Beth Fay v. Hon. fox/state/jordan Hanson

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
BETH FAY,
Petitioner,
v.
THE HONORABLE DEWAIN D. FOX, JUDGE OF THE SUPERIOR COURT OF THE
STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
Respondent Judge,
and
STATE OF ARIZONA; JORDAN MICHAEL HANSON,
Real Parties in Interest.
No. CR-20-0306-PR
Filed September 20, 2021
Appeal from the Superior Court in Maricopa County
The Honorable Dewain D. Fox, Judge
No. CR2015-005451-001
REVERSED
Order of the Court of Appeals, Division One
1 CA-SA 20-0123
VACATED AND REMANDED
COUNSEL:
Randall S. Udelman (argued), Arizona Crime Victim Rights Law Group,
Scottsdale, Attorney for Beth Fay
Treasure VanDreumel (argued), Law Office of Treasure VanDreumel, PLC,
Phoenix; Lori L. Voepel, Jones, Skelton & Hochuli, PLC, Phoenix, Attorneys
for Jordan Michael Hanson
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FAY V. HON. FOX/STATE/HANSON
Opinion of the Court
Allister Adel, Maricopa County Attorney, Phoenix, Attorneys for State of
Arizona
Colleen Clase, Arizona Voice for Crime Victims, Phoenix, Attorney for
Amici Curiae Arizona Voice for Crime Victims, Inc. and National Crime
Victim Law Institute
David J. Euchner (argued), Pima County Public Defender’s Office, Tucson;
Madeline A. Mayer, Maricopa County Public Defender’s Office, Phoenix,
Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice
Mark Brnovich, Arizona Attorney General, Brunn (Beau) W. Roysden III,
Solicitor General, Lacey Stover Gard, Deputy Solicitor General/Chief of
Capital Litigation, Ginger Jarvis, Assistant Attorney General, Capital
Litigation Section, Phoenix, Attorneys for Amicus Curiae Arizona Attorney
General
_______________
JUSTICE BOLICK authored the opinion of the Court, in which JUSTICES
LOPEZ and BEENE and JUDGE BREARCLIFFE joined.* VICE CHIEF
JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, dissented.**
_______________
JUSTICE BOLICK, opinion of the Court:
¶1 In this case, we hold that a crime victim has a constitutional
and statutory right to be heard on the merits of a defendant’s motion for a
delayed appeal of a restitution order.
*
Justice William G. Montgomery has recused himself from this case.
Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable
Sean E. Brearcliffe, Judge of the Arizona Court of Appeals, Division Two,
was designated to sit in this matter.
** Although Justice Andrew W. Gould (Ret.) participated in the oral
argument in this case, he retired before issuance of this opinion and did not
take part in its drafting.
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FAY V. HON. FOX/STATE/HANSON
Opinion of the Court
BACKGROUND
¶2 On September 5, 2015, defendant Jordan Michael Hanson
allowed Carson Dumbrell to enter his home. Shortly after, Hanson
retrieved a loaded handgun from his bedroom and asked Dumbrell to
leave. When Dumbrell refused, Hanson repeatedly punched him. During
their fight, Hanson shot and killed Dumbrell.
¶3 On February 16, 2017, a jury convicted Hanson of second-
degree murder. Beth Fay is Dumbrell’s mother, and therefore a victim
under Arizona law. Ariz. Const. art. 2, § 2.1(C). On May 24, 2017, Hanson
was sentenced to twelve years in prison. The next day, Hanson filed a
Notice of Appeal. The trial court retained jurisdiction over restitution.
¶4 On March 21, 2018, Fay filed a motion requesting a Criminal
Restitution Order (“CRO”) pursuant to A.R.S. § 13-805(B). She requested
$570,159.45 total in restitution. Hanson filed a response opposing the CRO
on May 8, 2018. On October 10, 2018, Fay and Hanson submitted a Joint
Report Regarding Restitution Issues.
¶5 On November 8, 2018, the court of appeals issued a
Memorandum Decision rejecting Hanson’s direct appeal of his conviction.
¶6 On January 23, 2019, Fay and Hanson submitted a Joint
Report Regarding Remaining Restitution Issues. In that report, both Fay
and Hanson stated that they had conferred and agreed that the trial court
“may enter an award of restitution in Beth Fay’s favor in the amount of at
least $558,117.45.”
