
without affording the procedural safeguards guaranteed by the Fifth and
Sixth Amendments.” Id. at 165–66. Specifically, the statutory scheme
deprived citizens of several constitutional rights, including the right to “be
tried by an impartial jury.” Id. at 166 (citation omitted) (internal quotation
marks omitted). The Court concluded that the “Fifth and Sixth
Amendments mandate” that statutes imposing forfeiture of citizenship
“cannot be imposed without a prior criminal trial and all its incidents,
including indictment, notice, confrontation, jury trial, assistance of counsel,
and compulsory process for obtaining witnesses. If the sanction these
[statutes] impose is punishment, and it plainly is, the procedural safeguards
required as incidents of a criminal prosecution are lacking.” Id. at 167.
¶82 In United States v. Ward, the Court addressed a statute
imposing fines for illegally discharging oil into navigable waters. 448 U.S.
242, 245 (1980). The question before the Court was “whether Congress,
despite its manifest intention to establish a civil, remedial mechanism,
nevertheless provided for sanctions so punitive as to transfor[m] what was
clearly intended as a civil remedy into a criminal penalty.” Id. 448 U.S. at
249 (citation and internal quotation marks omitted). Applying the
intent/effects test, the Court concluded that the statute was “clearly not
‘criminal’ enough to trigger the protections of the Sixth Amendment, the
Double Jeopardy Clause of the Fifth Amendment, or the other procedural
guarantees normally associated with criminal prosecutions . . . .” Id. at 248–
51, 253–54.
¶83 As these cases demonstrate, the Supreme Court has
consistently applied the intent/effects test to determine whether
constitutional criminal protections, including the Sixth Amendment, apply
to a statute. See Hudson v. United States, 522 U.S. 93, 96, 99–105 (1997)
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Opinion of the Court
(reaffirming the “established rule” that the intent/effects test is used to
determine whether constitutional criminal protections apply to a statute);
id. at 112–13 (Souter, J., concurring) (stating that “there is obvious sense in
employing common criteria to point up the criminal nature of a statute for
purposes of both the Fifth and Sixth Amendments,” and “once it is
understood that a legislature intended a penalty to be treated as civil in
character, that penalty may be held criminal for Fifth Amendment purposes
(and, for like reasons, under the Sixth Amendment) only on the “clearest
proof” of its essentially criminal proportions.”); Flemming v. Nestor, 363 U.S.
603, 612–13, 617–20 (1960) (stating that whether certain constitutional
protections apply to a statute, including the Sixth Amendment, depends
upon whether the intent and effects of the statute are criminal or civil); Lipke
v. Lederer, 259 U.S. 557, 559, 562 (1922) (stating that simply because the title
of a statute categorizes it as civil, if the “function” and effect of the statute
is criminal, then depriving a person subject to the statute of an
“information, indictment, or trial by jury, [is] contrary to the federal
Constitution”).
¶84 In short, the dissent is wrong. The intent/effects test is used
in all contexts to determine whether constitutional criminal protections
apply to a statute, including the Sixth Amendment’s guarantee of a jury
trial. See, e.g., Worthy v. City of Phenix City, Ala., 930 F.3d 1206, 1217–22 (11th
Cir. 2019) (applying the intent/effects where defendants alleged that an
“ordinance imposed a criminal penalty without providing sufficient Fifth
and Sixth Amendment protections”; the court held, after addressing the
“threshold question” of whether the “ordinance provides for civil sanctions
or criminal punishment,” that because these protections are only
guaranteed during a criminal prosecution, and the ordinance imposes a
civil sanction, “the procedures prescribed by the ordinance are
constitutionally sufficient.”).
¶85 Accordingly, we reject the argument of our dissenting
colleague and Trujillo that the “serious offense” framework set forth in
Blanton and Fushek applies in this case. Blanton and Fushek do not, as the
dissent and Trujillo contend, address Apprendi, nor do they justify
expanding the Sixth Amendment right to a jury trial in a criminal case to
include civil regulatory requirements.
