Opinion
No. 2 CA-CR 2013-0385
03-31-2014
THE STATE OF ARIZONA Appellee, v. EDWARD OWEN DOUST, Appellant.
Bradley B. Beauchamp, Gila County Attorney, Globe By June Ava Florescue, Deputy County Attorney Counsel for Appellee Edward Owen Doust, Florence In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Gila County
No. CR990813
The Honorable Gary V. Scales, Judge Pro Tempore
AFFIRMED
COUNSEL
Bradley B. Beauchamp, Gila County Attorney, Globe
By June Ava Florescue, Deputy County Attorney
Counsel for Appellee
Edward Owen Doust, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 After pleading guilty to transportation of marijuana for sale and two counts of aggravated driving under the influence of an intoxicant (DUI) in 2000, Edward Doust was sentenced to several presumptive, concurrent terms, the longest of which was 15.75 years. In February 2013, in anticipation of his impending release from prison, Doust filed a motion with the trial court seeking injunctive relief precluding the attorney general, the county attorney, and the Arizona Department of Corrections (ADOC) from requiring him to register as a sex offender. In this pro se appeal, he challenges the court's denial of that motion, arguing it erred in its application of the registration statute and analysis of his constitutional claims.
Factual and Procedural Background
¶2 In December 1999, Doust was indicted on several drug-related charges, two counts of aggravated DUI, one count of custodial interference, and one count of child abuse. He accepted a plea agreement and ultimately was convicted and sentenced as set forth above. At sentencing, the state alleged four prior historical felony convictions, including a 1974 conviction in Minnesota for sexual intercourse with a child. Doust's plea agreement on the Arizona charges did not impose any requirement that he register as a sex offender in Arizona.
¶3 Thirteen years after entering his guilty plea in Arizona, while still incarcerated, Doust filed a motion with the trial court seeking to preclude the "Arizona State Attorney General, the Gila County Attorney, the Arizona Department of Corrections and its Director," and "any other Arizona State or County law enforcement agency" from requiring him to register as a sex offender pursuant to A.R.S. § 13-3821. The court denied this motion, ruling that (1) Doust's Minnesota conviction constituted a registrable offense pursuant to § 13-3821(A), (2) he was not entitled to a jury trial on the question of registration, and (3) sex-offender registration did not violate Doust's constitutional right to be free from ex post facto laws. The court also denied Doust's subsequent motion for reconsideration.
Doust indicated in his opening brief that he was scheduled to be released from prison in October 2013, but ADOC records indicate he still is incarcerated.
Discussion
¶4 Although neither party has addressed the form taken by Doust's motion, we do so here because our jurisdiction is premised on the proper characterization of his request for relief. While Doust's Minnesota conviction undoubtedly played a role in his sentencing, the facts surrounding his prior conviction and sentence were nevertheless collateral to the Arizona proceeding and his challenge to the application of § 13-3821 could not be asserted properly under Rule 32, Ariz. R. Crim. P., as none of the convictions or sentences imposed by the trial court implicated registration as a sex offender. See Ariz. R. Crim. P. 32.1(a)-(h) (detailing grounds for post-conviction relief pursuant to Rule 32). Indeed, Doust served his motion for injunctive relief on two additional parties, the Arizona Attorney General and ADOC, evincing awareness that his request exceeded the scope of the proceedings in CR990813.
¶5 Doust's request for equitable relief, although not cognizable under Rule 32, could have been brought as an independent action for declaratory judgment. See A.R.S. §§ 12-1831 through 12-1846 (Uniform Declaratory Judgments Act); see also Ariz. Dep't of Pub. Safety v. Superior Court, 190 Ariz. 490, 949 P.2d 983 (App. 1997) (reviewing declaratory judgment in favor of sex offenders who had asserted constitutional challenge to registration statute); 2 Daniel J. McAuliffe & Shirley J. Wahl, Ariz. Prac., Civil Trial Practice § 9.6 (2d ed. 2001) (declaratory judgment "affords a party the opportunity to determine his . . . legal rights without subjecting himself . . . to a penalty for violation of a law"). Accordingly, in our discretion, we review it as such here, see Behavioral Health Agency of Cent. Ariz. v. City of Casa Grande, 147 Ariz. 126, 128-29, 708 P.2d 1317, 1319-20 (App. 1985) (treating action on appeal as one for both declaratory and special action relief), and we employ a de novo standard appropriate for actions seeking declaratory relief, see, e.g., Robson Ranch Mountains, L.L.C. v. Pinal County, 203 Ariz. 120, ¶ 13, 51 P.3d 342, 347 (App. 2002) (applying de novo standard of review to trial court's denial of declaratory and injunctive relief).
