Opinion
2 CA-CR 2022-0031-PR
07-05-2022
Laura Conover, Pima County Attorney By Tai Summers, Deputy County Attorney, Tucson Counsel for Respondent Megan Page, Pima County Public Defender By Sarah L. Mayhew, Assistant Public Defender, Tucson Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County Nos. CR20112897001, CR20114010001, and CR20143307001 The Honorable Deborah Bernini, Judge
Laura Conover, Pima County Attorney By Tai Summers, Deputy County Attorney, Tucson Counsel for Respondent
Megan Page, Pima County Public Defender By Sarah L. Mayhew, Assistant Public Defender, Tucson Counsel for Petitioner
Vice Chief Judge Staring authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred.
MEMORANDUM DECISION
STARING, VICE CHIEF JUDGE
¶1 David Sassaman seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 33, Ariz. R. Crim. P. We grant review and partial relief.
¶2 Sassaman, who is required to register as a sex offender, pled guilty in CR20112897 to attempted failure to give notice of a change of address and in CR20114010 to failure to give notice of a change of address, violating A.R.S. § 13-3822(A). The trial court sentenced him to a one-year prison term in one cause number and, in the other, suspended the imposition of sentence and placed Sassaman on a three-year probation term. He later pled guilty in CR20143307 to failure to give notice of a change of address. The court sentenced Sassaman to a 2.5-year prison term in CR20143307, revoked his probation, and imposed a sentence of time served.
In another cause number, Sassaman pled guilty to facilitation to promote prison contraband and was sentenced to a 2.25-year prison term, to be served concurrently with his prison term in CR20143307.
¶3 In December 2019, Sassaman filed notices of post-conviction relief in each cause number, asserting State v. Burbey, 243 Ariz. 145 (2017), was a significant change in the law applicable to his convictions. In his subsequent petition addressing all three cause numbers, Sassaman asserted that, because he was homeless at the time of each of his convictions, he had not violated § 13-3822(A). Relying on Burbey, he argued he had ninety days-rather than only seventy-two hours-to register as a transient. He characterized this claim as one of actual innocence under Rule 33.1(h) rather than a significant change in the law under Rule 33.1(g). He additionally argued his conviction in CR20112897 was for a "noncognizable" offense because there was no distinction between "attempted" failure to register and failure to register.
Sassaman's only previous notice of post-conviction relief was filed in CR20112897 in 2014 and was dismissed as untimely.
¶4 The state argued Sassaman's petition was untimely, as Burbey had been decided in 2017, and Sassaman did not seek relief until 2019 and provided no explanation for his delay. It also argued Sassaman was not entitled to relief under Rule 33.1(h) because he could not show "he would have been innocent under the law as it was understood at the time of his conviction" and, further, Burbey's holding did not apply to his conviction in CR20143307 because he had not been homeless, but instead had "moved from one residence to another and failed to register his new address." Lastly, the state argued Burbey was not a significant change in the law.
¶5 The trial court summarily dismissed the petition. It first concluded Sassaman's notices of post-conviction relief were not timely and he had not demonstrated "why the noncompliance should be excused." It further determined that, at the time of Sassaman's convictions, § 13-3822 was "understood" to obligate a person required to register as a sex offender, like Sassaman, to register within seventy-two hours of transitioning "from a residence to being homeless." It also agreed with the state that "[according to the undisputed facts" underlying his conviction in CR20143307, "he moved from one residence to another and failed to register his new address." And, the court determined Burbey was not a significant change in the law. This petition for review followed.
¶6 On review, Sassaman first argues the trial court erred in finding his notice untimely in light of State v. Reed, 252 Ariz. 236 (App. 2021). The state concedes the point. There is no set time limit for post-conviction claims raised under Rule 33.1(b) through (h); instead, a defendant must raise such claims "within a reasonable time after discovering the basis for the claim." Ariz. R. Crim. P. 33.4(b)(3)(B). Additionally, such defendants are required to provide "sufficient reasons" why the claim had not been raised "in a previous notice or petition, or in a timely manner." Ariz. R. Crim. P. 33.2(b)(1).
¶7 In Reed, the defendant sought post-conviction relief under Rule 33.1(c) and (h) in a successive petition filed nearly four years after he had been placed on probation. 252 Ariz. 236, ¶ 4. The trial court rejected the petition as untimely. Id. Another panel of this court granted relief on review, concluding "the passage of time alone cannot preclude relief" on claims under Rule 33.1(c) or (h) and the trial court should instead consider, among other things, "the consequences of a failure to address the merits of the claim and the prejudice to the State or victim." Id. ¶ 14. Noting the state had not "assert[ed] prejudice," the court concluded "that when a defendant pleads guilty to an offense not cognizable under Arizona law, an illegal-sentence claim under Rule 33.1(c) or actual-innocence claim under Rule 33.1(h) is not time-barred if there is no evidence presented beyond the mere passage of time to suggest unreasonable delay." Id. ¶¶ 14-15.