CONCLUSION
¶86 Because Arizona’s sex offender registration statutes are civil
regulatory requirements, Apprendi does not apply to factual findings that
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Opinion of the Court
are necessary to impose registration. We therefore hold that the trial judge
did not violate Apprendi by determining that, pursuant to § 13-3821(A)(3),
M.A.C. was under eighteen. For these reasons, we affirm the trial court’s
judgment, and vacate the court of appeals’ opinion.
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STATE OF ARIZONA V. OSCAR PENA TRUJILLO
JUSTICE BOLICK, Dissenting
BOLICK, J., dissenting:
¶87 The definitive question before us in deciding whether Trujillo
had the right to a jury finding of the victim’s age is whether the legislature,
by virtue of the penalties it assigned to the conduct, considered the
underlying offense serious. See, e.g., Blanton v. City of N. Las Vegas, Nev., 489
U.S. 538, 541 (1989); see also Derendal v. Griffith, 209 Ariz. 416, 423 ¶ 26 (2005)
(adopting a “modified version of the Blanton test” that “preserves the right
to jury trial for serious offenses”). As there can be no doubt that the
penalties imposed by the legislature make clear it considers sexual abuse a
serious crime, I respectfully dissent from the majority’s holding that the
jury finding is not constitutionally required.
¶88 The majority errs by failing to apply the framework the
United States Supreme Court and this Court have consistently applied to
the right to jury trial and instead choosing to apply one that pertains to
other contexts, particularly ex post facto laws. Which analytical framework
we apply matters greatly for they lead to different outcomes. By applying
the wrong framework, the majority diminishes the right to jury trial
protected by both the United States and Arizona Constitutions. U.S. Const.
amend. VI; Ariz. Const. art. 2, § 23.2
¶89 The two contexts are materially different. The Ex Post Facto
Clause of Article 1, Section 9 of the U.S. Constitution is a limitation on
legislative power. See, e.g., Rogers v. Tennessee, 532 U.S. 451, 455–56 (2001).
Specifically, it generally prohibits imposition of retroactive criminal
punishments. Calder v. Bull, 3 U.S. 386, 389–90 (1798). Given that purpose,
in determining whether application of a particular statutory scheme
violates the Ex Post Facto Clause, the proper inquiry is whether the scheme
imposes a retroactive punishment, which involves determining whether
the penalty is punitive or regulatory. See Smith v. Doe, 538 U.S. 84, 92 (2003);
accord State v. Noble, 171 Ariz. 171, 175 (1992).
¶90 By contrast, the right to jury trial is a fundamental
constitutional right that applies in all criminal prosecutions. Distinct from
the Ex Post Facto Clause, which determines whether a punishment imposed
2 Article 2, section 23 of the Arizona Constitution states in pertinent part:
“The right of trial by jury shall remain inviolate.” Because Trujillo did not
meaningfully develop a distinct argument under this provision, the Court
is correct not to consider it.
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STATE OF ARIZONA V. OSCAR PENA TRUJILLO
JUSTICE BOLICK, Dissenting
by the legislature is permissible, the Sixth Amendment dictates the rules by
which a defendant’s guilt or innocence is determined. Thus, the
appropriate constitutional analysis differs. To determine whether the right
to jury trial is implicated, the courts inquire not whether the penalty is
punitive or regulatory, but whether the penalty imposed reflects a
legislative determination that the underlying offense is serious. See, e.g.,
Frank v. United States, 395 U.S. 147, 149 (1969); Fushek v. State, 218 Ariz. 285,
289 ¶ 11 (2008).
¶91 The two inquiries sound superficially similar, but in this case
it is easy to see how the outcome would be markedly different. The
majority engages in an extensive Smith/Noble inquiry and concludes that the
mandatory sexual registry requirement is regulatory rather than punitive.
That is a conclusion with which I do not necessarily disagree, given the
similarities between our registration scheme and the one at issue in Smith.
