IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO

IN RE THE COMMITMENT OF OLIN GENE TAYLOR ) ) ) ) ) ) ) 2 CA-MH 2003-0002 -SP

DEPARTMENT A O P I N I O N

APPEAL FROM THE SUPER IOR COURT OF PIMA C OUNTY Cause No. A-20020013 Honorable Paul E. Tang, J udge VACATED AND REMANDED Barbara LaWall, Pima County Attorney By Amy Pignatella Cain Barton & Storts, P.C. By Brick P. Storts, III Tucson Attorneys for Appellant

Tucson Attorneys for Appellee F L Ó R E Z, Judge.2

¶1 The state appeals from the trial co urt’s order of Decemb er 24, 2002, dismissing civil commitment proceed ings brought against Olin Gene T aylor pursuant to Arizona’s Sexually Violent Persons (SVP) Act, A.R.S. §§ 36-3701 t hrough 36-3717, and order ing his immediate release from the Arizona State

Hospital. At issue in this appea l is the meaning of the term “civil commitment

proceedings” as used in § 36-3701(6)(b). Interpreting the statute de novo , see State

v. Hoggatt , 199 Ariz. 440, 18 P.3d 1239 (App. 2001), w e hold that the term include s commitment proceedings under the SVP Act and that the trial court erred in concluding otherwi se. Factual and Procedura

l Background ¶2 Taylor

was accused of sexually molesting an eight-year- ol d girl as sh e slept in a home where Taylor

had been drinking

with her father. After a

jury found Taylor guilty of chil d molestation and the trial co urt sentenced him

in 1998 to a twenty-year prison term, we reversed his c onviction based on the impro per admission at trial of the victim’s videotaped, out- of-court statement, which was consistent with her in-court

testimony. State v. Taylor , 196 Ariz. 584, 2 P.3d 674 (App. 1999). ¶3 On

remand, Taylor entered into a plea agreement, under which he agreed to plead

no contest to a reduced cha rge of attempted kidnapping, ad mitted “that the

offense charged in this plea agreement was co mmitted fo r the purpose of sexual gra tification pursuant to A.R. S. § 13- 118,” and agreed to register a s a sex offender pursua

nt to A.R.S. § 13-3821 . The t rial court acceptedhis guilty plea, found him guilt y, and sentenced him to

five years in prison. Bef ore his scheduled release, the state institut ed these SVP

proceedings

by petitioning for his detention a nd evaluation pursuant to §§ 36- 3704 and 36-3705.1 In its entirety, A.R.S . § 36-3701(6) provides: 6. “Sexually violent offens e” means any of the follo wing: (a) Sexual conduct with a minor pursua nt to § 13-1405, sexual assault pursuant to § 13-1406, sexual assault o f a spouse pursuant to § 13-1406 .01, molestation of achild pursuant to § 13-1410 o r continuo us sexual abuse of a child p ursuant to § 13-1417. (b) Second

degree murder pursuan

t to § 13-1104, first degree murder pur suant to § 13-1105, assault pursuant to § 13-1203, aggravated ass ault pursuant to § 13-1204, unlawful impriso nment pursuant to § 1 3-1 303, kidnaping pursuant to § 13-1304 or burglary in the first degre e pursuant

to § 13-1508 if the court at the time of sentencing or civil commitme nt p roceedings determines beyond a reasonable doubt that the a ct was sexually motivated p ursuant to § 13-118. (c) An attempt, a solicita

tion, a f acilitation or a conspiracy to commit an offense listed in subdivision ( a) or (b) of this paragra

ph. (d) An act committed in a nother jurisdiction that if com mitted in this state would be a sexually violent offe nse listed in subdiv ision (a ) or (b) of this paragraph. (e) A conv iction for a felony offe nse that was in effect be fore Septembe

r 1 , 1978, that if committed on or after September 1, 1978 would be comparable to a sexually violent offense li sted in subdivision (a) or (b) of this paragraph. 3 ¶4 Taylor

moved to dismiss the proce edings in August 2002 based on § 36-3701(6)(b), which, in combination

