In Re Nickolas T.

• Court: Court of Appeals of Arizona
• Decided: February 3, 2010
• Docket: 2 CA-JV 2009-0111
• Status: Published

Opinion

FILED BY CLERK IN THE COURT OF APPEALS FEB -3 2010 STATE OF ARIZONA COURT OF APPEALS DIVISION TWO DIVISION TWO

) 2 CA-JV 2009-0111 IN RE NICKOLAS T. ) DEPARTMENT B ) ) OPINION )

APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY

Cause No. JV03000169

Honorable Ann Littrell, Judge

AFFIRMED

Edward G. Rheinheimer, Cochise County Attorney By Erin D. Bennett Sierra Vista Attorneys for State

Malanga Law Office By Rafael Malanga Bisbee Attorney for Minor

E C K E R S T R O M, Presiding Judge. ¶1 In this appeal, the State of Arizona challenges the juvenile court‟s order

vacating its prior order that had required appellee Nickolas T. to register as a sex offender

in connection with his 2003 delinquency adjudication for sexual assault. We affirm for

the reasons stated below.

¶2 In July 2003, then eleven-year-old Nickolas T. was charged by delinquency

petition with nine counts of different sexual acts with a minor and one count of

threatening and intimidating. Nickolas was adjudicated delinquent after he entered into a

plea agreement with appellant State of Arizona, pursuant to which he admitted he had

committed sexual assault, and the other charges were dismissed. As part of its November

2003 disposition order, the juvenile court placed Nickolas on Juvenile Intensive

Probation Supervision (JIPS), ordered him to obtain intensive in-patient treatment, and

required him to register as a sex offender. Over the next several years, Nickolas was

ordered to participate in a counseling program and polygraph testing about his sexual

conduct. In April 2005, the state filed a petition to revoke probation. But in November

2005, the juvenile court released Nickolas from probation, finding he had been

successful. The court set review hearings to determine whether Nickolas should continue

to be required to register as a sex offender. It ordered a second psycho-sexual evaluation

and granted Nickolas leave to request the registration requirement be terminated.

¶3 Three additional delinquency petitions were filed in August and September

2007. In January 2008, Nickolas admitted he had possessed spirituous liquor and drug

paraphernalia. In March 2008, the juvenile court initially committed Nickolas to the

Arizona Department of Juvenile Corrections (ADJC). But the same day the court

2 rescinded that order and placed him on JIPS. Probation was subsequently revoked,

however, and Nickolas was committed to ADJC in July 2008 and released about a year

later. Nickolas then filed a motion asking the court to vacate the order requiring him to

register as a sex offender. The court granted the motion in October 2009, over the state‟s

objection and after a hearing. On appeal, the state contends the juvenile court lacked the

authority to terminate the registration requirement and that Nickolas must continue to

register until he reaches the age of twenty-five.

¶4 We will not disturb a juvenile court‟s disposition order, including the

decision whether to require a juvenile to register as a sex offender, absent an abuse of

discretion. See In re Sean M., 189 Ariz. 323, 324, 942 P.2d 482, 483 (App. 1997). “„An

abuse of discretion includes an error of law.‟” State v. Gonzalez, 216 Ariz. 11, ¶ 2, 162

P.3d 650, 651 (App. 2007), quoting State v. Rubiano, 214 Ariz. 184, ¶ 5, 150 P.3d 271,

272 (App. 2007). And questions regarding the meaning and application of statutes are

questions of law, which we review de novo. Bobby G. v. Ariz. Dep’t of Econ. Sec., 219

Ariz. 506, ¶ 1, 200 P.3d 1003, 1005 (App. 2008).