¶92 But that inquiry is simply beside the point. This case does not
involve retroactively applying legislation. It is a criminal prosecution. By
its terms, the Sixth Amendment applies “[i]n all criminal prosecutions.”
U.S. Const. amend. VI. By failing to apply the Sixth Amendment
framework that pertains to all criminal cases, the Court by its decision today
carves out a Sixth-Amendment-free zone in a critical component of a
criminal trial.
¶93 Indeed, this Court expressly rejected the analysis applied by
the majority here only eleven years ago in Fushek, in which the Court made
the proper analysis crystal clear: “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.’” 218 Ariz. at 290
¶ 19. The Court categorically rejected the use of the factors from Kennedy v.
Mendoza-Martinez, 372 U.S. 144 (1963), upon which the majority relies
today, supra ¶ 34, declaring in the most unequivocal terms: “The test does
not measure whether a sanction is sufficiently severe to trigger the right to
jury trial under the Sixth Amendment.” 218 Ariz. at 290 ¶ 19.
¶94 Instead, the Court in Fushek examined the sexual registry
requirement to determine whether it evidences legislative intent that the
underlying offense is serious. Unsurprisingly, the Court held that “the
potential of sex offender registration reflects a legislative determination that
Fushek has been charged with serious crimes.” Id. at 292 ¶ 30. So has
Trujillo.
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STATE OF ARIZONA V. OSCAR PENA TRUJILLO
JUSTICE BOLICK, Dissenting
¶95 Here, the fact that the victim is below the age of eighteen
transforms discretionary registration into mandatory registration. If the
possibility of registration demonstrated that the legislature considered the
underlying crime serious in Fushek, surely mandatory registration does not
diminish that conclusion. As the crime here, in effect, is sexual abuse of a
minor, all of the facts necessary for conviction—including the fact that the
victim was a minor—must be found by the jury.
¶96 In Blanton, the Supreme Court established a dividing line
between petty offenses, which do not require a jury trial, and serious
offenses, which do. That line, the Court stated, is based on “the seriousness
with which society regards the offense,” as reflected by the maximum
penalty assigned to the crime. 489 U.S. at 541 (quoting Frank, 395 U.S. at
148). Such a penalty encompasses not only prison sentences but any
penalty that entails “a significant infringement of personal freedom,”
including fines or probation. Id. at 542 (citation omitted).
¶97 The majority acknowledges this very point, noting that
Blanton determined whether the underlying crime is serious based on “both
the civil regulatory requirements and criminal penalties that accompany a
conviction.” Supra ¶ 67 (citing Blanton, 489 U.S. at 544–45 & n.9). The
majority goes on to cite other Arizona cases in which a crime was deemed
serious for Sixth Amendment right to jury purposes based on
accompanying civil penalties. Id. (citing Derendal, 209 Ariz. at 425–26 ¶ 40
& n.9 (loss of driver’s license); Buccellato v. Morgan, 220 Ariz. 120, 125 ¶ 13
n.5 (App. 2008) (revocation of business permit)). These cases all underscore
that the proper inquiry for determining a jury trial right is not whether the
penalties are regulatory or punitive, an inquiry the majority engages in at
great but irrelevant length, but whether they demonstrate that the
underlying crime is serious.
¶98 Following Blanton, the Supreme Court ruled in Apprendi v.
New Jersey that “any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 530 U.S. 466, 490 (2000). Specifically, this
requirement encompasses “facts that increase the prescribed range of
penalties to which a criminal defendant is exposed.” Id. (quoting Jones v.
United States, 526 U.S. 227, 252–53 (1999)). Unquestionably, the statute at
issue here does precisely that.
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STATE OF ARIZONA V. OSCAR PENA TRUJILLO
JUSTICE BOLICK, Dissenting
¶99 In Alleyne v. United States, the Court held that any fact that
increases a mandatory minimum sentence for a crime is an element of that
crime and therefore must also be found by the jury. 570 U.S. 99, 103 (2003).
