BETH FAY, Petitioner, v. THE HONORABLE DEWAIN D. FOX, JUDGE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA, Respondent Judge, and STATE OF ARIZONA; JORDAN MICHAEL HANSON, Real Parties in Interest.
No. CR-20-0306-PR
Supreme Court of the State of Arizona
Filed September 20, 2021
Appeal from the Superior Court in Maricopa County, The Honorable Dewain D. Fox, Judge, No. CR2015-005451-001, REVERSED. Order of the Court of Appeals, Division One, 1 CA-SA 20-0123, VACATED AND REMANDED
COUNSEL:
Randall S. Udelman (argued), Arizona Crime Victim Rights Law Group, Scottsdale, Attorney for Beth Fay
Treasure VanDreumel (argued), Law Office of Treasure VanDreumel, PLC, Phoenix; Lori L. Voepel, Jones, Skelton & Hochuli, PLC, Phoenix, Attorneys for Jordan Michael Hanson
Allister Adel, Maricopa County Attorney, Phoenix, Attorneys for State of Arizona
Colleen Clase, Arizona Voice for Crime Victims, Phoenix, Attorney for Amici Curiae Arizona Voice for Crime Victims, Inc. and National Crime Victim Law Institute
David J. Euchner (argued), Pima County Public Defender‘s Office, Tucson; Madeline A. Mayer, Maricopa County Public Defender‘s Office, Phoenix, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice
Mark Brnovich, Arizona Attorney General, Brunn (Beau) W. Roysden III, Solicitor General, Lacey Stover Gard, Deputy Solicitor General/Chief of Capital Litigation, Ginger Jarvis, Assistant Attorney General, Capital Litigation Section, Phoenix, Attorneys for Amicus Curiae Arizona Attorney General
JUSTICE BOLICK authored the opinion of the Court, in which JUSTICES LOPEZ and BEENE and JUDGE BREARCLIFFE joined.* VICE CHIEF JUSTICE TIMMER, joined by CHIEF JUSTICE BRUTINEL, dissented.**
¶1 In this case, we hold that a crime victim has a constitutional and statutory right to be heard on the merits of a defendant‘s motion for a delayed appeal of a restitution order.
BACKGROUND
¶2 On September 5, 2015, defendant Jordan Michael Hanson allowed Carson Dumbrell to enter his home. Shortly after, Hanson retrieved a loaded handgun from his bedroom and asked Dumbrell to leave. When Dumbrell refused, Hanson repeatedly punched him. During their fight, Hanson shot and killed Dumbrell.
¶3 On February 16, 2017, a jury convicted Hanson of second-degree murder. Beth Fay is Dumbrell‘s mother, and therefore a victim under Arizona law.
¶4 On March 21, 2018, Fay filed a motion requesting a Criminal Restitution Order (“CRO“) pursuant to
¶5 On November 8, 2018, the court of appeals issued a Memorandum Decision rejecting Hanson‘s direct appeal of his conviction.
¶7 On May 20, 2019, the trial court entered a CRO awarding Fay $562,980.45 in restitution. Hanson did not appeal the court‘s order.
¶8 On January 7, 2020, eight months after the court entered the CRO, Hanson filed a Limited Petition for Post-Conviction Relief (Delayed Appeal Request) and Request to Hold Further PCR Proceedings in Abeyance (“Limited Petition“) pursuant to
¶9 On January 13, 2020, Fay filed a Response to [Hanson‘s] Limited Petition, and Hanson then filed on January 21, 2020 a Motion to Strike [her response] and Prohibit Future Responsive Pleadings Filed by Victim‘s Counsel and to Adjust Reply Deadline. The same day, Hanson filed an Amended Petition for Post-Conviction Relief, requesting to include his IAC claim in his initial post-conviction relief proceeding. Thereafter, Fay filed a Response to [Hanson‘s] Motion to Strike Pleadings Filed by Victim‘s Counsel and to Adjust Reply Deadline, arguing that Hanson was attempting to use post-conviction relief to walk away from his prior agreement on restitution. The trial court initially denied Hanson‘s Motion to Strike, finding that pursuant to
¶10 Following the ruling, Hanson filed an objection, complaining that the trial court had denied his Motion to Strike before he had a chance to reply to Fay‘s Response and requesting reconsideration of the trial court‘s ruling. On April 15, 2020, the trial court reversed its decision. In its ruling on Hanson‘s objection, the court stated in part:
The drafters of the Arizona Constitution, statutes and rules of criminal procedure all knew how to grant a victim the “right to be heard” when that was their intent. Indeed, as set out above, they expressly did so for certain types of proceedings. If the drafters had intended to give victims a general right to be heard in post-conviction relief proceedings, or specifically on claims for permission to take a delayed appeal from a CRO or for a new trial for IAC, the drafters could—and presumably would—have done so expressly. As much as the Court respects victim‘s rights, the Court is tasked with enforcing the law as written.
. . .
IT IS . . . ORDERED granting Petitioner‘s requests for relief in the Objection/Motion for Reconsideration, specifically (i) striking the Victims’ Response to the Limited Petition, and (b) [sic] precluding the Victims from filing a response to the Amended Petition.
