Opinion
2 CA-CR 2022-0057
12-16-2022
The State of Arizona, Appellee, v. Trista Nichole Christopher, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Alice Jones, Acting Deputy Solicitor General/Chief of Criminal Appeals By Celeste Kinney, Assistant Attorney General, Phoenix Counsel for Appellee The Country Lawyer P.C., Sierra Vista By Wallace R. Hoggatt Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Cochise County No. CR201500646 The Honorable John F. Kelliher Jr., Judge
COUNSEL
Mark Brnovich, Arizona Attorney General
Alice Jones, Acting Deputy Solicitor General/Chief of Criminal Appeals
By Celeste Kinney, Assistant Attorney General, Phoenix
Counsel for Appellee
The Country Lawyer P.C., Sierra Vista
By Wallace R. Hoggatt
Counsel for Appellant
Vice Chief Judge Staring authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Vásquez concurred.
MEMORANDUM DECISION
STARING, VICE CHIEF JUDGE:
¶1 Trista Christopher appeals from the trial court's order denying her "motion for clarification of sentence" and "motion for correction of clerical error in sentencing document." For the following reasons, we dismiss the appeal for lack of jurisdiction.
Facts and Procedural Background
¶2 In 2015, Christopher pled guilty to two counts of attempted public sexual indecency to a minor in violation of A.R.S. § 13-1403(A)(1), (B). The plea agreement states, "The Court may, but is not required, to order the Defendant to register as a sex offender" pursuant to A.R.S. § 13-3821(C). At the change-of-plea hearing, Christopher confirmed that she understood the trial court "could require [her] to register as a sex offender, and that requirement could remain for the rest of [her] life."
The plea agreement mistakenly refers to A.R.S. § 13-1821(C).
¶3 The trial court suspended imposition of Christopher's sentence and placed her on consecutive four-year terms of supervised probation. During the sentencing hearing, Christopher, who was represented by counsel, asked the court not to require her to register as a sex offender, arguing such registration was not "necessary to protect the community" and the victim did not "think that registration [was] appropriate." The court stated that it did not "have much experience with the sexual offender registration" and that it was "contemplating . . . during the term of [Christopher's] probation, that she would be required to register." The prosecutor responded, "I think when you're under 25 the max[imum] is 10 years, but let me confirm that." Defense counsel explained that the law provided an exception allowing the court to "reconsider" sex-offender registration and "take that requirement away" "if the offense is committed before age 18." But, counsel acknowledged such an exception was inapplicable in Christopher's case because she had been twenty years old at the time she committed the offenses. Thus, counsel believed any sex-offender registration in the case would be "a permanent requirement."
¶4 The prosecutor later confirmed that Christopher's registration "would be a lifetime situation," adding that it would be "subject to annual review hearings . . . under [A.R.S. §] 13-923" and A.R.S. § 13-3821(H), thereby providing "the opportunity for modification down the road." The trial court stated it "would like to be able to do that. That's wonderful, if that's available." The court noted that if Christopher's "probation is terminated early" because she is "doing well on probation" and "demonstrate[s] that [she] do[es] not need to be supervised," it would, "in all likelihood, not require [her] to continue to register as a sex offender." The court then directed her to "register as a sex offender, at least while [she is] on probation." The court's sentencing order stated that Christopher "must register as a sex offender while on probation."
¶5 In 2018, Christopher pled guilty to violating the terms of her probation and to a new charge of forgery. The trial court revoked her probation and sentenced her to concurrent prison terms of 2.5 years for the forgery offense and one year for each count of attempted public sexual indecency to a minor. The court stated the 2015 registration order would "continue[] in effect" and apply to Christopher "even though [her] probation is being revoked." When Christopher asked whether the court was imposing a new registration requirement, the court responded that it was not. Christopher asserted she "just want[ed] to make sure" because the 2015 sentencing order only required her registration until she was twenty-five years old. In response, the court again confirmed there was "no new registration order" and it "is the same order that's simply being confirmed at the time of disposition." The 2018 sentencing order states that Christopher "must register as a sex offender pursuant to A.R.S. § 13-3821."
¶6 In 2021, Christopher filed a motion for clarification of sentence and correction of a clerical error in the 2018 sentencing document. She asked the trial court to clarify that in 2015, it had "ordered [her] to register as a sex offender only while she was on probation and not thereafter." Christopher also asked the court "to enter an order deleting the portion of" the 2018 sentencing order "regarding sex offender registration because it is contrary to what the Court actually ordered during the oral pronouncement of sentence." The court denied her motion, reasoning it had lacked the authority, in 2015, to impose a registration requirement limited to the term of Christopher's probation, and instead only had the discretion to impose registration for life or not at all. This appeal followed.
