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Garcia v. Butler

Court of Appeals of Arizona, Second Division

August 14, 2019

Anthony Garcia, Petitioner,
Hon. Michael J. Butler, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and

          Special Action Proceeding Pima County Cause No. CR20184269001

          Joel Feinman, Pima County Public Defender By Lisa M. Surhio, Assistant Public Defender, Tucson Counsel for Petitioner.

          Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Real Party in Interest.

          Judge Espinosa authored the opinion of the Court, in which Presiding Judge Eppich concurred and Judge Eckerstrom dissented.


          ESPINOSA, JUDGE.

         ¶1 In this special action, Anthony Garcia seeks relief from the respondent judge's order granting the state's request under A.R.S. § 13-4518(A) that he undergo psychological screening to determine whether he may be a sexually violent person (SVP). We previously stayed the respondent's order and now accept special-action jurisdiction because Garcia has no equally plain, speedy, or adequate remedy by appeal and because this case presents a legal question of first impression. See Duff v. Lee, 246 Ariz. 418, ¶ 2 (App. 2019); see also Ariz. R. P. Spec. Act. 1(a). However, because § 13-4518 does not allow a trial court to deny a screening request when, as here, the statutory requirements have been met, we deny relief.

         Procedural History

         ¶2 In October 2018, Garcia was charged with sexual conduct with a minor under the age of fifteen. After competency proceedings held pursuant to Rule 11, Ariz. R. Crim. P., the respondent judge determined Garcia was incompetent to stand trial and could not be restored to competency "within timelines required by Arizona law."

         ¶3 The state moved to have Garcia undergo SVP screening under § 13-4518(A), which authorizes such screening when an incompetent defendant who is unlikely to be restored to competency has been charged with a sexually violent offense. Although Garcia conceded these requirements had been met, he nonetheless objected to the state's request, asserting, "[w]hether or not to order such an evaluation is within the Court's discretion." He argued that, despite having undergone competency evaluations, there was "no evidence" he suffered from a mental disorder qualifying him as an SVP, specifically "a paraphilia, a conduct disorder, or a personality disorder." The respondent granted the state's screening request, concluding that "if the two prongs [of the statute] are met, . . . the evaluation should occur." This petition for special action followed.


         ¶4 On review, Garcia repeats his argument that a trial court has discretion to deny a screening request even when the requirements of § 13-4518(A) have been met.[1] He further argues the respondent here failed to exercise that discretion in granting the state's request. And he contends that, because there is "no evidence" he suffers from a disorder that could qualify him as an SVP, such screening is inappropriate.

         ¶5 We review de novo the interpretation of a statute and, in doing so, seek "to 'effectuate the legislature's intent,' the best indicator of which 'is the statute's plain language.'" Pinal County v. Fuller, 245 Ariz. 337, ¶ 8 (App. 2018) (quoting SolarCity Corp. v. Ariz. Dep't of Revenue, 243 Ariz. 477, ¶ 8 (2018)). And we read that language "in context with other statutes relating to the same subject or having the same general purpose." Id. (quoting SolarCity Corp., 243 Ariz. 477, ¶ 8).

         Statutory Language

         ¶6 An SVP is a person who "[h]as ever been convicted of or found guilty but insane of a sexually violent offense or was charged with a sexually violent offense and was determined incompetent to stand trial" and "[h]as a mental disorder that makes the person likely to engage in acts of sexual violence." A.R.S. § 36-3701(7). If those elements are established at a trial, the person is subject to civil commitment. See A.R.S. §§ 36-3701 to 36-3717. In this context, a mental disorder "means a paraphilia, personality disorder or conduct disorder or any combination of paraphilia, personality disorder and conduct disorder that predisposes a person to commit sexual acts to such a degree as to render the person a danger to the health and safety of others." § 36-3701(5). Sexually violent offenses are enumerated in § 36-3701(6) and include sexual conduct with a minor, the crime for which Garcia has been charged.

         ¶7 As noted above, § 13-4518(A) provides that the state "may request" SVP screening for a defendant found incompetent to stand trial if two conditions are met. First, the competency report must conclude that "there is no substantial probability that the defendant will regain competency within twenty-one months" of the incompetency finding. § 13-4518(A)(1). Second, the defendant must have been "charged with or . . . convicted of or found guilty except insane for a sexually violent offense." § 13-4518(A)(2). Section 13-4518(B) states: "If the court orders a screening to determine if the defendant may be a sexually violent person," it shall appoint a competent professional to conduct a screening and is not permitted to dismiss the underlying criminal case until a decision has been made about filing an SVP petition.

