Opinion
No. 1 CA-CR 13-0503
06-26-2014
STATE OF ARIZONA, Appellee, v. AYATOLLAH KHOEMENI HARRISON, Appellant.
Arizona Attorney General's Office, Phoenix By Eliza C. Ybarra Counsel for Appellee Maricopa County Office of the Legal Advocate, Phoenix By Colin F. Stearns Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2012-142385-001
The Honorable Edward W. Bassett, Judge
AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART
COUNSEL
Arizona Attorney General's Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee
Maricopa County Office of the Legal Advocate, Phoenix
By Colin F. Stearns
Counsel for Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Michael J. Brown joined.
THOMPSON:
¶1 Ayatollah Khoemeni Harrison appeals from his convictions and sentences for escape in the second degree and interference with a monitoring device. Harrison contends there is insufficient evidence to support his conviction for escape, and that the trial court erred in ordering that he pay the cost of DNA testing as part of his sentences. For the reasons that follow, we affirm the conviction for interference with a monitoring device, reverse the conviction for escape, and vacate the order directing payment of the cost of DNA testing.
FACTS AND PROCEDURAL HISTORY
¶2 The relevant facts are not disputed. Harrison was sentenced to prison on drug related charges in 2007. After serving eight-five percent of his sentence, Harrison was eligible for release on community supervision. See Ariz. Rev. Stat. (A.R.S.) § 41-1604.07 (2011). On June 18, 2012, Harrison was released from prison to begin his term of community supervision. Before being released, Harrison was required to sign a Conditions of Supervision and Release in which he agreed to comply with specified conditions, which included maintaining contact with his supervising parole officer and following all directives given, either oral or written. Among other standard conditions agreed to by Harrison were that he obtain approval from his parole officer before changing his residence, obey all laws, not possess firearms, alcohol or drugs, and submit to a search at anytime with or without a warrant.
Technically, the legislature eliminated the possibility for parole from prison for crimes committed after January 1, 1994, and replaced it with eligibility for "community supervision." State v. Rosario, 195 Ariz. 264, 268, ¶ 26, 987 P.2d 226, 230 (App. 1999). Nevertheless, officers assigned to supervise offenders released on community supervision continue to be referred to as parole officers and these officers use the terms "community supervision" and "parole" interchangeably.
¶3 In addition to the standard conditions, Harrison agreed to be subject to electronic GPS monitoring. The monitoring required that he wear a tracking device attached to his ankle that electronically reported his location. The terms of the electronic monitoring included that Harrison would "remain within my specified inclusion zones or out of my specified exclusion zones as directed by my Supervising Officer and abide by any and all curfews imposed by my Supervising Officer." Harrison also agreed to the special condition of supervision that he "shall maintain a daily home curfew of 9:00 PM thru 5:00 AM unless given parole officer's permission otherwise." Harrison was informed both orally and in writing that it is a class 4 felony for him to interfere with, bypass and/or remove the electronic monitoring device.
¶4 On the first three evenings of his release, the GPS tracker showed multiple home violations, meaning that Harrison had failed to remain in his designated home area. He further failed to submit to urinalysis testing on June 24 and June 25 as directed. On June 26, Harrison's parole officer spoke to Harrison by telephone and directed him to report to the parole office to see the officer's supervisor because of non-compliance with the conditions of supervision. Within ten minutes after the call, the parole officer received notification of a "strap violation," indicating the strap on Harrison's GPS monitoring device had been cut. The monitoring device was found later that day abandoned at a construction site. A warrant was issued for Harrison's arrest and he was apprehended one and a half months later outside his "allowed zone."
¶5 Harrison was indicted on one count of escape in the second degree, a class 5 felony, and one count of interfering with a monitoring device, a class 4 felony. The State also alleged that Harrison had multiple prior felony convictions and that he committed the charged offenses while on release. A jury found Harrison guilty of both offenses as charged. Based on Harrison's admissions to his prior felony convictions, the trial court sentenced him as a repetitive offender to concurrent presumptive terms of imprisonment of five years on the conviction for escape and ten years on the conviction for interfering with a monitoring device. In addition, the trial court ordered Harrison to submit to DNA testing and pay the cost of that testing. Harrison timely appealed.
DISCUSSION
¶6 Harrison contends there is insufficient evidence to support his conviction for escape. Specifically, he argues that the evidence failed to establish that he departed from "custody" as that term is used in the applicable statutes. We review claims of insufficient evidence de novo. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). Statutory construction and interpretation are questions of law that are likewise subject to de novo review. In re Aaron M., 204 Ariz. 152, 153, ¶ 2, 61 P.3d 34, 35 (App. 2003). Although Harrison did not raise this particular argument when he moved for judgment of acquittal at trial, a conviction based on insufficient evidence constitutes fundamental error. State v. Stroud, 209 Ariz. 410, 412 n.2, ¶ 6, 103 P.3d 912, 914 n.2 (2005).
¶7 In interpreting a statute, our goal is "to fulfill the intent of the legislature that wrote it." Bilke v. State, 206 Ariz. 462, 464, ¶ 11, 80 P.3d 269, 271 (2003) (quoting State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993). "[T]he best and most reliable index of a statute's meaning is its language and, when the language is clear and unequivocal, it is determinative of the statute's construction." State v. Hansen, 215 Ariz. 287, 289, ¶ 7, 160 P.3d 166, 168 (2007) (quoting Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 296, ¶ 8, 152 P.2d 490, 493 (2007).
