                          NOTICE: NOT FOR PUBLICATION. 
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. 




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                      STATE OF ARIZONA, Petitioner,

                                        v.

  THE HONORABLE JOSEPH C. KREAMER, Judge of the SUPERIOR
   COURT OF THE STATE OF ARIZONA, in and for the County of
               MARICOPA, Respondent Judge,

                   OTIS MAGEE, JR.,  Real Party in Interest. 

                             No.  1 CA-SA 14-0196
                              FILED 12-09-2014


 Petition for Special Action from the Superior Court in Maricopa County
                          No.  CR2011-113640-001
                 The Honorable Joseph C. Kreamer, Judge

            JURISDICTION ACCEPTED; RELIEF GRANTED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Gerald R. Grant
Counsel for Petitioner

Law Office of the Public Defender, Phoenix
By Mikel Steinfeld
Counsel for Real Party in Interest
                   STATE v. HON.  KREAMER/MAGEE
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Donn Kessler and Judge Kent E. Cattani joined. 


T H O M P S O N, Presiding Judge:

¶1            We accept jurisdiction of this special action and grant relief to
the petitioner, State of Arizona.  We hold that the trial court erred by finding
that it lacked jurisdiction to require real party in interest Otis Magee, Jr.
(defendant ), who is on probation, to register as a sex offender. 

               FACTUAL AND PROCEDURAL HISTORY

¶2             Defendant was a substitute teacher at a charter school where
the fifteen-year-old victim was a student.  In late 2010, defendant took the
victim and her friend to a fast food restaurant.  While the victim was sitting
in his car, defendant touched her vagina over her clothing five or six times. 
As the victim was attempting to exit defendant’s vehicle, he put his hands
down her shorts and held on to her for a short amount of time before she
was able to get out of the car. 

¶3            In December 2011, defendant pled guilty to count 1 of an
indictment that originally charged sexual abuse, a felony, but was amended
to contributing to the delinquency of a minor, a class 1 misdemeanor.  The
trial court accepted the plea, and dismissed a second count for unlawful
imprisonment.  The parties stipulated that the offense was sexually
motivated, and agreed that defendant would be placed on supervised
probation.  The plea agreement provided that whether defendant would be
required to register as a sex offender would be left to the discretion of the
court. 

¶4           In its presentence investigation report, the probation
department recommended that defendant undergo a psychosexual
evaluation, and that “[o]nce this testing is completed and the results
obtained, the supervising probation officer can determine whether the
defendant should be required to register as a sex offender.” 

¶5        Prior to sentencing, defendant filed a sentencing
memorandum asking that the trial court not require him to register as a sex


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                    STATE v. HON.  KREAMER/MAGEE
                          Decision of the Court

offender.  In his sentencing memorandum, he noted that “[t]he court also
has the ability to retain jurisdiction over this issue and rule upon it at a later
date.”  In February 2012, the trial court suspended the imposition of
sentencing, and placed defendant on supervised probation for three years. 
The court ordered him to undergo a psychosexual evaluation, after which
the probation department would provide a recommendation to the court
regarding sex offender registration, “to be determined at the Review
Hearing on August 9, 2012.” 

¶6            As of July 2012, defendant had not completed the
psychosexual evaluation.  His probation officer proposed that he instead
complete a less costly “modified psycho-sexual evaluation,” and requested
that the review hearing be continued.  Defendant underwent the alternate
assessment, and in November 2012 the probation department
recommended, based on the assessment, that the court order him to register
as a sex offender.  In February 2013, defendant filed motions requesting that
the state disclose the psychosexual risk assessment and to continue the
review hearing.  He asked the court to “hold off on the sex offender
registration decision . . .  until the counseling and treatment is completed.” 
The court granted a continuance, and in April 2013 defendant filed a
memorandum requesting the court to “continue to defer the decision of sex
offender registration until [defendant]’s probation term is complete.”  In
that memorandum, defendant asserted that the psychosexual risk
assessment he had completed was “unreliable and incomplete.” 