with § 36-3701(6)(c), d

efines a sexually violent of fense toinclude attempted kidnapping, provided “the court at the tim e of sentencing or civil co mmitment proceedings determines beyond a reasonable doubt that the act was sexually motivated pursuant to § 13-118.” 1 Ignoring the “or civil commitment proceedings” language of § 36-3701(6)(b), Taylor argued that his attempted kidnapping conv iction did not qualify as a

sexually violent offense because the trial court had not made an explicit f inding on the record at sente ncing t h at the offense had been sexuallymotivated. Rejecting that argume nt, the trial court ruled that the sentencing court’s4

reference to § 13-118 in

the sentencing

minute entry “serve[d] a s that court’s finding, beyo nd a reasonable doubt, that the instant offense was committed for the purpose of respondent’s sexual motivation.” ¶5 We accepted jurisdiction of Taylor’s petition

seeking special action re lief from the denial of his motion to dismiss. With on ly sele ct ed excerpts from the tri al court record before us—notablynot including Taylor’s written p lea agreement, the minute entry of the change-of-plea hearing, or the reporter’s transc ript—w e granted partial relief. Taylor v. Tang , No. 2 CA-SA 2002-0099(decision order filed Nov. 26, 2002). Our specific, narrow ho lding was that, by itself, “the mere, unexplain

ed refer ence to § 13-118 in a sentencing minute entry does not constitute”

or necessarily reflect a

finding by the

trial court, beyond a rea sonable doubt, that the unde rlying act was sexually motivate d. ¶6 In

the trial court, Taylor again moved to dismiss the SVP proceedings. He argued the state was unable to establish the predicate conviction f or a sexually violent offense required by § 36-3701(7)(a) beca

use the trial court

had not formally determ

ined at sentencing

that Taylor’s criminal acts had been sexually motivated and because, h e c ontends, § 36-3701(6)(b ) does not allow the court to make the finding later during the SVP proceedings. ¶7 Agreeingwith Taylor, the trial court granted his motion and dismi ssed the SVP proceeding. The court reasoned that, if our legislature had intended to p ermit the determination to be made either at the time of sen tenc ing or during subsequent civil c ommitment proceedings under the Act, the statute would ha ve said literally that, as its counterpart in the prototype Kansas statutedoes. See Kan. Stat. Ann. § 59-29a02(e)(13). Thus, the trial court concluded, the ter m “civil commitment proceed ings” in § 36-3701(6)(b) re fers to act ions commenced either “under5

Rule 11, [Ariz. R. Crim. P.,] where a determination is made by the court as to whether an accused should be civilly committed in l ieu of bei ng criminally incarcera ted, or under the involuntar y commitment statutes of Title 36.”

Meaning of “Civil Comm itment Proceedings” in § 36-3701(6)(b) ¶8 Our primary goal in construi ng a statute

is to discern and give

effect to the intent of the legislature. Zamora v. Reinstein , 185 Ariz. 272, 915 P.2d 1227 (1996). We look first to its language as “the best and most reliable index of a sta tute’s meaning.” Janson v. Christensen , 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991). If its meaning is not apparent f rom the language itself, we “then consider other fa ctors such as the statute’s conte xt, history, subject matter, effects andconsequences, spirit, a nd purpose. We also seek t o harmonize relate

d statutes an d ‘aim to achieve consistency among them ’ wi thin the context of the overa ll statutory scheme.” State v. Fell , 203 Ariz. 186, ¶6, 52 P.3 d 218, ¶6 (App. 2002) (citation omitted), quoting Bills v. Ariz. Prop. & Cas. Ins. Gua

r. Fund , 194 Ariz. 488, ¶18, 984 P.2d 574, ¶18 (App. 1999). ¶9 Fora number of reasons, w e conclude

the tri al court misinterpreted § 3 6- 3 701 (6)(b). First, although the specific language used in the Kansa s statute (“or subsequently during civil commitment proce edings pursuant to this act,” K an. Stat. Ann. § 59-29a02) might be preferable