Discussion
¶7 "[W]e have an independent duty to examine and confirm our appellate jurisdiction." State v. Serrano, 234 Ariz. 491, ¶ 4 (App. 2014). Section 13-4033(A)(3), A.R.S., provides that a defendant may appeal from an "order made after judgment affecting the substantial rights of the party." However, the right to appeal is restricted by § 13-4033(B), which precludes a direct "appeal from a judgment or sentence that is entered pursuant to a plea agreement." See State v. Jimenez, 188 Ariz. 342, 344 (App. 1996). This subsection "does not bar an appeal from a post-judgment order when the issue raised is 'not one that effectively challenges the plea agreement or sentence.'" Fisher v. Kaufman, 201 Ariz. 500, ¶ 5 (App. 2001) (quoting State v. Delgarito, 189 Ariz. 58, 59 (App. 1997)).
¶8 Christopher asserts she "is not appealing from anything ordered in 2015 or 2018" because the "discretionary" requirement of "permanent sex offender registration was not imposed in 2015 when [she] was placed on probation" or "in 2018 when her probation was revoked." Under § 13-3821(A)(16), a "person who has been convicted of . . . a violation or attempted violation" of a "second or subsequent violation of public sexual indecency to a minor under the age of fifteen years pursuant to § 13-1403, subsection B" is required to register as a sex offender. This registration requirement is automatic, mandatory, and continues for the lifetime of the offender. Serrano, 234 Ariz. 491, ¶ 7 (§ 13-3821 "automatically imposes registration requirements on individuals convicted of the criminal offenses set forth in" § 13-3821(A)); Fisher, 201 Ariz. 500, ¶¶ 10, 12-13 (registration under § 13-3821(A) is a lifetime requirement).
We cite the current version of § 13-3821 because no revisions material to this decision have since occurred. See 2012 Ariz. Sess. Laws, ch. 23, § 5; 2015 Ariz. Sess. Laws, ch. 22, § 1.
¶9 Christopher, therefore, was required to register as a sex offender when she pled guilty to two counts of attempted public sexual indecency to a minor under the age of fifteen in 2015. By pleading guilty to these two counts, Christopher was convicted of a "second or subsequent violation" as described in § 13-3821(A)(16). Although § 13-3821(C) gives the trial court "discretion to order registration for offenses other than those enumerated in subsection A," and § 13-3821(D), (F), and (M) limit the "duration of registration" in certain circumstances, none of these subsections apply here. Fisher, 201 Ariz. 500, ¶ 9. And, even though the court may have incorrectly believed at the 2015 sentencing hearing that Christopher's sex-offender registration could later be modified or terminated pursuant to §§ 13-3821(H) and 13-923-which, in fact, apply only to "a probationer who is under twenty-two years of age and who was convicted of an offense that occurred when the person was under eighteen years of age"-it lacked discretion to impose anything less than lifetime registration under § 13-3821(A). See Fisher, 201 Ariz. 500, ¶¶ 11-13; Serrano, 234 Ariz. 491, ¶ 7. Because the lifetime-registration requirement was automatically imposed as a result of Christopher's plea agreement, she is "precluded from direct appellate review." Fisher, 201 Ariz. 500, ¶ 6.
¶10 Alternatively, Christopher argues the trial court's 2015 imposition of "registration solely as a condition of probation" was "illegally lenient." She asserts that because the state failed to timely challenge the order under Rule 24.3, Ariz. R. Crim. P., it is "binding" pursuant to Chaparro v. Shinn, 248 Ariz. 138 (2020), and she is therefore "entitled to its benefits." We disagree. In State v. Young, 112 Ariz. 361, 363 (1975), our supreme court stated that a trial court does not need to advise a pleading defendant of the sex-offender-registration requirement because it is a collateral provision of a sentence, suggesting it is automatically required regardless of a court's sentencing order. But assuming without deciding that a court can impose an illegally lenient sex-offender-registration requirement that then constitutes a binding sentence if not timely challenged, here, the registration requirement was not illegally lenient. The court ordered Christopher to register as a sex offender during the 2015 sentencing hearing and only suggested the possibility of discontinuing the registration requirement if Christopher successfully completed probation early-and this possibility never arose because Christopher violated her probation. And, to the extent the written sentencing order conflicts with the oral pronouncement at the hearing, the oral pronouncement controls, and appropriately required sex-offender registration. See State v. Ovante, 231 Ariz. 180, ¶ 38 (2013).
¶11 Further, assuming we could exercise our discretion to accept jurisdiction of this matter as a special action, we decline Christopher's request to do so. See Lincoln v. Holt, 215 Ariz. 21, ¶ 3 (App. 2007) (special-action jurisdiction is discretionary). Even if we were to accept special-action jurisdiction, Christopher's requested relief is not warranted because, as discussed above, sex-offender registration under § 13-3821(A) is automatic, mandatory, and for life. See Fisher, 201 Ariz. 500, ¶¶ 8, 11-13; Serrano, 234 Ariz. 491, ¶ 7.
Disposition
¶12 For the foregoing reasons, we lack appellate jurisdiction and decline special-action jurisdiction. Accordingly, we dismiss Christopher's appeal.