¶5 The state argues, based on traditional principles of statutory construction,

the juvenile court lacked the authority to vacate its previous order and for that reason,

abused its discretion. Asserting that specific statutes control general statutes, the state

argues A.R.S. § 13-3821 is more specific than A.R.S. § 8-202(G), which addresses

generally the juvenile court‟s authority to vacate orders pertaining to a juvenile over

which the court has asserted jurisdiction before that juvenile reaches the age of eighteen,

at which time the juvenile court no longer has jurisdiction of any juvenile. Section 13-

3 3821 “set[s] forth the limited circumstances under which the sexual offender registration

requirement may be terminated.” Section 13-3821(F) provides that a “duty to register

under subsection D or E . . . for a juvenile adjudication terminates when the person

reaches twenty-five years of age.” Section 13-3821(D) provides the juvenile court may

require a juvenile to register as a sex offender when the juvenile has been “adjudicated

delinquent for an act that would constitute an offense specified in subsection A or C of

this section.” In contrast, subsection (A) requires a person convicted of certain specified

offenses to register as a sex offender. § 13-3821(A).

¶6 “Our primary purpose in interpreting a statute is to determine and effectuate

the legislature‟s intent, mindful that the best reflection of that intent is the plain language

of the statute.” In re Martin M., 572 Ariz. Adv. Rep. 27, ¶ 6 (Ct. App. Dec. 21, 2009).

When the plain meaning of the statute is clear and unambiguous, we do not apply

principles of statutory construction to determine the legislature‟s intent. State v.

Christian, 205 Ariz. 64, ¶ 6, 66 P.3d 1241, 1243 (2003). Section 13-3821 governs all sex-

offender registrations. The state is correct that § 13-3821 is a more specific statute than

§ 8-202(G). The state is also correct that “[u]nder the principles of statutory construction,

specific statutes control general statutes.” Save Our Valley Ass’n v. Ariz. Corp. Comm’n,

216 Ariz. 216, ¶ 22, 165 P.3d 194, 199 (App. 2007). But there is no conflict between

these two statutes, as the state suggests. Rather, they can be viewed as entirely consistent

and in harmony with one another. See State v. Flynt, 199 Ariz. 92, ¶ 5, 13 P.3d 1209,

1211 (App. 2000) (appellate court obligated to construe statutes so they are harmonious

with one another and consistent).

4 ¶7 Based on the plain language of § 13-3821(A), a person convicted of certain

offenses must register as a sex offender. Subsection (C) of the statute specifies other

circumstances in which a trial court may require a person convicted of a criminal offense

to register as a sex offender. § 13-3821(C). Although neither of these two subsections

uses the words, “adult prosecution,” based on the clear language of these subsections, the

legislature intended them to apply only to persons prosecuted and convicted as adults.

Delinquency adjudications are not the same as convictions, see In re Fernando C., 195

Ariz. 233, ¶ 5, 986 P.2d 901, 902 (App. 1999), and clearly they are not treated the same

under this statute. Subsection (D), by its express terms, pertains to juveniles who have

been adjudicated delinquent, reflecting the legislature‟s express distinction between

adults convicted of certain crimes and juveniles who have been adjudicated delinquent.

§ 13-3821(D). Subsection (D) provides as follows:

The court may require a person who has been adjudicated delinquent for an act that would constitute an offense specified in subsection A or C of this section to register pursuant to this section. Any duty to register under this subsection shall terminate when the person reaches twenty- five years of age.

Id. See Sean M., 189 Ariz. at 324, 942 P.2d at 483 (because juvenile adjudicated

delinquent based on attempted child molestation, an offense specified in § 13-3821(A),

juvenile court had authority to require juvenile to register as sex offender); In re

Maricopa County Juv. Action No. JV-132744, 188 Ariz. 180, 181-82, 933 P.2d 1248,

1249-50 (App. 1996) (§ 13-3821 gives juvenile court discretion to require juvenile to

5 register as sex offender; finding statute not “an unconstitutional expansion of the juvenile

court‟s jurisdiction”).

¶8 Reiterating the limitation imposed by subsection (D) that any registration

requirement the juvenile court might impose on a juvenile cannot extend past the

juvenile‟s twenty-fifth birthday, the legislature provided in subsection (F) that any duty to

register imposed on a juvenile automatically “terminates when the person reaches twenty-

five years of age.” § 13-3821(D), (F). Subsection (G) provides that if a person has been

convicted of an offense but was under the age of eighteen at the time he or she committed

the offense, “on successful completion of probation” the trial court has the discretion to

terminate that person‟s obligation to register as a sex offender. § 13-3821(G). A trial

court does not otherwise have the discretion to terminate the registration requirement of a

person convicted of a crime who is required to register as a sex offender.