to the mor e s uccinct “civil commitme nt proceedings” in our statute , the wording of § 36-3701(6)(b) by no

means precludes the

same interpretation, nor does it compel a different one. We believe that the Arizona legislature intended our statute to operat e the same as its Kansas counterpart

and, hence, that a t rial court may make the determ

ination contemplated by § 36

- 3701(6)(b) during civil commitment pr oceedingsunder the

SVP Act if the sentencin

g court did not previously do so.6

¶10 Secon

d, this is the most logical and likely construction of § 36 -3701(6)(b). See Janson , 167 Ariz. at 472, 808 P.2d at 1224 (“We must read the statute . . . to give

it a fair and sensiblemeaning.”). Indeed , the Act elsewhere explicitly provides for this procedure. Se ction 36-3707(A) states: A. The court or jury shall determine beyon d a reasonable doubt if the pe rson name d in the petition is a sexually viole nt person. If the state alleges that t he sexually violent offens e on whichthe petition for

commitment is based wa s sexually motivated, the stat e shall p rove beyond a reasonable doubt that the alleged sexually violent act was sex ually motivated. A parallel provision, subsec tion (D) of § 36-3707, per ta ins to those allegedly sexually viole nt persons found

incompetent to stand

trial on the criminal offe nse with which they were ch arged. Subsection

(D) permits the court hearing an SVP petition to “hear evidence and det

ermine if the person committed the act or acts charged if the court did not enter a fi nding before the charges were dismissed.” It is plain from § 36-3707

that the determination

that an offense was sexu ally motivated need not be ma de before or outside SVP proceedings themselves

. ¶11 Third, the trial court’s conclusion that “‘civil com mitment proceedings’ r

efers to actions commenced under Rule 11” does not withstand close s cruti ny. Rule 11 is a rule of criminal, not civil, procedure. See Ariz. R. Crim. P. 1 1, 16A A.R.S.; A.R .S. §§ 13-4501 through 13-4517. Rule 11 compe tency proceedings them

selves and

the “competency restoratio n treatment” thata court m ay order for a defenda nt found to be incompetent a re not civil commitment

proceedings. See Ariz. R. Crim. P. 1 1.5; § 13-4512. Rule 11.5(b)(2)(I) prov ides, if the court determines “the re is no substantial probabilit y that [an incompetent] def endant will become competent within 21 months o f the date found in competent, it may . . . [r]emand [the]7

defendant to [the] Department of

Health Services to begin civil commitment proceedings

pursuant to Title 36, Chapter 5.” (Em phasis added.) Likewise, Rule 11.6(e) provides t ha t, upon th e discretionary

dismissal of criminal cha rges against an incompet

ent defendant, “the def

endant shall be released from cust

ody unles s the court finds that the def endant’s condition warra nts a civil commitment hearing

pursuant to A.R.S. § 36-501.” (Emphasis added.) See also § 13-4517(1). Simply stated, proceedings under Rule 11 are not “civil commitment proceedings.” ¶12 Noris it plausible that “civil comm itment proceedings” in

§ 36-3701(6)(b) refe

rs to the procedures in chapte r 5 of Title 36, A.R.S. , for the in voluntar y commitment of menta lly ill persons. In involuntary co mmitment

proceedings under §§ 36-5 33 through 36-540, the issue fordecision is whether there is cle ar and con

vincing evidence that “the p roposed patient, as a result of mental disorder, is a danger to self, i s a danger to others, is per sistently or acutely disabled or is gravely disabled and in need of treatment, and is either unwilling or unable to accept voluntarytreatment.” § 36-540(A ). Now here in chapte r 5 is there any referen ce either to the proposed patient’s having c ommitted a sexually motiv ated criminal act or to the SVP statutes. ¶13 In

fact, there i s no connection, either inherent or express, between the general mental health commitment proc edures in chapter 5 of Title 36 and ei ther the criminal code in T itle 13, A.R.S., or the S