¶8 We question our colleagues' analysis in Reed. Notably, Rule 33.2(b)(1) requires a defendant to "explain the reasons for not raising the claim in a previous notice or petition, or for not raising the claim in a timely manner." If that explanation is not "sufficient," the trial court may summarily dismiss the proceeding. Id. Absent any such explanation, there is no basis to conclude a defendant, as required by Rule 33.4(b)(3)(B), brought a claim "within a reasonable time" after discovering it. See also State v. Pope, 130 Ariz. 253, 256 (1981) (defendant has "heavy burden in showing the court why the non-compliance should be excused"). However, because the state asks us to apply Reed, we accept its concession that Sassaman's unexplained two-year delay in bringing this claim is "reasonable." Cf. In re Navajo Cnty. Juv. Action No. J-3206, 121 Ariz. 407, 408 (App. 1979) (in criminal or quasi-criminal cases, we may reverse without deciding merits where debatable issue is raised and state implicitly concedes error).
¶9 Sassaman next asserts the trial court erred by denying relief on the merits of his claims. As below, his argument centers on our supreme court's analysis of § 13-3822(A) in Burbey. At the time of Sassaman's offenses, § 13-3822(A) required a person mandated to register as a sex offender to "inform the sheriff in person and in writing of the person's new residence" within seventy-two hours of "moving from the person's residence within a county or after changing the person's name." 2012 Ariz. Sess. Laws, ch. 23, § 2; see also 2007 Ariz. Sess. Laws, ch. 84, § 2. However, a person who "does not have an address or a permanent place of residence" needed only to "register as a transient not less than every ninety days with the sheriff in whose jurisdiction the transient is physically present." Id.
Section 13-3822(A) has since been amended to require a person to register within seventy-two hours of transitioning from a permanent residence to a temporary residence or transient status. 2021 Ariz. Sess. Laws, ch. 444, § 2.
¶10 In Burbey, our supreme court concluded that version of § 13-3822(A) was ambiguous - it could be interpreted to require a person to register within seventy-two hours of becoming transient or to only require that person to register as a transient within ninety days. 243 Ariz. 145, ¶ 9. But, reading the statute "as a whole," the court determined a homeless person need not provide notice within seventy-two hours because "no residence exists to report." Id. ¶ 12. The court further observed that a contrary reading of the statute could provide inadequate notice of what conduct would violate the law and thus raise constitutional concerns. Id. ¶¶ 16-17.
¶11 Sassaman argues that Burbey 's reasoning renders his convictions improper. The state agrees as to his convictions in CR20112897 and CR20114010. The trial court did not find otherwise but instead declined to apply Burbey to Sassaman's claim under Rule 33.1(h) because it had not been decided at the time of those offenses. Thus, the court reasoned, it was not the law "as it was understood at the time of his conviction" and a jury would have convicted Sassaman under § 13-3822(A).
¶12 To prevail under Rule 33.1(h), Sassaman was required to "demonstrate[] by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find [him] guilty of the offense beyond a reasonable doubt." The parties agree that Sassaman was only required to register as a transient at the time of his offenses in CR20112897 and CR20114010 and he is factually innocent of violating the seventy-two-hour-registration requirement of the version of § 13-3822(A) in effect at the time. We again accept the state's concession. Cf. In re Navajo Cnty. Juv. Action No. J-3206, 121 Ariz. at 408.
We thus need not reach Sassaman's argument that attempted failure to register as a sex offender is not a cognizable offense.
¶13 But the trial court also determined that, even if Burbey applied, Sassaman's conviction in CR20143307 was nonetheless valid. The court concluded that, unlike in the previous cause numbers, Sassaman "was not homeless, he simply failed to register." Sassaman argues, however, that he had become homeless after leaving his mother's residence on June 2, 2014, and, despite reporting to a law enforcement officer on June 11 that he was staying with a friend, was homeless when he turned himself in on July 28.
¶14 Record evidence for Sassaman's claim of homelessness is scant. For example, although he cites a police report for the fact that he was homeless when he turned himself in, the report does not reflect that fact. It states only that Sassaman reported he was hungry and wanted to turn himself in. Indeed, the only evidence of Sassaman's status was his own statement that he was staying at a residence. Although Sassaman identifies some evidence calling that statement into doubt, a jury could accept it as true-particularly in the absence of evidence that Sassaman had become homeless in the interim. In short, Sassaman has not demonstrated that no reasonable jury could find him guilty of that offense.
¶15 We grant review and partial relief. We vacate Sassaman's convictions for attempted failure to register as a sex offender in cause number CR20112897 and for failure to register as a sex offender in cause number CR20114010. We otherwise deny relief.