This, the Court held in an opinion by Justice Thomas, is “the essential Sixth
Amendment inquiry.” Id. at 114. Thus, “[w]hen a finding of fact alters the
legally prescribed punishment so as to aggravate it,” the Court held, “the
fact necessarily forms a constituent part of a new offense and must be
submitted to the jury.” Id. at 114–15. That is exactly how the statute
operates here: the fact of a victim younger than eighteen increases the
mandatory minimum penalty and transforms a discretionary into
mandatory life-long registration requirement. A.R.S. § 13-3821(A)(4), (C).
That predicate fact must therefore be proved beyond a reasonable doubt to
the jury.
¶100 The Court made clear in Southern Union Co. v. United States
that Apprendi’s jury factfinding requirement applies not only to prison
sentences, but also to other penalties such as criminal fines. 567 U.S. 343,
346, 350 (2012). The relevant inquiry is not the nature of the penalty, but
whether it is petty or substantial. Id. at 350–51 (stating that “not all fines are
insubstantial, and not all offenses punishable by fines are petty”). Here,
regardless of the level of offense, lifelong registration is a serious penalty,
as we stated in Fushek. See 218 Ariz. at 292–93 ¶ 30. Thus, the jury must
find any fact that increases the penalty.
¶101 Most recently, in United States v. Haymond, 139 S. Ct. 2369(2019), the Court held that a jury must find the facts on which a revocation
of supervised release and imposition of an additional mandatory prison
term is based. After reviewing the relevant precedents, the plurality
opinion by Justice Gorsuch noted, “By now, the lesson for our case is clear.”
Id. at 2378 (plurality). When a defendant is exposed to an additional penalty
for a serious offense, the facts triggering that penalty must be found not by
the judge but by a jury. Id.¶102 The right to jury trial cases consider an array of civil and
criminal penalties, without pausing to determine whether they are punitive
or regulatory. Rather, the inquiry is whether the penalties, taken together,
demonstrate that the legislature considers the underlying crime serious. If
so, all of the facts that determine whether a particular penalty applies must
be determined by a jury.
29
STATE OF ARIZONA V. OSCAR PENA TRUJILLO
JUSTICE BOLICK, Dissenting
¶103 These decisions point inexorably to the correct outcome here.
As this case implicates the right to jury trial, not the constitutional
constraint on ex post facto laws, the Blanton/Apprendi framework rather
than the Smith/Noble framework applies. See Fushek, 218 Ariz. at 290 ¶ 19.
¶104 Applying the appropriate framework, this Court in Fushek
concluded that the potential for sex registration reflects a legislative
determination that the underlying offense is serious. Id. at 292 ¶ 30. That
conclusion triggers the right to jury trial (Blanton). The jury must determine
every fact that gives rise to an increased penalty (Apprendi, Alleyne,
Haymond). Therefore, Trujillo was entitled to a jury finding that the sexual
abuse victim was below eighteen years of age.
¶105 The majority acknowledges the relevant right to jury trial
cases, but contends that Blanton “does not provide a useful framework for
this case,” because it “provides no assistance” in determining whether
“Arizona’s registration statutes are civil or criminal,” which the majority
contends is the question at issue. Supra ¶ 69.
¶106 With respect, it is not. As noted, Fushek decides precisely, in
the context of Arizona’s sex offender registration statutes, that the
criminal/civil framework does not apply in the right to jury context. 218
Ariz. at 290 ¶ 19. As the majority correctly states, “Fushek held that because
the underlying offenses were serious, the defendant was entitled to a jury
trial on those offenses.” Supra ¶ 72. Thus, the jury trial requirement is based
on the seriousness of the underlying crime, not the Mendoza-Martinez
factors. And as the Court held in Fushek, sex offender registration is a
serious consequence, one invoking the right to a jury trial. As a necessary
corollary, the jury must find all facts necessary to sustain conviction where
a crime carries registration as a penalty. The majority does not explain what
has happened in the intervening eleven years to make Fushek’s reasoning
obsolete or inapplicable.
