Court of Appeals of Arizona, First Division, Department B
Appeal from the Superior Court in Maricopa County Cause Nos. CR2010-145260-001 & CR2007-006213-001
Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals and Liza-Jane Capatos, Assistant Attorney General
Attorneys for Appellee James J. Haas, Maricopa County Public Defender Phoenix By Charles R. Krull, Deputy Public Defender Attorneys for Appellant
The Honorable Joseph C. Kreamer, Judge
PATRICIA K. NORRIS, Presiding Judge
¶1 The issue in this appeal is whether a probationer's unauthorized removal of an electronic monitoring device, required as a condition of probation, constitutes escape in violation of Arizona Revised Statute ("A.R.S.") section 13- 2503(A)(2) (Supp. 2012). We hold it does not. Accordingly, we reverse Justin Scott Kendrick's conviction for escape, vacate the superior court's finding that he violated his probation, and remand for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL BACKGROUND
¶2 In 2008, Kendrick pled guilty in Maricopa County Superior Court Cause No. CR2007-006213-001 to attempted molestation of a child and sexual abuse, both class three felonies and dangerous crimes against children ("2007 case"). Pursuant to his plea agreement, the superior court suspended imposition of sentence on each count and placed Kendrick on lifetime probation. As a condition of probation and as required by A.R.S. § 13-902(G) (Supp. 2012), the superior court subjected Kendrick to global positioning system ("GPS") monitoring for the term of his probation ("monitoring order").
¶3 In July 2010, a probation officer petitioned to revoke Kendrick's probation, alleging he had violated his probation by, inter alia, interfering with the electronic monitoring device in violation of A.R.S. § 13-3725 (2010), absconding, and failing to comply with GPS monitoring as required by A.R.S. § 13-902(G). Subsequently, and as relevant here, in Maricopa County Superior Court Cause No. CR2010-145260-001, a grand jury indicted Kendrick for escape in the second degree, a class five felony ("2010 case") . A.R.S. § 13-2503(A)(2), (B). The petition to revoke Kendrick's probation and escape charge arose out of his failure to wear a GPS monitoring device ("GPS unit") on his ankle pursuant to the court's monitoring order.
¶4 A jury found Kendrick guilty of escape. The superior court sentenced Kendrick to a prison term for escape, and found he had violated his probation in the 2007 case based on his conviction in the 2010 case. The court reinstated Kendrick on lifetime probation to begin after his release from prison.
¶5 On appeal, Kendrick argues the superior court should have granted his motion for judgment of acquittal on the escape charge because the State failed to prove he had committed a "departure from custody . . . with knowledge that such departure [was] unpermitted" in violation of A.R.S. § 13-2501(4) (Supp. 2012). Although Kendrick acknowledges he was required to wear the GPS unit as a condition of probation, he argues that requirement did not "constitute the constructive restraint sufficient to satisfy the definition of custody" in A.R.S. § 13-2501(3), the statute that defines "custody" for purposes of escape. Reviewing these arguments de novo, we agree. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011) (appellate court reviews ruling on motion for judgment of acquittal de novo); State v. Stauffer, 203 Ariz. 551, 554, ¶ 8, 58 P.3d 33, 36 (App. 2002) (appellate court reviews issues of statutory construction and interpretation de novo).
¶6 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). Under A.R.S. § 13-2501(4), 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).
¶7 We have addressed the meaning of "custody" in two cases where, as here, the defendant removed an electronic monitoring device. But in each case, in addition to removing the device, the defendant also violated a court order that subjected the defendant to home detention. Thus, in State v. Williams, 186 Ariz. 622, 925 P.2d 1073 (App. 1996), we held the defendant had violated A.R.S. § 13-2503(A)(2) by removing an electronic monitoring device and departing from home detention without authorization. There, we explained: "Defendant's removal of the electronic monitoring device and unauthorized departure from his home and Arizona constitute[d] an act of departing from court-ordered custody." Id. at 623, 925 P.2d at 1074. Similarly, in In re Brittany Y., 214 Ariz. 31, 32, ¶ 9, 147 P.3d 1047, 1048 (App. 2006), we held a juvenile had violated A.R.S. § 13-2502(A) (2001) by removing an ...