In Re the Commitment of Wilfredo Jaramillo

FILED BY CLERK
IN THE COURT OF APPEALS MAY 23 2012
STATE OF ARIZONA
COURT OF APPEALS
DIVISION TWO DIVISION TWO
)
) 2 CA-MH 2011-0011-SP
IN RE THE COMMITMENT OF ) DEPARTMENT B
WILFREDO JARAMILLO )
) OPINION
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)
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. A20060008
Honorable Richard S. Fields, Judge
AFFIRMED
Barbara LaWall, Pima County Attorney
By Jacob R. Lines Tucson
Attorneys for Appellee
Barton & Storts, P.C.
By Brick P. Storts III Tucson
Attorneys for Appellant
Thomas C. Horne, Arizona Attorney General
By Aubrey Joy Corcoran Phoenix
Attorneys for Arizona State
Hospital/Arizona Community
Protection and Treatment Center
E S P I N O S A, Judge.
¶1 In 2007, Wilfredo Jaramillo was found to be a sexually violent person and
was committed to the Arizona Community Protection and Treatment Center (ACPTC)
pursuant to Arizona’s Sexually Violent Persons Act (SVPA). In re Commitment of
Jaramillo, 217 Ariz. 460, ¶ 1, 176 P.3d 28, 29 (App. 2008); see also A.R.S. §§ 36-3701
through 36-3717 (SVPA). We affirmed his commitment on appeal. In re Jaramillo, 217
Ariz. 460, ¶ 1, 176 P.3d at 29. Jaramillo has remained in ACPTC’s custody to date, but
was transferred from full confinement to the less-restrictive-alternative program at
ACPTC in 2010.
¶2 In 2011, following the state’s filing of its annual report pursuant to
§ 36-3708, Jaramillo petitioned for absolute discharge, filing a notice requesting a trial
pursuant to § 36-3714(B) and requesting an independent evaluation pursuant to
§ 36-3708(B). The trial court appointed clinical psychologist Dr. Jerry Day and, after his
examination, Jaramillo filed a second request for trial, asking to be discharged or,
alternatively, for his less-restrictive alternative “conditions [to] be modified to be
compatible with those that have been recommended by Dr. Day.” Jaramillo noted in that
petition that Day had been critical of ACPTC’s treatment plan, and requested that
ACPTC’s “evaluators be in attendance to explain” his “treatment circumstances.”
¶3 At an August 2011 hearing, Day testified that Jaramillo’s mental condition
had not changed and that he was highly likely to reoffend. He also stated, consistent with
ACPTC reports, that Jaramillo had made little to no progress in his treatment. He opined
that Jaramillo’s “profound delusion system” prevented the treatment currently provided
from being effective and recommended that ACPTC provide treatment for Jaramillo’s
delusions in addition to the treatment it was already providing. Jaramillo had not
subpoenaed any ACPTC personnel and none attended the hearing.
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¶4 The trial court found that Jaramillo’s “status as an SVP continues and that
release of any sort at this point in time is contraindicated.” Jaramillo requested that the
court order ACPTC to follow a course of treatment consistent with Day’s
recommendations. The court took that request under advisement, and later issued a
minute entry stating it would make no such ruling “unless and until ACPTC has had
appropriate due process: notice and an opportunity to be heard.” It instructed Jaramillo
“to contact ACPTC through counsel . . . and determine if further proceedings are
necessary and/or appropriate.”
¶5 Jaramillo then filed a request for a “supplemental trial date” again
requesting that he be discharged or that his “conditions be modified to be compatible with
those that have been recommended by Dr. Day.” ACPTC responded to that request,
asserting the trial court had no authority to order it to implement a specific course of
treatment, a request to change conditions of treatment could not be addressed as part of
an annual review hearing because ACPTC was not a party to that proceeding, and
Jaramillo’s motion was “premature” because he had not given ACPTC “an opportunity to
consider the merits of Dr. Day’s opinion.” The court then issued a signed order stating
further proceedings were “unnecessary”; finding Day’s reports and recommendations had
been provided to ACPTC, which “understands its duty to appropriately render treatment”
to Jaramillo; and finding Jaramillo’s “status as a sexually violent person continues.”
¶6 On appeal, Jaramillo asserts he has a substantive due process right “to
treatment designed to effect his release from commitment.” And he contends
§ 36-3704(E) “gives the trial court the authority to find that the course of treatment being
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provided . . . has no basis in fact or law, in that it has been proven ineffective, and
maintaining that course of treatment does not further the objectives of the SVP act.”
Thus, he concludes, the trial court “may order ACPTC personnel to adopt any given
method of treatment offered as a viable alternative treatment program . . . that is found by
the court to be in [his] best interest.” He asks us to “hold that the trial court does have the
authority to order a specialized treatment plan for an SVP” and direct the trial court to
order ACPTC “to adopt and apply the individualized treatment program suggested by Dr.
Day.”