¶7            In May 2013, defendant filed another motion to continue the
review hearing, which had been reset to May 17, 2013, to July or August.  In
this motion, defendant stated that another polygraph had been scheduled
for July 2013 and that the state did not object to the court ruling on the sex
offender registration issue after the results of the polygraph were available. 
The court continued the matter to August 2013 and then again to October
2013.  At a status conference in October 2013, the court noted that a
counseling report it had received in July 2013 was “lacking and/or
incomplete,” and delayed its decision on defendant’s sex offender
registration until March 2014.  The court ordered defendant to submit a
completed evaluation prior to the March 2014 status conference/review
hearing. 

¶8            Defendant did not get the new evaluation by March 2014, and
the court again continued the review hearing, noting that “[t]he Court has
been advised that the funding issue has been resolved and Defendant will
get the requested testing.” 



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                    STATE v. HON.  KREAMER/MAGEE
                          Decision of the Court


¶9             In August 2014 defendant filed a supplemental brief arguing
that, pursuant to State v. Serrano, 234 Ariz. 491, 323 P.3d 774 (App.  2014),
the trial court lacked jurisdiction to require him to register as a sex offender. 
In Serrano, this Court held that a trial court does not have jurisdiction to
order a defendant to register as a sex offender after oral pronouncement of
sentence.  234 Ariz. at 494-95, ¶¶ 9-15, 323 P.3d at 777-78.  Relying on
Serrano, the trial court concluded in this case that it lacked jurisdiction to
determine whether defendant should register as a sex offender.  The state
filed this special action and we accepted jurisdiction. 

                                DISCUSSION

¶10           Special action jurisdiction is appropriate because the state has
no equally plain, adequate, or speedy remedy by appeal.  See Ariz. R. P.
Spec.  Act.  1(a); Alejandro v. Harrison, 223 Ariz. 21, 23, ¶ 6, 219 P.3d 231, 233
(App.  2009). 

¶11            We conclude that the state is entitled to relief.  First, Serrano
does not apply to cases in which the trial court has suspended the
imposition of sentence and placed the defendant on probation.  Further,
defendant here consented to a delayed resolution of sex-offender
registration status.  He did so presumably because he believed a delayed
determination would permit him to develop evidence that would persuade
the court not to require him to register as a sex offender.  By agreeing to this
procedure, defendant is precluded from now challenging it.  See State v.
Logan, 200 Ariz. 564, 565-66, ¶9, 30 P.3d 631, 632-33 (2001) (party who invites
error waives any challenge to results); see also State v. Bouchier, 159 Ariz. 346,
348, 767 P.2d 233, 235 (App.  1989) (probationer waived objections to sex
offender registration by failing to object to them). 

¶12            Arizona Revised Statutes (A.R.S.) section 13-901(A) (2010)
provides that if a defendant who has been convicted of an offense is eligible
for probation, “the court may suspend the imposition or execution of
sentence” and place the defendant on intensive, supervised, or
unsupervised probation.  A trial court thus retains jurisdiction over a
defendant who is on probation until the term of his probation is completed
or it is revoked and he is sentenced.  See State v. Contreras, 180 Ariz. 450, 453,
885 P.2d 138, 141 (App.  1994) (“When the trial court suspends sentence and
orders probation, the sentence is not final.  The court retains jurisdiction
over the probationary terms and the probationer until the term of probation
is successfully completed or until it is revoked and a prison sentence



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                  STATE v. HON.  KREAMER/MAGEE
                        Decision of the Court

ordered.”) ( citing State v. Holguin, 177 Ariz. 589, 870 P.2d 407 (App.  1993)
and A.R.S. § 13-603(B)). 

¶13            Unlike the defendant in Serrano, who was sentenced to
concurrent prison terms, defendant here remains subject to the jurisdiction
of the trial court pending completion of his probationary term in February
2015.  Thus, the trial court erred by applying Serrano to this case. 

                             CONCLUSION

¶14           Because the trial court has jurisdiction to decide whether
defendant should register as a sex offender, we accept jurisdiction and
grant relief. 




                                    :ama




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