¶9 The state argues subsection (G) demonstrates the legislature knew how to

give courts the authority to terminate a previously imposed order to register as a sex

offender when it wanted to and, because it only did so in the circumstances identified in

that subsection, the juvenile court lacks comparable authority. But the state overlooks

that subsection (G) refers to persons convicted of an offense, that is, a person who has

been prosecuted as an adult, not a juvenile who has been adjudicated delinquent. § 13-

3821(G).

¶10 Here, the legislature has given the juvenile court the discretion in the first

instance to determine whether a juvenile offender should be required to register as a sex

offender. In the absence of any legislative language suggesting otherwise, we can only

6 conclude the legislature has necessarily given the juvenile court discretion to determine

later whether the need for that requirement persists under the circumstances of the

individual case. Our conclusion is consistent with the juvenile court‟s general authority

to remove conditions of probation and terminate orders before the juvenile‟s eighteenth

birthday, pursuant to § 8-202(G), an authority that predated § 13-3821(D) and (F) and

which the latter subsections neither contradict nor limit.

¶11 This understanding of the juvenile court‟s authority is also “consistent with

the rehabilitative purpose of juvenile courts, and the goal of protecting and promoting the

best interests of juveniles.” In re Stephanie N., 210 Ariz. 317, n.3, 110 P.3d 1280, 1283

n.3 (App. 2005) (citation omitted). The legislature repeatedly has acknowledged the

distinction between adult criminal prosecutions and juvenile adjudications, treating the

two differently and in a way that facilitates the rehabilitative purpose of the juvenile

justice system. See David G. v. Pollard ex rel. County of Pima, 207 Ariz. 308, ¶ 21, 86

P.3d 364, 368 (2004) (“From the inception of the juvenile justice system, courts have

recognized that juvenile cases involved special interests that could not be adequately

addressed by the adult criminal system.”); State v. Bly, 127 Ariz. 370, 371, 621 P.2d 279,

280 (1980) (public policy of Arizona‟s criminal justice system “to condemn, correct, or

deter transgressions which harm either individual or public interests”). When, as here, a

juvenile has committed a sexual offense, particularly a juvenile who was eleven years old

when he committed the offense, there is the possibility that the juvenile will be

rehabilitated. In expressly giving to the juvenile court the discretion to determine

whether a juvenile should be required to register as a sex offender in the first instance, the

7 legislature has acknowledged the differences between the juvenile and adult justice

systems and the distinction between child offenders and adults who commit sexual

offenses. Given those distinctions, we do not read the statute as divesting the juvenile

court of that discretion once it has determined the juvenile must register. Thus, the most

logical interpretation of the statute, consistent with the approach to juvenile justice the

legislature has expressed through § 8-202(G), is that the court may determine, in its

discretion, if an eleven-year-old offender has been rehabilitated sufficiently such that the

child is no longer a danger to society. And, it is for the juvenile court to evaluate the

juvenile over time and determine whether, too, it would be unjustifiably damaging to the

juvenile to require him or her to register as a sex offender when the justification for such

an obligation no longer exists.

¶12 The juvenile court had the statutory authority to require Nickolas to register

as a sex offender, and it had the authority to terminate this requirement. The state does

not challenge whether the record supports the court‟s exercise of that discretion, insisting

simply that it had no such discretion to exercise. We note, summarily, that the record

supports the juvenile court‟s determination that no purpose would be served by requiring

8 Nickolas, who committed the sexual offenses at the age of eleven, to continue to register

as a sex offender. We therefore affirm the juvenile court‟s order.

___________________________________ PETER J. ECKERSTROM, Presiding Judge

CONCURRING:

____________________________________ J. WILLIAM BRAMMER, JR., Judge

____________________________________ GARYE L. VÁSQUEZ, Judge