State of Arizona v. Joseph Michael Goddard ( 2011 )


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  •                           IN THE COURT OF APPEALS                         FILED BY CLERK
    STATE OF ARIZONA
    DIVISION TWO                                 AUG 24 2011
    COURT OF APPEALS
    DIVISION TWO
    THE STATE OF ARIZONA,                            )
    )
    Respondent,     )       2 CA-CR 2011-0084-PR
    )       DEPARTMENT A
    v.                                 )
    )       OPINION
    JOSEPH MICHAEL GODDARD,                          )
    )
    Petitioner.   )
    )
    PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY
    Cause No. CR20082426
    Honorable Michael J. Cruikshank, Judge
    REVIEW GRANTED; RELIEF DENIED
    Isabel G. Garcia, Pima County Legal Defender
    By Joy Athena                                                                      Tucson
    Attorneys for Petitioner
    E C K E R S T R O M, Presiding Judge.
    ¶1            Petitioner Joseph Goddard seeks review of the trial court‟s order dismissing
    his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P., in
    which he alleged the court had violated his right to due process by concluding his
    offenses were dangerous crimes against children. “We will not disturb a trial court‟s
    ruling on a petition for post-conviction relief absent a clear abuse of discretion.” State v.
    Swoopes, 
    216 Ariz. 390
    , ¶ 4, 
    166 P.3d 945
    , 948 (App. 2007). Goddard has not sustained
    his burden of establishing such abuse here.
    ¶2            Pursuant to a plea agreement, Goddard was convicted of two counts of
    attempted sexual conduct with a minor under fifteen years old. At his change-of-plea
    hearing, Goddard pled guilty to both offenses as dangerous crimes against children. The
    trial court imposed a partially aggravated, twelve-year prison term on the first count and
    placed Goddard on a consecutive term of lifetime probation on the second count.
    Goddard petitioned for post-conviction relief, asking the court to reweigh the evidence of
    aggravating and mitigating factors. The court summarily dismissed the petition.
    ¶3            Thereafter, still within ninety days of sentencing, Goddard moved the court
    to either reinstate his previous Rule 32 proceeding or to “permit the filing of a new
    Notice of Post-Conviction Relief.” Goddard‟s counsel, from the public defender‟s office,
    asserted in the motion that other assistant public defenders who previously had been
    assigned to the case erroneously had filed a Rule 32 petition which “was probably
    intended as some type of Rule 24 motion.”          Goddard filed a new notice of post-
    conviction relief the same day. The court apparently granted the motion, as it assigned
    counsel and set a schedule for preparation of the record and filing of the petition.1 In his
    subsequently filed petition, citing State v. Gonzalez, 
    216 Ariz. 11
    , 
    162 P.3d 650
     (App.
    2007), Goddard asked the court to resentence him “because the offense to which he pled
    guilty requires sentencing under (former) A.R.S. § 13-702, not [former] A.R.S. § 13-
    1
    Because the trial court apparently granted this motion and reinstated the Rule 32
    proceeding, preclusion based on a prior Rule 32 petition does not apply.
    2
    604.01[(J)].”2 Goddard also argued a term in his plea agreement requiring him to pay
    $1,500 to the Pima Crime Victim Compensation Fund was unlawful and trial counsel had
    been ineffective in failing to raise both sentencing issues.
    ¶4            The trial court granted Goddard relief on his sentencing claims but
    concluded he had failed to show his counsel‟s performance had been deficient. The court
    resentenced Goddard, imposing an aggravated, seven-year term of imprisonment on the
    first conviction and placing him on a consecutive, lifetime term of probation on the
    second conviction. In his sentencing memorandum, Goddard argued that, in addition to
    sentencing him under former § 13-702 instead of former § 13-604.01, the court should
    “refrain from applying the [dangerous crime against children] designation to [his]
    offenses.” The court and counsel discussed the matter at the resentencing hearing and the
    court declined to designate the offenses dangerous crimes against children, instructing the
    state to “file the documents you want to, if you would, to preserve the record.” The state
    moved for reconsideration of whether the offenses were dangerous crimes against
    children, and the court amended its sentencing minute entry to designate each offense as
    a dangerous crime against children.3
    2
    2007 Ariz. Sess. Laws, ch. 248, § 2 (former § 13-604.01); 2006 Ariz. Sess. Laws,
    ch. 148, § 1 (former § 13-702); 2006 Ariz. Sess. Laws, ch. 104, § 1 (former § 13-702).
    3
    As discussed below, the court‟s original designation of Goddard‟s offenses as
    dangerous crimes against children was not unlawful. The court therefore was without
    authority to grant Goddard‟s request to remove the designation after Goddard had pled
    guilty to his offenses as dangerous crimes against children. See State v. Superior Court,
    