VP Act in chapter 37 of Title 36. Whether a mentally i ll person in need of court-ordered treatment might also have committed a crim

inal offense is irreleva

nt in involuntary commitment

proceedings under chapter 5. Con sequently, there is no rea son, requirement, or statutorymechanism for a court conducting proceedings under chapter 5 to formally de termine whether a proposed patient has com mitted any

of the offenses itemiz

ed in § 36-3701(6)(b), much2 Indeed, in the statement of legislative intent accomp anying the SVP Act, the le gislature took pains to distinguish sexually violent persons from other perso ns suffering from men

tal illness. Noting that sexually violent persons n ormally are not “appropria te candidates for existing involuntary

commitment procedures,” the legislature observed that “the treatment modalitie s for sexuallyviolent offenders are ve ry different than

the traditional treatment m odalities for persons who are appropriate candid ates for involuntary comm itment.” 1995 Ariz. Ses s. Laws, ch. 257, § 10. Civil commitment proceedings under chap ters 5 and 37 of Title 36, A.R.S., then, are independent, unrelated

proceedings.

3 Initially, the Act used the term “sexu ally violent

predator,” which was changed in 1997 to “sexually violent person.” 1 997 Ariz. Sess. Laws, c h. 136, § 30. 8 less to determine, beyond a r easonable doubt, “that [a

ny such] act was sexually

motivated pursuant to § 13-118.” 2 ¶14 Ourinterpretation of § 36-3701 (6)(b) receives fur ther support in the legislat ive history of the SVP Act. In 1998, the legi slature changed the definition of a sexually violent person

3 in § 36-3701(7)(a) from one who “[h]as been convicted of . . . a sexually violent offense” to one who “[h]as ever been convicted of” such an offense. 1998 Ariz. Sess. Laws, ch. 136, § 7 (emphasis added). A concurrent, parallel change added the phrase “a

t any time” to all three subsectionsof § 36-3702(A). 1998 Ari z. Sess. Laws, ch. 1 36, § 8. Taken together with the statement of legislative intent that “protecting the p ubl ic from sex offender s is a paramount governmental interest,” 1995 Ariz. Sess. Laws, ch. 257, § 10, t hese changes manifest an unmist ak able intention to view persons who have committed a predicate offense as potential sexuallyviolent persons, regardle ss of whether they comm itted the qualifying offens e before or after June 30, 1996, the effective date of the Act. 1995 Ariz. Sess. Laws, ch. 257, § 11(B). ¶15 Given

that clear intent, it is evide nt that the inclusion of “civil co mmitment proceedings” in

§ 36-3701(6)(b) supplies th e mechanism for bringi

ng within the Act those persons4 Section 13-118, A.R.S., defines th e term “sexual motivation” a nd creates the procedur

e by which a prosecutor may allege and prove a defendant’s sexual motivation in a “criminal case involving an offense other than a sexual offense.” Se

ction 13-118 and the SVP Act were contemporaneously ena

cted in 1995. 1995 Ariz. S ess. Laws, ch. 257, § 1. 9 whose sexually violent conduct led to a conviction for one of th e offenses listed in § 36-3701 (6)(b) before the Act’s effective date. If the finding of underlying sex u al motivation in those offenses could not be made during the SVP proceedings, t he result woul d be truly anomalous: per sons convicted of

an offense listed in § 36-3 701(6)(a) could be civ illy committed as sexually v iolent persons regardless of wh e n they committed their cr imes, while persons convic ted of an offense l isted in § 36-3701(6)(b) would on ly be subject to the Act if the y were sentenced for a

n offense committed after June 30, 1996, by a court that expressly deter mined, beyond a reason

able doubt, thatthe underlying criminal conduct had been “sexually motivated pursuant to § 13-118.” 4 § 36- 3701(6)(b). We can find no rational basis for such differentiation nor f or the disparate treatme

nt it would produce. We do not believe our legislature intended such paradoxical results, particularly given its “paramount” goal of prote cting the public from sexua lly dangerous persons. 1995 Ariz. Sess. Laws, ch. 257, §