¶7 On May 20, 2019, the trial court entered a CRO awarding Fay
$562,980.45 in restitution. Hanson did not appeal the court’s order.
¶8 On January 7, 2020, eight months after the court entered the
CRO, Hanson filed a Limited Petition for Post-Conviction Relief (Delayed
Appeal Request) and Request to Hold Further PCR Proceedings in
Abeyance (“Limited Petition”) pursuant to Arizona Rule of Criminal
Procedure 32.1(f). In his petition, Hanson sought an expedited ruling on
his request to proceed with a delayed appeal of the CRO while holding his
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FAY V. HON. FOX/STATE/HANSON
Opinion of the Court
claim of ineffective assistance of counsel (“IAC”) in abeyance pending
exhaustion of his appellate remedies.
¶9 On January 13, 2020, Fay filed a Response to [Hanson’s]
Limited Petition, and Hanson then filed on January 21, 2020 a Motion to
Strike [her response] and Prohibit Future Responsive Pleadings Filed by
Victim’s Counsel and to Adjust Reply Deadline. The same day, Hanson
filed an Amended Petition for Post-Conviction Relief, requesting to include
his IAC claim in his initial post-conviction relief proceeding. Thereafter,
Fay filed a Response to [Hanson’s] Motion to Strike Pleadings Filed by
Victim’s Counsel and to Adjust Reply Deadline, arguing that Hanson was
attempting to use post-conviction relief to walk away from his prior
agreement on restitution. The trial court initially denied Hanson’s Motion
to Strike, finding that pursuant to A.R.S. § 13-4402(A), a victim’s right
relating to restitution continues to be enforceable by the court until
restitution is paid.
¶10 Following the ruling, Hanson filed an objection, complaining
that the trial court had denied his Motion to Strike before he had a chance
to reply to Fay’s Response and requesting reconsideration of the trial
court’s ruling. On April 15, 2020, the trial court reversed its decision. In its
ruling on Hanson’s objection, the court stated in part:
The drafters of the Arizona Constitution, statutes and rules of
criminal procedure all knew how to grant a victim the “right
to be heard” when that was their intent. Indeed, as set out
above, they expressly did so for certain types of proceedings.
If the drafters had intended to give victims a general right to
be heard in post-conviction relief proceedings, or specifically
on claims for permission to take a delayed appeal from a CRO
or for a new trial for IAC, the drafters could—and presumably
would—have done so expressly. As much as the Court
respects victim’s rights, the Court is tasked with enforcing the
law as written.
...
IT IS . . . ORDERED granting Petitioner’s requests for relief
in the Objection/Motion for Reconsideration, specifically
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FAY V. HON. FOX/STATE/HANSON
Opinion of the Court
(i) striking the Victims’ Response to the Limited Petition, and
(b) [sic] precluding the Victims from filing a response to the
Amended Petition.
¶11 Fay sought relief by filing a Petition for Special Action in the
court of appeals. The court of appeals accepted jurisdiction but denied
relief. In its order, it stated in part:
We discern no constitutional, statutory, or rule-based right for
Fay to weigh in on whether Hanson is at fault for this delay.
While a delayed appeal could impact Fay’s ability “to receive
prompt restitution,” . . . her general right to receive prompt
restitution does not trump Hanson’s specific right to a
delayed appeal upon demonstration that he did not cause the
delay.
The court of appeals limited its ruling to Fay’s attempt to be heard on the
motion for delayed appeal, not on the amended petition.
¶12 The State and Fay filed separate Petitions for Review. We
granted review of Fay’s Petition to determine whether a victim is entitled
to be heard on a Rule 32.1(f) request for a delayed appeal concerning
restitution because the issue is a matter of statewide concern that will likely
recur. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona
Constitution.
DISCUSSION
¶13 This case involves the interpretation of rules, statutes, and
constitutional provisions, which the Court reviews de novo. State v. Hansen,
215 Ariz. 287, 289 ¶ 6 (2007).
¶14 Through the voters’ enactment of the Victims’ Bill of Rights
(“VBR”) in 1990, Ariz. Const. art. 2, § 2.1, our state recognized constitutional
protections for crime victims that are among the nation’s most sweeping.