    124 Ariz. 288
    , 289, 
    603 P.2d 915
    , 916 (1979) (“„[T]he trial court‟s jurisdiction in post-
    trial motions is limited to that set out in the Rules, and an exercise of that jurisdiction is
    permissible only upon the grounds specified therein.‟”), quoting State v. Falkner, 112
    3
    ¶5            Goddard again initiated post-conviction relief proceedings, this time
    requesting in his petition that the trial court “re-designate his offenses because they are
    not dangerous crimes against children.” The court summarily dismissed his petition,
    concluding Goddard had been “properly resentenced pursuant to Gonzalez and his
    offenses were properly designated as a dangerous crime against children.”
    ¶6            On review, Goddard challenges this conclusion, arguing that because
    former § 13-604.01(N)(1), which set forth various offenses defined as dangerous crimes
    against children, began with the phrase “[f]or the purposes of this section,” and “because
    [he] is not subject to the sentencing scheme after Gonzalez, his offense[s] cannot be
    designated” dangerous crimes against children. We agree with the trial court that “while
    § 13-604.01, as it existed at the time of [Goddard]‟s offenses, did not provide a
    sentencing structure, [it] did provide a classification for the conduct as a dangerous crime
    against children.”
    ¶7            In Gonzalez, we concluded former § 13-604.01 “d[id] not provide a
    sentence for attempted sexual conduct with a minor under the age of twelve.” 
    216 Ariz. 11
    , ¶ 8, 
    162 P.3d at 652
    . We did not, however, specifically address whether that offense
    nonetheless could be designated a dangerous crime against children under former § 13-
    604.01(N). As Goddard points out, that subsection began: “For the purposes of this
    section . . . „[d]angerous crime against children‟ means any of the following that is
    Ariz. 372, 374, 
    542 P.2d 404
    , 406 (1975); see also State v. Thompson, 
    200 Ariz. 439
    , ¶ 7,
    
    27 P.3d 796
    , 798 (2001) (“One is convicted when there has been a determination of guilt
    by . . . the acceptance of a plea.”). Thus, the sentence imposed at resentencing without
    the dangerous crime against children designation was unlawful, and the court was
    authorized under Rule 24.3, Ariz. R. Crim. P., to correct that sentence within sixty days.
    4
    committed against a minor who is under fifteen years of age.” 2007 Ariz. Sess. Laws, ch.
    248, § 2. Included in the list of offenses was “[s]exual conduct with a minor.” 2007
    Ariz. Sess. Laws, ch. 248, § 2 (former § 13-604.01(N)(1)(e)).
    ¶8                Goddard argues the inclusion of the phrase “[f]or the purposes of this
    section” mandates that a dangerous crime against children can only be “an offense
    expressly subject to sentencing under” the dangerous crimes against children statute.
    But, providing an enhanced sentencing range for such crimes is not the only purpose of
    the statute.      It also defines what constitutes a dangerous crime against children, as
    suggested by its title: “Dangerous crimes against children; sentences; definitions.” See
    State v. Romero, 
    216 Ariz. 52
    , ¶ 5, 
    162 P.3d 1272
    , 1273 (App. 2007) (“„[A]lthough title
    and section headings of statutes are not law, we may look to them for guidance.‟”),
    quoting Pleak v. Entrada Prop. Owners’ Ass’n, 
    205 Ariz. 471
    , ¶ 7, 
    73 P.3d 602
    , 605
    (App. 2003).
    ¶9                Contrary to Goddard‟s assertion that “the legislature defined a dangerous
    crime against children for the sole purpose of the sentencing scheme it created for those
    offenses,” that definition has import beyond the enhanced sentences provided in the
    statute itself.     For example, the definition of “[h]istorical prior felony conviction”
    includes crimes defined as dangerous crimes against children.               A.R.S. § 13-
    105(22)(a)(v).4 And a person who is convicted of a dangerous crime against children
    4
    Former A.R.S. § 13-604(W)(2)(vi), the statute in effect at the time of Goddard‟s
    offenses, likewise provided that a dangerous crime against children was a historical prior
    felony conviction. 2007 Ariz. Sess. Laws, ch. 287, § 1.
    5
    after November 1, 2006, placed on probation, ordered to register pursuant to A.R.S. § 13-
    3821, and classified as a level three offender, must be monitored by a global position
    system or other electronic means. A.R.S. § 13-902(G).5 Based on the plain language of
    these statutes, we cannot say the legislature intended, through its omission of attempted
    sexual conduct with a minor under twelve years of age from enhanced sentencing, see
    Gonzalez, 
    216 Ariz. 11
    , ¶ 10, 162 P.3d at 653, to relieve a defendant convicted of a crime
    that fits the definition of a dangerous crime against children set forth in former § 13-
    604.01(N), of these additional requirements and consequences. See Walter v. Wilkinson,
    
    198 Ariz. 431
    , ¶ 6, 
    10 P.3d 1218
    , 1219 (App. 2000) (“In interpreting statutes, we must
    strive to „find and give effect to legislative intent,‟ and to interpret the statute so as to
    give it a fair and sensible meaning.”) (citations omitted), quoting Bustos v. W.M. Grace
    Dev., 
    192 Ariz. 396
    , 398, 
    966 P.2d 1000
    , 1002 (App. 1997). Therefore, although we
    grant the petition for review, we deny relief.
    /s/ Peter J. Eckerstrom
    PETER J. ECKERSTROM, Presiding Judge
    CONCURRING:
    /s/ Joseph W. Howard
    JOSEPH W. HOWARD, Chief Judge
    /s/ J. William Brammer, Jr.
    J. WILLIAM BRAMMER, JR., Judge
    5
    The version of the statute in effect at the time of Goddard‟s offenses similarly
    provided that if a person was convicted of a dangerous crime against children and a term
    of probation was imposed, global position system monitoring was required. 2007 Ariz.
    Sess. Laws, ch. 290, § 4 (former § 13-902(G)).
    6