10. ¶16 Our concl usion that the SVP Act applies equally to persons who committed quali fying offenses both before a nd after its enactment r

equires that we construe th e phrase “pursuant to section 13-118” in

§ 36-3701(6)(b) as logic

ally susceptible to more than on e meaning. Forcases after June 1996 in which the state has el ected to file a special allegation of sexual motivation

under § 13-118(A), the phrase “pursuant to” may denote ad herence to the

procedures specified in subsections (A) and (B) of § 13-118. For

all other cases, in which § 13-118( A) and (B) either did not yet exist or, for whatever reason, have not been followed, the phrase “sex ually10

motivated pursuant to § 13-118” can and should r easonably be interprete d to mean “sexually motivated as defined in

§ 13-118(C).” ¶17 To ascribe a more restr ictive meaning to the phra se “pursuant to” in this specific context would eliminate as qualifying

predicate offenses all crimes listed in § 36-3701(6)(b) that

wereprosecuted before the S VP Act and § 13-118 were e nacted. Such an i

nterpretation

would

run counter to the 1998 amend ments previously discussed, whose obvious purpose was to broaden the sc ope of the Act to include all pote ntially dangerous persons who have ever committed a sexuallyviolent a ct, regar dless of when the crime o r crimes occurred. Th e alternative construction

of “pursuant to” that we adopt in stead is consistent with

the legislature’s clear intent and with the following well-e stablished rules of statutory c onstruction: “Statutory

provisions are to be read in the context of related provis ions a nd of the overall statutory sc heme. The goal is to achieve consistency among

the related statutes.” Enactments which deal with the same class of things and have a common purpose are in pari materia

and must be read and construed together in order to give full effect to each statute, if possible. Prudential v. Estate of Rojo-Pacheco , 192 Ariz. 139, 148-49, 962 P.2d 213, 222-23 (App. 1997) (citations omitted), quoting Goulder v. Ariz. Dep’t of Transp., 177 Ariz. 414, 416, 868 P.2d 997, 999 (App. 1993) , aff’d179 Ariz. 181, 877 P.2d 280 (1994). ¶18 In

sum, we believe our legis latureintended to permit the determination of sexual motivation

referred to in § 36-3701( 6)(b) to be made either by the court at the time of sentencing

or by the trier of fact during subsequent civil commitm ent proceedings pursuant to the SVP Act. See § 36-3707(A). Accordin gly, we hold

that the term “civil comm itment proceedings” in § 36-11

3701(6)(b) specifically includes co mmitment proceedings p

ursuant to the SVP

Act. The trial court thus erred in granting Taylor’ s motion to dismiss. ¶19 In

remanding the

case for trial pursuant to § § 36-3706 and 36-3707, we note that the record on appeal contai ns documents and informa tion that the record previous ly before uson Taylor’s petition for special action did not. Noting in our decisi on order in the special action that

ourruling was necessarily constrained by the incomplete record provided us, we expressl y left open the possibility that additional inf ormation might

lead to other findings. Further, we stated: “We see no bar to a pleading defendant’s similarly a

dmitting that a crime was s exually motivated. Without a copy of the plea agreement or the minute entry or transcript of the change-of- ple a proceeding, however, we have no wa y of knowing whether that mi g ht h ave happened in this case.” ¶20 What

we now know is that Taylor’s writte n plea agreement did

indeed contain an express proviso that the attempted k idnapping c harge he admitted had be en “committed for the purposeof sexual gratif ication pursua nt to A.R.S. § 13-118.” This admission is, of course, highly material to the question of sexual motivation for purposes of § 36-3701(6)(b), that the trier of fact must determine at trial. See §§ 36-3707(A), 36-3701(7)(a). ¶21 The trial court’s order of December 24, 2002, is vacated, a nd we remand

the case for further proceedings consistent with this decision.

________ _______________________ _________

_ M. JAN FLÓREZ, Judge12

CONCURRING:

____________________________ ____________ J. WILLIAM BRAMMER , JR., Presiding Judge

____________________________ ____________ JOSEPH W. HOWARD, Jud ge