         ¶8 Garcia maintains a trial court has discretion to deny a screening request made under § 13-4518(A) even if the statutory requirements are met. He first asserts: "Had the legislature intended to make the screening mandatory, it would have used the word 'shall.'" Garcia is correct that the word "shall" frequently indicates a provision is mandatory. See, e.g., State ex rel. Brnovich v. City of Tucson, 242 Ariz. 588, ¶ 31 (2017); Lewis v. Ariz. State Pers. Bd., 240 Ariz. 330, ¶ 30 (App. 2016); Arrett v. Bower, 237 Ariz. 74, ¶ 24 (App. 2015). But he cites no authority, and we find none, concluding the legislature must use the term "shall" or a similar term for a provision to be mandatory. Indeed, the statute also lacks expressly permissive language.[2] Thus, Garcia's argument that the statute is devoid of directive language cuts against his position. "We presume the legislature says what it means." Chavez v. Ariz. Sch. Risk Retention Tr., Inc., 227 Ariz. 327, ¶ 9 (App. 2011). Had the legislature intended to allow a trial court to impose additional, non-statutory requirements on a state's screening request, it would have said so.

         ¶9 Garcia further argues the respondent had discretion to reject the state's request because "if," as used in § 13-4518(B), is a conditional term. But there is nothing about a conditional term that suggests discretion. It means only that an event may occur only when certain conditions exist. See if, The American Heritage Dictionary (5th ed. 2011) (definitions of "if" include "[i]n the event that" and "[o]n the condition that"). The most sensible reading of the statute is that the term "if" in § 13-4518(B) refers to whether the prerequisites listed in § 13-4518(A) have been met, thus warranting a screening, not whether some other, unspecified, showing has been made.

         ¶10 Garcia additionally asserts that the use of the word "if" in other statutes supports his argument that the term means the trial court has discretion. But he misapprehends the source of the court's discretion in those statutes. Garcia cites A.R.S. § 13-4505(A), which states a court must appoint two or more experts to evaluate a defendant's competency "[i]f [it] determines . . . that reasonable grounds exist." The discretionary aspect of the statute is not rooted in the conditional "if," but in the court's determination whether reasonable grounds exist. Section 13-4518, in contrast, does not require the court to determine whether the state's request has reasonable grounds-it clearly identifies two unambiguous prerequisites, and nothing more. Garcia also cites A.R.S. § 13-4517(A), which provides that "[i]f the court finds that a defendant is incompetent to stand trial," any party may request one (or more) of three options: remanding the defendant to an evaluating agency; appointing a guardian; or releasing the defendant and dismissing the charges without prejudice. Again, the discretionary aspect of the statute is unrelated to the use of the term "if." Instead, the discretionary components are related to the required finding of incompetence and the court's choice of three available options.

         ¶11 Were Garcia's argument correct, a trial court could impose any requirement it believed appropriate under the circumstances before ordering screening under § 13-4518. But this court has already rejected the argument that a court generally has discretion to add to clearly enumerated requirements. In Haroutunian v. Valueoptions, Inc., 218 Ariz. 541 (App. 2008), we addressed then-Rule 9(a), Ariz. R. Civ. App. P., now Rule 9(f), which stated that, if certain prerequisites are met, a court "may upon motion" extend the time to file a notice of appeal. The trial court in that case had declined to extend the time to appeal despite finding the prerequisites had been met, citing the party's failure to show "good cause" related to its failure to receive notice of the judgment. Id. ¶ 9. Concluding the court had thus applied "an incorrect legal standard" by grafting a good cause requirement onto Rule 9, we reversed. Id. ¶¶ 13, 29. Here, like in Haroutunian, the governing provision expressly provides the showing the state is required to make. A court is not permitted to add to the statute by requiring the state to show something more, for example, as Garcia argues, evidence of a qualifying disorder.

         Legislative Intent

         ¶12 Contrary to our dissenting colleague's view, nothing in the legislative materials suggests the legislature intended that the state would be required to make any showing beyond the requirements listed in § 13-4518(A). And Garcia has not identified on review any public policy reason to require an additional showing in these circumstances. Screening is required only when there is probable cause to believe the person has committed a sexually violent offense or has previously been found guilty or guilty except insane of such an offense. § 13-4518(A)(2); see also § 36-3701(7). The SVP statutes make no distinction between the two qualifying statuses. §§ 36-3701 through 36-3707. Nor has any Arizona case. And allowing trial courts to require an additional showing is not consistent with the statute's purpose: to create procedures for the court and prosecuting agency to better supervise those transitioning from criminal proceedings to potential civil commitment. See S. Fact Sheet for H.B. 2239, 53d Leg., 1st Reg. Sess. (Ariz. Apr. 10, 2017). Were we to adopt Garcia's argument, we would instead create a non-statutory barrier not contemplated by our legislature-that could vary from case to case-to ensuring that a potential SVP is properly evaluated.

         ¶13 Court-ordered SVP screening upon the state's compliance with § 13-4518(A) is consistent with the remainder of the statutory scheme. The governing statutes have long included pre-petition SVP screening for persons in custody. An agency with jurisdiction over the person may screen any potential SVP before release, § 36-3702(A), including by obtaining and providing the county attorney or attorney general with "[a] report of the person's condition that was completed within the preceding one hundred twenty days and that includes an opinion expressing to a reasonable degree of psychiatric, psychological or professional certainty that the person has a mental disorder and that, as a result of that mental disorder, the person is likely to engage in a sexually violent offense," § 36-3702(D)(9)(a); see also In re Commitment of Conn,207 Ariz. 257, ΒΆ 4 (App. 2004) ...

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