These rights do not limit or supplant constitutional protections for those
accused of crimes, see, e.g., R.S. v. Thompson, 251 Ariz. 111, 118 ¶ 20 (2021),
but establish important protections for victims in the criminal justice
system. The Victims’ Bill of Rights empowers the legislature to enact
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FAY V. HON. FOX/STATE/HANSON
Opinion of the Court
procedural and substantive laws to “define, implement, preserve and
protect the rights guaranteed to victims,” Ariz. Const. art. 2, § 2.1(D), and
this Court retains residual constitutional authority to create rules of
criminal procedure. State v. Reed, 248 Ariz. 72, 78 ¶ 20 (2020).
¶15 To recap the relevant facts, after Hanson unsuccessfully
appealed his murder conviction, he and the victim, Fay, entered into an
agreement regarding restitution, and the trial court entered a restitution
award in line with that agreement. Eight months later, Hanson filed a post-
conviction relief petition to contest that award based on Rule 32.1(f), which
allows such delayed relief if “the failure to timely file a notice of appeal was
not the defendant’s fault.” Ariz. R. Crim. P. 32.1(f). Fay sought to weigh in
on the merits of the Limited Petition, that is, to argue that Hanson was not
entitled to file a delayed appeal. After initially allowing Fay to be heard on
the matter, the trial court reconsidered and struck her response. The court
of appeals affirmed that decision.
¶16 Fay argues, and we agree, that Hanson’s effort to file a
delayed appeal implicates multiple rights expressly protected by the
Victims’ Bill of Rights, including the right to due process, Ariz. Const. art.
2, § 2.1(A); the right to receive “prompt restitution” from the person
convicted of the crime that caused the victim’s injury, id. at (A)(8); and the
right to a “prompt and final conclusion of the case after the conviction and
sentence,” id. at (A)(10). We will refer to these as rights to due process,
prompt restitution, and finality. Fay argues that she has a right to be heard
on Hanson’s motion to file a delayed appeal because it will delay the
restitution awarded to her of right, and the award could be extinguished
altogether on appeal.
¶17 The court of appeals concluded that Fay’s “general right to
receive prompt restitution does not trump Hanson’s specific right to a
delayed appeal upon demonstration that he did not cause the delay.” This
is an inapt characterization of the issue. Fay does not seek to invoke her
constitutional rights as a crime victim to “trump” Hanson’s right under
Rule 32.1(f) to file a delayed appeal. The only issue that the trial court will
consider is whether Hanson satisfies the standard under that rule, and Fay’s
constitutional rights are irrelevant to that determination. Rather, the
narrow question before this Court is whether Fay has a right to be heard on
the question of whether Hanson is entitled to file a delayed appeal.
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FAY V. HON. FOX/STATE/HANSON
Opinion of the Court
¶18 The trial court struck Fay’s Response on the ground that she
lacks standing to be heard on Hanson’s Limited Petition. Specifically, the
court noted that the drafters of the Victims’ Bill of Rights and implementing
statutes and rules set forth specific instances in which victims have a right
to be heard. By implication, the court held, victims do not have a right to
be heard in any setting not expressly provided. Thus, for example, a victim
can be heard on the amount of restitution, as statutorily provided in A.R.S.
§ 13-4437(E), or on a modification of a probation term that will substantially
affect restitution, Ariz. R. Crim. P. 39(b)(7)(F), but not on a limited petition
that could delay and ultimately even eliminate a restitution award.
¶19 Such an anomalous result is not required. To properly
interpret a constitutional provision requires that it be viewed in its context
as a whole. Morrissey v. Garner, 248 Ariz. 408, 410 ¶ 8 (2020) (“We examine
constitutional language in its overall context to effectuate its purpose.”).
“Such context may include a contemporaneous preamble or statement of
purpose and intent, which we will consider even where the text is not
ambiguous.” Redgrave v. Ducey, No. CV-20-0082-CQ, 2021 WL 3673222,
at *5 ¶ 22 (Ariz. Aug. 19, 2021).
¶20 By its terms, the Victims’ Bill of Rights is an intended baseline,
not a ceiling, for the rights of crime victims. See, e.g., Ariz. Const. art. 2,
§ 2.1(E) (“The enumeration in the constitution of certain rights for victims
shall not be construed to deny or disparage others granted by the legislature
or retained by victims.”). It expressly recognizes the right of crime victims
to “have all rules governing criminal procedure . . . in all criminal
proceedings protect victims’ rights.” Id. at (A)(11) (emphasis added); see
also Slayton v. Shumway, 166 Ariz. 87, 92 (1990) (limiting application of this
provision to rules directly addressing victims).
