State v. Kendrick

306 P.3d 85, 232 Ariz. 428, 665 Ariz. Adv. Rep. 4, 2013 WL 3808165, 2013 Ariz. App. LEXIS 132
CourtCourt of Appeals of Arizona
DecidedJuly 16, 2013
DocketNos. 1 CA-CR 11-0849, 1 CA-CR 11-0850
StatusPublished

This text of 306 P.3d 85 (State v. Kendrick) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kendrick, 306 P.3d 85, 232 Ariz. 428, 665 Ariz. Adv. Rep. 4, 2013 WL 3808165, 2013 Ariz. App. LEXIS 132 (Ark. Ct. App. 2013).

Opinion

OPINION

NORRIS, Judge.

¶ 1 The issue in this appeal is whether a probationer’s unauthorized removal of an electronic monitoring device, required as a condition of probation, constitutes escape in violation of Arizona Revised Statute (“A.R.S.”) section 13-2503(A)(2) (Supp.2012).1 We hold it does not. Accordingly, we reverse Justin Scott Kendrick’s conviction for escape, vacate the superior court’s finding that he violated his probation, and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 In 2008, Kendrick pled guilty in Mari-copa County Superior Court Cause No. GR2007-006213-001 to attempted molestation of a child and sexual abuse, both class three felonies and dangerous crimes against children (“2007 case”). Pursuant to his plea agreement, the superior court suspended imposition of sentence on each count and placed Kendrick on lifetime probation. As a condition of probation and as required by AR.S. § 13-902(G) (Supp.2012), the superior court subjected Kendrick to global positioning system (“GPS”) monitoring for the term of his probation (“monitoring order”).2

¶ 3 In July 2010, a probation officer petitioned to revoke Kendrick’s probation, alleging he had violated his probation by, inter alia, interfering with the electronic monitoring device in violation of A.R.S. § 13-3725 (2010), absconding, and failing to comply with GPS monitoring as required by AR.S. § 13-902(G). Subsequently, and as relevant here, in Maricopa County Superior Court Cause No. CR2010-145260-001, a grand jury indicted Kendrick for escape in the second degree, a class five felony (“2010 case”). A.R.S. § 13-2503(A)(2), (B). The petition to revoke Kendrick’s probation and escape charge arose out of his failure to wear a GPS monitoring device (“GPS unit”) on his ankle pursuant to the court’s monitoring order.

¶ 4 A jury found Kendrick guilty of escape. The superior court sentenced Kendrick to a prison term for escape, and found he had violated his probation in the 2007 case based on his conviction in the 2010 case. The court reinstated Kendrick on lifetime probation to begin after his release from prison.

[430]*430DISCUSSION

¶ 5 On appeal, Kendrick argues the superi- or court should have granted his motion for judgment of acquittal on the escape charge because the State failed to prove he had committed a “departure from custody ... with knowledge that such departure [was] unpermitted” in violation of A.R.S. § 13-2501(4) (Supp.2012). Although Kendrick acknowledges he was required to wear the GPS unit as a condition of probation, he argues that requirement did not “constitute the constructive restraint sufficient to satisfy the definition of custody” in AR.S. § 13-2501(3), the statute that defines “custody” for purposes of escape. Reviewing these arguments de novo, we agree. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011) (appellate court reviews ruling on motion for judgment of acquittal de novo); State v. Stauffer, 203 Ariz. 551, 554, ¶ 8, 58 P.3d 33, 36 (App.2002) (appellate court reviews issues of statutory construction and interpretation de novo).

¶ 6 As charged in this case, a person commits escape in the second degree by knowingly “[ejscaping or attempting to escape from custody imposed as a result of having been arrested for, charged with or found guilty of a felony.” AR.S. § 13-2503(A)(2). Under AR.S. § 13-2501(4), and as relevant here, “ ‘[e]seape’ means departure from custody ... with knowledge that such departure is unpermitted.” In turn, “ ‘Mustody’ means the imposition of actual or constructive restraint pursuant to an on-site arrest or court order ...” A.R.S. § 13-2501(3).

¶ 7 We have addressed the meaning of “custody” in two eases where, as here, the defendant removed an electronic monitoring device. But in each case, in addition to removing the device, the defendant also violated a court order that subjected the defendant to home detention. Thus, in State v. Williams, 186 Ariz. 622, 925 P.2d 1073 (App.1996), we held the defendant had violated A.R.S. § 13-2503(A)(2) by removing an eleetronic monitoring device and departing from home detention without authorization. There, we explained: “Defendant’s removal of the electronic monitoring device and unauthorized departure from his home and Arizona constitute[d] an act of departing from court-ordered custody.” Id. at 623, 925 P.2d at 1074. Similarly, in In re Brittany Y., 214 Ariz. 31, 32, ¶ 9, 147 P.3d 1047, 1048 (App. 2006), we held a juvenile had violated A.R.S. § 13-2502(A) (2001)3 by removing an electronic ankle monitor and leaving home after the juvenile court had imposed electronic monitoring and home detention as a condition of the juvenile’s release pending probation violation proceedings.

¶ 8 Here, unlike Williams and Brittany Y., in the 2007 case, the superior court did not order home detention, or confine Kendrick to any particular place, or require him to be at any place at a particular time. Although the terms of his probation prohibited him from going to certain places (for example, traveling outside Maricopa County or going to places primarily used by children, without permission from the probation department),4 Kendrick, who was living at a homeless shelter when arrested, could otherwise come and go as he pleased and live where he wished.

¶ 9 The State argues, however, that the superior court’s monitoring order by itself constituted a court-ordered “constructive restraint” under AR.S. § 13-2501(3). Noting the Legislature did not define “restraint,” the State relies on dictionary definitions and argues “restraint” should be construed broadly to include a range of meanings, from “[l]oss or curtailment of freedom” to “[a]n inhibiting influence.” Thus, the State argues the superior court’s order requiring Kendrick to wear the GPS unit as a condition of probation constituted a court-ordered “restraint” because it “inhibited] him from violating the rules imposed as part of his probation and, at the same time, ... curtailed] his freedom to move about without constant monitoring by the State.”

[431]*431¶ 10 We reject the State’s argument that court-ordered electronic monitoring by itself constitutes restraint and thus, “custody” under A.R.S. § 13-2501(3). In construing a statute, our task is to “fulfill the intent of the legislature that wrote it.” State v. Williams, 175 Ariz.

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Related

State v. West
250 P.3d 1188 (Arizona Supreme Court, 2011)
State v. Stroud
103 P.3d 912 (Arizona Supreme Court, 2005)
State v. Williams
925 P.2d 1073 (Court of Appeals of Arizona, 1996)
State v. Williams
854 P.2d 131 (Arizona Supreme Court, 1993)
Commonwealth v. Wegley
829 A.2d 1148 (Supreme Court of Pennsylvania, 2003)
State v. Gray
258 P.3d 242 (Court of Appeals of Arizona, 2011)
State v. Wise
671 P.2d 909 (Arizona Supreme Court, 1983)
State of Arizona v. Amiel Proto
58 P.3d 33 (Court of Appeals of Arizona, 2002)
State v. Wise
671 P.2d 909 (Arizona Supreme Court, 1983)
In re Brittany Y.
147 P.3d 1047 (Court of Appeals of Arizona, 2006)

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Bluebook (online)
306 P.3d 85, 232 Ariz. 428, 665 Ariz. Adv. Rep. 4, 2013 WL 3808165, 2013 Ariz. App. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kendrick-arizctapp-2013.