Petition for Special Action from the Superior Court in
Maricopa County No. CR1999-006656-A The Honorable Susanna C.
Maricopa County Public Defender's Office, Phoenix By
Tennie B. Martin, Kevin D. Heade, Nicholaus Podsiadlik
Co-Counsel for Petitioner
M. Liles, Attorney at Law, Phoenix By Vikki M. Liles
Co-Counsel for Petitioner
Maricopa County Attorney's Office, Phoenix By Karen
Kemper Counsel for Real Party in Interest
Presiding Judge Maria Elena Cruz delivered the opinion of the
Court, in which Judge Jennifer B. Campbell and Judge James P.
Felipe Petrone Cabanas seeks special action review of the
superior court's rulings granting reconstruction of his
2002 sentencing proceeding and ordering him to disclose his
mental health and medical records to the State as part of his
post-conviction relief proceedings. We hold that Cabanas'
defense of transient immaturity does not, by itself, place
his mental health at issue such that the State is entitled to
have access to his medical and mental health records over his
We accept jurisdiction and grant relief, vacating the
superior court's disclosure order. We also separately
hold that no reconstruction hearing is necessary because the
court's determination as to whether Cabanas' offense
was the result of transient immaturity or irreparable
corruption must be made based on evidence admitted at an
upcoming evidentiary hearing, and not based on consideration
of the previous sentencing judge's thought processes
outside of his written orders. Accordingly, we vacate the
order setting such hearing.
AND PROCEDURAL HISTORY
In 2001, Cabanas pled guilty to first-degree murder for the
killing of a police officer. Cabanas was 17 years, 8 months
old at the time of the murder. During sentencing, the court
considered Cabanas' age, level of intelligence, maturity,
and other mitigating factors in a twenty-nine-page special
verdict. The court specifically considered Cabanas'
"juvenile impulsivity." Dr. Barillas, the
psychologist that evaluated Cabanas prior to sentencing,
presented mitigating evidence that Cabanas acted with
"significant impulsivity." Determining that
mitigation compelled against imposition of the death penalty,
the court imposed a term of natural life in prison without
the possibility of release.
In 2013, Cabanas initiated post-conviction relief proceedings
in light of Miller v. Alabama, 567 U.S. 460 (2012).
The superior court denied Cabanas' request on the grounds
that his natural-life sentence was not mandatory, "but
instead was imposed after the sentencing court had considered
[Cabanas'] age and other mitigating factors."
State v. Cabanas, 2017 WL 3599595, at *1, ¶ 5
(Ariz. App. Aug. 22, 2017) (mem. decision). This court
reversed, stating Cabanas was "sentenced when there was
no requirement that a sentencing court distinguish between
crimes that reflect 'irreparable corruption' as
opposed to 'transient immaturity of youth, '"
and thus, "[a]lthough the sentencing court considered
[his] age in deciding on a sentence of natural life, that is
insufficient to deny relief . . . based on Miller."
Id. at *2, ¶ 8. As a result, we held Cabanas was
"entitled to an evidentiary hearing to allow him the
opportunity to establish that his crime reflected transient
immaturity" and remanded for further proceedings
consistent with our decision. Id. at ¶¶
Disclosure of Medical Records
At an October 2017 status conference, Cabanas stated his
intention to call himself, Dr. Barillas, and Professor
Steinberg as witnesses, and further stated that Steinberg
would testify in general regarding the transient immaturity
aspect of the juvenile brain. Claiming the determination of
transient immaturity requires analysis of the
individual's current mental state compared to their
juvenile evaluation, Cabanas stated he would call Dr.
Barillas to testify to Cabanas' present-day maturity
level to prove his crime reflected transient immaturity.
Under this anticipated presentation of the defense's
case, Dr. Barillas was set to testify specifically about
Cabanas, while Steinberg would testify about general
characteristics associated with juvenile impulsivity.
In January 2018, the assigned judge recused herself,
Cabanas' counsel withdrew, and the Public Defender's
Office was appointed. After Cabanas stated he would not call
Dr. Barillas to testify but instead would perform a
nationwide search to identify an appropriate mental health
expert, the State requested the court order production of
Cabanas' medical and mental health records for the
State's expert to review. The court granted the
State's request for disclosure of all Arizona Department
of Corrections and/or Corizon reports dated February 20, 2002
through March 1, 2018, and all Maricopa County Correctional
Health Services records from March 27, 1999 through March 4,
2002; June 25, 2015 through July 7, 2015; and January 16,
2018 through March 1, 2018. Cabanas objected, arguing he had
not noticed a mental health defense nor designated an expert;
the court overruled the objection, but allowed Cabanas to
submit redacted records to the court for review. The court
did not establish any parameters for such redactions. Cabanas
again challenged the order but submitted unredacted copies of
the records for the court to review in camera. The
court denied Cabanas' challenge and ordered all the
Cabanas now seeks special action review from the superior
court's order compelling disclosure of his medical and
mental health records. II. Reconstruction Hearing
Also discussed at the October 19 conference was the
State's request for a reconstruction hearing on remand
from this court's mandate in Cabanas, 2017 WL
3599595. In support of its request, the State stated that
because it was unable to access the transcript of the 2002
sentencing, it wanted to call the sentencing judge to testify
to reconstruct the record. The State argued that while the
record contained the special verdict, there was no record of
the original sentencing proceeding, and that if no transcript
or court reporter notes were located, the court should
reconstruct the original sentencing to complete the record.
The State argued the record needed to be reconstructed
because if Cabanas were to meet his burden under Arizona Rule
of Criminal Procedure ("Rule") 32.8(c), the State
would then have the burden of proving that the constitutional
error was harmless beyond a reasonable doubt.
After argument on November 16, the court ordered a hearing to
reconstruct portions of the record not included within the
sentencing judge's twenty-nine-page special verdict,
which could not otherwise be recreated by way of affidavit or
declaration. The State filed a motion re-urging its request
to have the original ...