¶21 Moreover, the legislature has directed that its statutes “shall
be liberally construed to preserve and protect the rights to which victims
are entitled.” A.R.S. § 13-4418. The right to be heard in this context is
clearly contemplated by § 13-4437(A). That provision declares that “[t]he
rights enumerated in the victims’ bill of rights, . . . any implementing
legislation[,] or court rules belong to the victim.” Specifically, “[t]he victim
has standing to seek an order . . . or to file a notice of appearance . . . seeking
to enforce any right or to challenge an order denying any right guaranteed
to victims.” Id. Even without liberally construing victims’ rights, as the
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FAY V. HON. FOX/STATE/HANSON
Opinion of the Court
statute commands, this statute expressly and very broadly confers standing
upon a victim to be heard in a matter that is directly traceable to those
rights.
¶22 Unlike in federal courts, where it is a constitutional
prerequisite, standing in Arizona is a prudential consideration. Bennett v.
Napolitano, 206 Ariz. 520, 525 ¶ 19 (2003). To establish standing, a plaintiff
must show a palpable injury from the challenged conduct. Id. at 524 ¶ 16.
No injury is more palpable or direct than infringement of a constitutional
right. See, e.g., Baker v. Carr, 369 U.S. 186 (1962).
¶23 The determination of whether Hanson may proceed with a
delayed appeal of the restitution order will directly impact Fay’s rights to
due process, prompt restitution, and finality. The latter two are substantive
rights. Should Hanson prevail in his effort to present a delayed appeal, it
will have the inevitable effect of delaying restitution and postponing
finality. But for the pending motion, the issue of restitution would be
settled.
¶24 The victim’s right to due process attaches to those substantive
rights. The “fundamental requirement of due process is the opportunity to
be heard ‘at a meaningful time and in a meaningful manner.’” Mathews v.
Eldridge, 424 U.S. 319, 333 (1976) (citation omitted). That is precisely what
is at stake here. Protecting the right to prompt restitution, and the finality
of that award, requires that Fay have the opportunity to be heard on the
threshold determination of whether Hanson may proceed with a delayed
appeal under Rule 32.1(f).
¶25 The two cases Hanson principally relies upon are
inapplicable. In State v. Reed, we struck down the section of a statute that
required dismissal of a pending appeal upon a defendant’s death. 248 Ariz.
at 80 ¶ 27. The State argued that the statute was authorized to vindicate the
protections of the Victims’ Bill of Rights. Id. at 79 ¶ 23. We held that such
authorization was limited to rights that are created by the Victims’ Bill of
Rights and that are unique and peculiar to crime victims. Id. at 80 ¶ 27.
Here, no statutes are challenged, and therefore we are not confronted with
the issue we addressed in Reed.
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FAY V. HON. FOX/STATE/HANSON
Opinion of the Court
¶26 Moreover, our statement that the right to prompt restitution
under the Victims’ Bill of Rights “does not guarantee victims any particular
appellate disposition” since appellate scrutiny “may result in reversal or
modification of the order,” id. at 79 ¶ 24, does not bear on the issue we
address here. The issue is simply whether a victim may be heard on the
merits of a motion for a delayed appeal of a restitution order under the facts
of this case. 1 Regardless of the particular appellate disposition of Hanson’s
request for a delayed appeal—i.e., whether it is granted (thus affecting
restitution) or denied (thus maintaining the status quo)—Fay has the right
at least to be heard on the matter.
¶27 In State v. Lamberton, the Court ruled that a victim could not
file a petition for review, separate from the State, of an order granting a
defendant’s petition for post-conviction relief. 183 Ariz. 47, 51 (1995). The
Court held that crime victims are not “parties” to criminal proceedings, and
that the victim was not aggrieved because the trial court order did not
“operate to deny her some personal or property right, nor does it impose a
substantial burden upon her.” Id. at 49–50. The Court concluded that
“[w]hile it is true that a major purpose of the VBR is to give victims the right
to be heard at ‘criminal proceedings,’ we cannot conclude that victims are
‘parties’ with the right to file their own petitions for review.” Id. at 49.