¶6 It is well settled that an action for declaratory relief must be based on an existing state of facts, not facts that may arise in the future. See Moore v. Bolin, 70 Ariz. 354, 357, 220 P.2d 850, 852 (1950); Am. Fed'n of State, Cnty. & Mun. Emps. v. Lewis, 165 Ariz. 149, 152, 797 P.2d 6, 9 (App. 1990); see also Land Dep't v. O'Toole, 154 Ariz. 43, 47, 739 P.2d 1360, 1364 (App. 1987) ("To vest a court with declaratory judgment jurisdiction, . . . claimant must show sufficient facts to establish a controversy which is real and not merely colorable."). Arizona's registration statute requires an individual convicted of a qualifying offense in another jurisdiction to register "within ten days after entering and remaining in any county of this state." § 13-3821(A). Doust has not alleged—nor does our record establish—that he spent ten consecutive days in Arizona before his imprisonment. Indeed, he characterizes his motion in the lower court as a "prophylactic measure against potential violations of his rights and privileges."
While § 13-3821(A) does not expressly exclude time spent in custody, subsection B requires the department of public safety and county sheriff to complete the registration of any person convicted of an enumerated Arizona offense "[b]efore the person is released from confinement." Had the legislature intended this ten-day period to run during an inmate's confinement, registration would have been mandated prior to release. See State v. Mohajerin, 226 Ariz. 103, ¶ 10, 244 P.3d 107, 110-11 (App. 2010) (courts determine legislative intent by reading statute as a whole, giving meaningful operation to all provisions). Moreover, the primary purpose of § 13-3821 is to facilitate law enforcement's location of juvenile sex offenders. State v. Noble, 171 Ariz. 171, 179, 829 P.2d 1217, 1225 (1992) ("overriding purpose" of § 13-3821 is facilitating location of child sex offenders); see also State v. Henry, 224 Ariz. 164, ¶ 16, 228 P.3d 900, 905 (App. 2010) (citing Noble); In re Maricopa Cnty. Juv. Action No. JV-132744, 188 Ariz. 180, 183, 933 P.2d 1248, 1251 (App. 1996) (same). This rationale would not apply during incarceration.
¶7 Nor has Doust evinced any intention to remain in Arizona after his release from prison. On the contrary, in a separate motion to quash monetary assessments, he represented to the court that, upon release, he "will be residing with his brother in Brainerd[,] Minnesota." The absence of any evidence that Doust intends to remain in Arizona after his release from prison renders any application of § 13-3821 too speculative to warrant relief under § 12-381, particularly where, as here, Doust has not presented any evidence that state officials have sought to require him to register. See Lewis, 165 Ariz. at 153, 797 P.2d at 10 (dismissal of declaratory action appropriate where facts "simply premature and too speculative"). And, absent the existence of a present controversy ripe for adjudication, we need not reach the merits of Doust's claims. Accordingly, we conclude the trial court properly denied relief, albeit on other grounds, because Doust failed to present a justiciable controversy. See State v. Boteo-Flores, 230 Ariz. 551, ¶ 7, 288 P.3d 111, 113 (App. 2012) (appellate court will uphold ruling if correct for any reason).
Given our resolution of this appeal, we need not address Doust's failure to comply with the relevant procedural requirements. See § 12-841(A) (any declaratory action challenging constitutionality of statute must be served upon "the attorney general and the speaker of the house of representatives and the president of the senate").
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Disposition
¶8 Pursuant to the foregoing analysis, the trial court's order denying Doust's motion for injunctive relief is affirmed.