¶7 We will affirm a trial court’s order for involuntary treatment if it is
supported by substantial evidence. In re MH 2008-001188, 221 Ariz. 117, ¶ 14, 211 P.3d
1161, 1163 (App. 2009). “We view the facts in the light most favorable to sustaining the
trial court’s judgment and will not set aside the related findings unless they are clearly
erroneous.” Id. To the extent Jaramillo’s appeal presents a question of statutory
interpretation, we review it de novo. See In re Commitment of Flemming, 212 Ariz. 306,
¶ 3, 131 P.3d 478, 479 (App. 2006). Where the plain language of the statute is clear, we
will not look beyond that language to understand the statute’s meaning. See State v.
Garcia, 219 Ariz. 104, ¶ 6, 193 P.3d 798, 800 (App. 2008).
¶8 We first observe that Jaramillo made no claim below based on substantive
due process and therefore has waived that argument on appeal. See Englert v. Carondelet
Health Network, 199 Ariz. 21, ¶ 13, 13 P.3d 763, 768 (App. 2000) (“[W]e generally do
not consider issues, even constitutional issues, raised for the first time on appeal.”). And,
even assuming, without deciding, that Jaramillo has a substantive due process right to
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effective treatment, we find nothing in the SVPA that gives the trial court authority to
mandate a particular treatment plan in these circumstances.1
¶9 Pursuant to the SVPA, upon finding that an individual is a sexually violent
person, a trial court may commit that person into custody for treatment, care, or
supervision, or it may in certain circumstances place the individual in a less-restrictive
alternative to custody. § 36-3707(B). Once either has occurred, that person may petition
the court annually for conditional release to a less-restrictive alternative or for discharge.
§§ 36-3709, 36-3714. Nothing in the statutes governing those procedures, however,
expressly gives a trial court authority to prescribe a specific treatment plan.
¶10 To the extent Jaramillo suggests that § 36-3704(E) provides that authority,
we disagree. That subsection states:
At any hearing concerning conditions of detention,
commitment or treatment at a licensed facility under the
supervision of the superintendent of the Arizona state
hospital, a person who is detained or committed pursuant to
this article shall show that the procedures or actions of the
licensed facility have no reasonable basis in fact or law.
§ 36-3704(E). But the SVPA does not provide for hearings beyond those described
above—to determine whether the person should be committed for treatment, care, or
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When a trial court determines a person may be placed in a less-restrictive
alternative, it must “impose any conditions on the person that the court determines are
necessary to ensure the safety of the community.” § 36-3710(D). Those conditions may
include those “the court or the superintendent of the state hospital determines are in the
best interest of the person or others.” § 36-3710(D)(6). To the degree such additional
conditions could include a particular treatment plan, this provision would not apply to
Jaramillo because he was not placed in a less-restrictive alternative to his current
placement. Moreover, Jaramillo does not argue on appeal that § 36-3710(D)(6) provides
the court authority to mandate a particular treatment plan.
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supervision; whether that person should be placed in a less-restrictive alternative; or
whether that person should be discharged. And nothing in § 36-3704(E) gives the trial
court authority to fashion relief—that subsection only describes the burden a detained
person must meet at any hearing where the “conditions of detention, commitment or
treatment” are at issue. Moreover, although § 36-3704(D) continues a trial court’s
jurisdiction over a committed person “until the person is discharged by the court,”
Jaramillo cites no authority, and we find none, suggesting that subsection gives a trial
court authority not otherwise contemplated by the SVPA.
¶11 We reject Jaramillo’s claim that § 36-3704(E) is “meaningless . . . without
the [trial] court having the authority to fashion an appropriate remedy” should a person
meet the burden described in that statute. He relies on the canon of statutory construction
that a court must avoid an interpretation of a statute that renders it meaningless. See Ariz.
Dep’t of Revenue v. Action Marine, Inc., 218 Ariz. 141, ¶ 10, 181 P.3d 188, 190 (2008)
(advising against interpretations that render statutory words or phrases “meaningless,
unnecessary, or duplicative”). But that principle does not permit us to graft a remedy
onto a statute when its plain language contains no such remedy. See In re Estate of
Gordon, 207 Ariz. 401, ¶ 19, 87 P.3d 89, 93 (App. 2004).
¶12 Further, Jaramillo’s argument presupposes that the burden in § 36-3704(E)
applies only to hearings occurring pursuant to the SVPA and that the Act provides his
only avenue for relief. Nothing in § 36-3704(E), however, narrows its scope to the
hearings enumerated in the SVPA; instead, it applies to “any hearing concerning
conditions of detention, commitment or treatment at a licensed facility under the
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supervision of the superintendent of the Arizona state hospital.” Nor does our
interpretation foreclose relief if Jaramillo’s underlying claim is meritorious. At its core,
his claim is that the ACPTC has failed to perform its duty to provide adequate treatment.
A person may, via special action, bring a claim that a government official has failed to
fulfill a duty required by law. See Ariz. R. P. Spec. Actions 3(a), (c); Blake v. Schwartz,
202 Ariz. 120, n.6, 42 P.3d 6, 13 n.6 (App. 2002) (mandamus action used to compel
public official to perform duty; mandamus now “replaced with special actions”).
¶13 For the reasons stated, we conclude that, in these circumstances, the trial
court had no authority under the SVPA to order ACPTC to implement a specific
treatment plan and the court therefore did not err in rejecting Jaramillo’s request that it do
so. Accordingly, the trial court’s order is affirmed.
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
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