¶28 This case implicates the right to be heard, not the party status
that was at issue in Lamberton. Fay is not seeking to initiate anything but
merely to be heard on a matter, initiated by Hanson, that directly affects her
constitutional rights. The motion for delayed appeal is aimed squarely at
the restitution award, a right that is just as squarely conferred by the
Constitution. Absent permission to file a delayed appeal, Fay’s right to
restitution could not be disturbed. Hence, she has a direct stake in the
outcome of the Limited Petition and a right to be heard on whether it should
be granted.
¶29 Neither Hanson nor the courts below assert any prejudice to
Hanson if the victim is allowed to be heard. Regardless of whether Fay
participates, the petition will be determined solely by whether Hanson
1 The victim does not contend that Rule 32.1(f) categorically violates a
victim’s right to prompt restitution, only that she has the right to be heard
in this context.
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FAY V. HON. FOX/STATE/HANSON
Opinion of the Court
satisfies the rule’s standard. But given the impact of that determination on
Fay’s constitutional rights, she must be given an opportunity to be heard.
¶30 Whether the right to be heard applies is context specific. It
depends upon whether a victim’s express rights are directly implicated by
the matter at issue. See § 13-4437(A). Here, we hold only that a victim has
a right to be heard on the merits of a Rule 32.1(f) motion for a delayed
appeal to contest a restitution award. We leave to the courts below to
decide in the first instance the appropriate scope of participation in this and
any subsequent proceedings.
CONCLUSION
¶31 We vacate the court of appeals decision, which dealt only
with the limited post-conviction relief petition to file a delayed appeal, and
reverse the trial court judgment on that issue. The court of appeals appears
to have erroneously concluded that the trial court did not rule on whether
Fay could be heard on the amended petition for post-conviction relief,
which raises different issues. In fact, the trial court precluded Fay from
filing a response to the amended petition. Hence, we remand to the court
of appeals for determination of that issue before the case is returned to the
trial court to proceed in accordance with this opinion.
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FAY v. HON. FOX/STATE/HANSON
VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting
TIMMER, VCJ., joined by BRUTINEL, CJ., dissenting.
¶32 This Court has long held that victims are not “parties” to a
criminal prosecution. See State v. Lamberton, 183 Ariz. 47, 49–50 (1995). The
majority holds that a crime victim has standing to respond to a defendant’s
request for a delayed appeal of a criminal restitution order because that
motion “implicates” the victim’s constitutional rights to prompt receipt of
restitution and a prompt and final conclusion of the case. See supra ¶¶ 16,
23. In doing so, the majority takes a giant leap toward effectively conferring
party status on victims by broadening their rights in a manner not
contemplated by our constitution, statutes, or rules. We respectfully
dissent.
¶33 Neither the Victims’ Bill of Rights, Ariz. Const. art. 2, § 2.1
(“VBR”), the Victims’ Rights Implementation Act, A.R.S. §§ 13-4401 to -4443
(“VRIA”), nor the Arizona Rules of Criminal Procedure authorize Fay to
object to Hanson’s request for a delayed appeal of the criminal restitution
order. The VBR guarantees victims the right “[t]o be heard” in only four
proceedings, none of which concerns a request for a delayed appeal. See
Ariz. Const. art. 2, § 2.1(A)(4) (granting a right “[t]o be heard at any
proceeding involving a post-arrest release decision, a negotiated plea, and
sentencing”); id. § 2.1(A)(9) (granting a right “[t]o be heard at any
proceeding when any post-conviction release from confinement is being
considered”). The VRIA also confers rights on victims to be heard at certain
specific proceedings but, again, nothing concerns a request for a delayed
appeal. See, e.g., A.R.S. §§ 13-4414(A) (post-conviction release), -4440(A)
(determination of factual innocence in identity-theft situations), -4441(A)
(restoration of the right to possess a firearm). Similarly, our court rules
provide victims the right to be heard at various criminal proceedings, but
none relate to a delayed appeal. See Ariz. R. Crim. P. 39(b)(7)(A)–(I).
Indeed, Rule 32.9 authorizes only “[t]he State” to respond to a request for a
delayed appeal. See Ariz. R. Crim. P. 32.9(a).
¶34 Our colleagues reach a different result, reasoning that “[t]he
right to be heard [on a request for a delayed appeal] is clearly contemplated
by A.R.S. § 13-4437(A).” See supra ¶ 21. But this provision does not itself
grant rights to victims. It declares that rights enumerated in the VBR
“belong to the victim” and grants the victim standing “to enforce any right
or to challenge an order denying any right guaranteed to victims.”