¶8 As charged in this case, a person commits escape in the second degree by knowingly "[e]scaping or attempting to escape from custody imposed as a result of having been arrested for, charged with or found guilty of a felony." A.R.S. § 13-2503(A)(2) (2010). Under A.R.S. § 13-2501(4) (2010), and as relevant here, "'[e]scape' means departure from custody . . . with knowledge that such departure is unpermitted." In turn, "'[c]ustody' means the imposition of actual or constructive restraint pursuant to an on-site arrest or court order . . . ." A.R.S. § 13-2501(3).
¶9 In State v. Kendrick, 232 Ariz. 428, 431, ¶ 13, 306 P.3d 85, 88 (App. 2013), this court reversed a conviction for escape, holding that the defendant did not commit a departure from "custody" by removing a GPS monitoring device required as a court-ordered condition of probation. In reaching this conclusion, the court distinguished two earlier cases upholding convictions for escape involving the removal of monitoring devices. Id. at 430-31, ¶¶ 7-8, 306 P.3d at 87-88 (distinguishing In re Brittany Y., 214 Ariz. 31, 147 P.3d 1047 (App. 2006) and State v. Williams, 186 Ariz. 62, 925 P.2d 1073 (App. 1996)). In those cases, in addition to removing the monitoring devices, the defendants also violated court orders that mandated home detention. Brittany Y., 214 Ariz. at 31-32, ¶¶ 3-4, 147 P.3d at 1047-48; Williams, 186 Ariz. at 63, 925 P.2d at 1074. It was the departure from the court-ordered home detention in Brittany Y. and Williams that supported the convictions for escape, not the removal of the monitoring devices. The removal of the GPS monitoring device by itself does not to constitute a departure from custody because the device does not control, limit or restrict a person's movements; it merely allows for monitoring the person's whereabouts. See Kendrick, 232 Ariz. at 431, ¶ 13, 306 P.3d at 88.
¶10 The State argues all elements of the offense of escape in violation of A.R.S. § 13-2503(A)(2) are present in the instant case because, in contrast with the conditions of probation in Kendrick, the conditions of Harrison's release on community service did restrict his movements and evidence was presented that he violated those restrictions. Although the State is correct that the Conditions of Supervision and Release agreement placed restrictions on Harrison's movements, the flaw in the State's argument is that the release restrictions were not imposed pursuant to court order. The Arizona Department of Corrections (DOC) released Harrison from prison in accordance with A.R.S. § 41-1604.07 to permit him to serve his term of community supervision. Unlike the home detentions in Brittany Y. and Williams, the terms and conditions of community supervision applicable to Harrison were not the subject of any court order, but rather established by the DOC in compliance with its statutory responsibility "to ensure that the best interests of the prisoner and the citizens of this state are served" when releasing a prisoner on community supervision. A.R.S. § 41-1604.07(F). Both the inclusion and exclusion zones and the curfew restricting Harrison's movements while on community supervision were set by and subject to modification by Harrison's parole officer without input from any court. Thus, Harrison's violations of those release conditions while on community supervision were not a departure from "imposition of actual or constructive restraint pursuant to [a] . . . court order." A.R.S. § 13-2501(3).
¶11 We reject the State's argument that "court-ordered restraint" can be found based on the trial court committing Harrison to the custody of the DOC when he was sentenced on his convictions in 2007. In imposing sentence, the trial court did not direct that Harrison be subject to any particular restraint when released by the DOC to serve his term of community supervision. Indeed, sentencing courts have no role in the conditions of community supervision for persons released from prison as responsibility for that is statutorily placed entirely on the DOC. A.R.S. §§ 41-1604(A)(3), -1604.07(F). "Upon entry of a final judgment and sentence of imprisonment, legal authority over the accused passes by operation of law to the Department of Corrections," and that executive agency "bear[s] full responsibility for executing the judgment and sentence as well as determining the terms and conditions upon which parole may be granted." State v. Wagstaff, 164 Ariz. 485, 488-89, 794 P.2d 118, 121-22 (1990); see also State v. Collins, 122 Ariz. 550, 551-52, 596 P.2d 385, 386-87 (App. 1979) (holding that although the juvenile court had authority to commit juvenile to DOC, the juvenile court had no authority to direct the nature of juvenile's commitment or subsequently order that the juvenile be released from DOC).
¶12 Because no evidence was presented that Harrison departed from "custody" as defined by A.R.S. § 13-2501(3) when he removed the monitoring device or failed to comply with the other conditions of his community supervision, we reverse the judgment of guilt entered against him on the escape charge. In the absence of any challenge by Harrison to the conviction for interference with a monitoring device based on his unauthorized removal of the GPS tracking device, we further affirm the judgment of guilt on that charge.
¶13 Harrison also argues, and the state concedes, that the trial court erred in ordering Harrison to pay the applicable fee for the cost of DNA testing pursuant to A.R.S. § 13-610 (2010). We agree. There is no basis in the law for a court to order a convicted defendant to directly pay the testing fee. State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013). Accordingly, we vacate the order that Harrison pay the cost of DNA testing.
CONCLUSION
¶14 For the foregoing reasons, we affirm Harrison's conviction for interference with a monitoring device, but reverse the conviction for escape and vacate the sentencing order directing payment of the cost of DNA testing.