¶107 The Sixth Amendment jury trial framework that applies here,
and the Smith line of cases that apply in the ex post facto context and others,
are well-developed and serve important but very different purposes, and
they do not properly intertwine. The number of U.S. Supreme Court
decisions that have applied the Mendoza-Martinez factors in the Sixth
Amendment right to jury context is zero. Before today, the number of times
this Court has applied the Mendoza-Martinez factors in the Sixth
Amendment context was also zero.
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STATE OF ARIZONA V. OSCAR PENA TRUJILLO
JUSTICE BOLICK, Dissenting
¶108 The Supreme Court cases the majority cites, supra ¶¶ 82–83,
either predate Mendoza-Martinez or deal with contexts other than the right
to jury trial in a criminal prosecution. See Hudson v. United States, 522 U.S.
93 (1997) (Double Jeopardy Clause of the Fifth Amendment); United States
v. Ward, 448 U.S. 242 (1980) (civil proceeding involving penalty for oil
discharge); Mendoza-Martinez, supra ¶¶ 80–81 (civil proceeding to divest
individual of citizenship). Indeed, another case cited by the majority, supra
¶ 84, makes the line of demarcation clear, applying the Mendoza-Martinez
factors in the context of a red-light running violation, noting that the Sixth
Amendment right to jury trial right is “only guaranteed during a criminal
prosecution,” whereas in that case the appellants had not “alleged that
there was even a remote threat of future criminal prosecution.” Worthy v.
City of Phenix City, Ala., 930 F.3d 1206, 1220 (11th Cir. 2019). By contrast, the
Court has consistently applied the Blanton/Apprendi framework in all cases
involving the right to jury trial in criminal prosecutions, and we should do
so here.
¶109 The majority also cites a handful of state cases that apply the
Mendoza-Martinez factors in the Sixth Amendment context, 3 but we should
not follow their error, particularly when U.S. Supreme Court precedents
and our own precedents are so very clear. See, e.g., Haymond, 139 S. Ct. at
2378. Under our system of federalism, we are free to expand the rights
recognized by the U.S. Supreme Court, but not to contract them. California
v. Ramos, 463 U.S. 992, 1013–14 (1983) (“It is elementary that States are free
to provide greater protections in their criminal justice system than the
Federal Constitution requires.”). That is what the majority does today by
substituting the framework consistently applied by the Supreme Court
with one that produces less protection for criminal defendants than the
Sixth Amendment requires.
3 Indeed, not all the cases cited by the majority entail mandatory penalties,
which is significant for analysis under Alleyne, supra. In People v. Mosley,
344 P.3 788, 789 (Cal. 2015), the issue was whether the judge may “make[]
the findings underlying his or her discretionary order that a convicted
criminal defendant must register as a sex offender.” Trujillo is challenging
a mandatory registration provision, not one within the judge’s discretion.
Indeed, a conviction for sexual abuse allows a judge to impose registration
at his discretion, and Trujillo was convicted of sexual abuse by a jury. The
issue here is that the judge, after finding the victim was a minor, was
required to assign registration as a mandatory minimum for sexual abuse
of a minor.
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STATE OF ARIZONA V. OSCAR PENA TRUJILLO
JUSTICE BOLICK, Dissenting
¶110 At the end of the day, the Court’s incorrect holding likely
bodes no consequence for Trujillo, because Apprendi errors are subject to
harmless error review. See, e.g., State v. Ring, 204 Ariz. 534, 554–55 (2003).
But see Neder v. United States, 527 U.S. 1, 31–32 (1999) (Scalia, J., concurring
in part and dissenting in part) (suggesting that such error is structural and
never harmless because “the basis . . . is precisely that . . . the Constitution
does not trust judges to make determinations of criminal guilt” (emphasis
omitted)). But the Court’s reasoning surely will have serious adverse
consequences for the accused in future cases.
¶111 In reaching its conclusion, the majority boarded the wrong
train on the wrong tracks to the wrong destination. In so doing, it derailed
the right to jury determination of a factual predicate to a lifelong
registration obligation. With great respect to my colleagues, I dissent.
32