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FAY v. HON. FOX/STATE/HANSON
VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting
§ 13-4437(A). As just explained, however, no provision of law or rule
grants, much less guarantees, victims a right to contest a defendant’s
request for a delayed appeal, so § 13-4437(A) does not apply here.
¶35 The majority finds authority in the VBR’s provisions
guaranteeing victims the rights to prompt receipt of restitution and a
prompt and final conclusion of the case. See supra ¶¶ 16, 23. But neither
provision guarantees a right to be heard on a request for a delayed appeal
of a criminal restitution order. See Ariz. Const. art. 2, § 2.1(A)(8) (granting
the right “[t]o receive prompt restitution from the person or persons
convicted of the criminal conduct that caused the victim’s loss or injury”);
id. § 2.1(A)(10) (granting the right “[t]o a speedy trial or disposition and
prompt and final conclusion of the case after the conviction and sentence”).
Nevertheless, the majority reasons that because a delayed appeal may affect
the timing of restitution payments and case closure, § 13-4437(A) grants Fay
standing to oppose Hanson’s request for a delayed appeal. See supra ¶ 23
(“Should Hanson prevail in his effort to present a delayed appeal, it will
have the inevitable effect of delaying restitution and postponing finality.”).
¶36 The majority’s analysis lacks any tether to the VBR and § 13-
4437(A). Fay is not “enforc[ing] any right” by seeking to oppose Hanson’s
request for a delayed appeal. See § 13-4437(A). Granting the request to
bring an appeal will not vacate or modify Fay’s restitution order; if that
were the case, we agree Fay would have standing to be heard. See § 13-
4437(E) (“[T]he victim has the right to present evidence or information and
to make an argument to the court, personally or through counsel, at any
proceeding to determine the amount of restitution pursuant to § 13-804.”
(emphasis added)). Even though a delayed appeal has the potential to
lengthen the time before payment of restitution or the case finally
concludes, Fay has no right to preserve her criminal restitution order by
objecting to the filing of an appeal that is authorized by our rules. See State
v. Reed, 248 Ariz. 72, 79 ¶ 24 (2020) (concluding that a victim’s right to
prompt restitution “contemplates the entry of a restitution order that is
subject to appellate scrutiny, which may result in reversal or modification
of the order” and “does not guarantee victims any particular appellate
disposition”); Ariz. R. Crim. P. 32.1(f) (authorizing a defendant to request
post-conviction relief in the form of a delayed appeal if “the failure to timely
file a notice of appeal was not the defendant’s fault”). And whether Fay
objects to the eight-month delay or is impacted by it has no bearing on
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FAY v. HON. FOX/STATE/HANSON
VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, Dissenting
whether Hanson was at fault for missing the appeal deadline and is
therefore entitled to file a delayed appeal. See Ariz. R. Crim. P. 32.1(f).
¶37 We are troubled by the implications of today’s holding, which
nudges victims into party status. Every issue raised in a post-conviction
relief proceeding “implicates” a victim’s rights to prompt restitution and
finality because such relief, for example, a new trial or sentencing
proceeding, would result in delays. Does a victim therefore also have the
right to respond to the defendant’s request for a delayed appeal of the guilt
judgment? See Ariz. R. Crim. P. 32.1(f). Or, for that matter, could a victim
respond to a defendant’s petition for post-conviction relief based on
ineffective assistance of counsel or the discovery of new material facts? See
Ariz. R. Crim. P. 32.1(a), (e). Apparently so after today’s decision. No
principled reason exists for limiting the holding here to responding to
requests for a delayed appeal of a criminal restitution order. And the
majority offers none. From here forward, a victim can act as a “second
prosecutor” whenever a defendant raises an issue or seeks relief that may
affect any rights guaranteed to victims. This result, which was never
contemplated by the VBR or the VRIA, is unfair.
¶38 The voters, the legislature, and this Court have demonstrated
the ability to specify when a victim has a right “to be heard.” By bestowing
that right on victims when their rights are “implicated,” the majority upsets
the carefully crafted balance between the rights of victims and the rights of
defendants and effectively elevates victims to party status, at least in post-
conviction relief proceedings. We dissent.
13