¶11 Fay sought relief by filing a Petition for Special Action in the court of appeals. The court of appeals accepted jurisdiction but denied relief. In its order, it stated in part:
We discern no constitutional, statutory, or rule-based right for Fay to weigh in on whether Hanson is at fault for this delay. While a delayed appeal could impact Fay‘s ability “to receive prompt restitution,” . . . her general right to receive prompt restitution does not trump Hanson‘s specific right to a delayed appeal upon demonstration that he did not cause the delay.
The court of appeals limited its ruling to Fay‘s attempt to be heard on the motion for delayed appeal, not on the amended petition.
¶12 The State and Fay filed separate Petitions for Review. We granted review of Fay‘s Petition to determine whether a victim is entitled to be heard on a
¶13 This case involves the interpretation of rules, statutes, and constitutional provisions, which the Court reviews de novo. State v. Hansen, 215 Ariz. 287, 289 ¶ 6 (2007).
¶14 Through the voters’ enactment of the Victims’ Bill of Rights (“VBR“) in 1990,
¶15 To recap the relevant facts, after Hanson unsuccessfully appealed his murder conviction, he and the victim, Fay, entered into an agreement regarding restitution, and the trial court entered a restitution award in line with that agreement. Eight months later, Hanson filed a post-conviction relief petition to contest that award based on
¶16 Fay argues, and we agree, that Hanson‘s effort to file a delayed appeal implicates multiple rights expressly protected by the Victims’ Bill of Rights, including the right to due process,
¶17 The court of appeals concluded that Fay‘s “general right to receive prompt restitution does not trump Hanson‘s specific right to a delayed appeal upon demonstration that he did not cause the delay.” This is an inapt characterization of the issue. Fay does not seek to invoke her constitutional rights as a crime victim to “trump” Hanson‘s right under
¶18 The trial court struck Fay‘s Response on the ground that she lacks standing to be heard on Hanson‘s Limited Petition. Specifically, the court noted that the drafters of the Victims’ Bill of Rights and implementing statutes and rules set forth specific instances in which victims have a right to be heard. By implication, the court held, victims do not have a right to be heard in any setting not expressly provided. Thus, for example, a victim can be heard on the amount of restitution, as statutorily provided in
¶19 Such an anomalous result is not required. To properly interpret a constitutional provision requires that it be viewed in its context as a whole. Morrissey v. Garner, 248 Ariz. 408, 410 ¶ 8 (2020) (“We examine constitutional language in its overall context to effectuate its purpose.“). “Such context may include a contemporaneous
¶20 By its terms, the Victims’ Bill of Rights is an intended baseline, not a ceiling, for the rights of crime victims. See, e.g.,
¶21 Moreover, the legislature has directed that its statutes “shall be liberally construed to preserve and protect the rights to which victims are entitled.”
¶22 Unlike in federal courts, where it is a constitutional prerequisite, standing in Arizona is a prudential consideration. Bennett v. Napolitano, 206 Ariz. 520, 525 ¶ 19 (2003). To establish standing, a plaintiff must show a palpable injury from the challenged conduct. Id. at 524 ¶ 16. No injury is more palpable or direct than infringement of a constitutional right. See, e.g., Baker v. Carr, 369 U.S. 186 (1962).
¶23 The determination of whether Hanson may proceed with a delayed appeal of the restitution order will directly impact Fay‘s rights to due process, prompt restitution, and finality. The latter two are substantive rights. Should Hanson prevail in his effort to present a delayed appeal, it will have the inevitable effect of delaying restitution and postponing finality. But for the pending motion, the issue of restitution would be settled.
¶24 The victim‘s right to due process attaches to those substantive rights. The “fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.‘” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citation omitted). That is precisely what is at stake here. Protecting the right to prompt restitution, and the finality of that award, requires that Fay have the opportunity to be heard on the threshold determination of whether Hanson may proceed with a delayed appeal under
¶25 The two cases Hanson principally relies upon are inapplicable. In State v. Reed, we struck down the section of a statute that required dismissal of a pending appeal upon a defendant‘s death. 248 Ariz. at 80 ¶ 27. The State argued that the statute was authorized to vindicate the protections of the Victims’ Bill of Rights. Id. at 79 ¶ 23. We held that such authorization was limited to rights that are created by the Victims’ Bill of Rights and that are unique and peculiar to crime victims. Id. at 80 ¶ 27. Here, no statutes are challenged, and therefore we are not confronted with the issue we addressed in Reed.
¶26 Moreover, our statement that the right to prompt restitution under the Victims’ Bill of Rights “does not guarantee victims any particular appellate disposition” since appellate scrutiny “may result in reversal or modification of the order,” id. at 79 ¶ 24, does not bear on the issue we address here. The issue is simply whether a victim may be heard on the merits of a motion for a delayed appeal of a restitution order under
¶27 In State v. Lamberton, the Court ruled that a victim could not file a petition for review, separate from the State, of an order granting a defendant‘s petition for post-conviction relief. 183 Ariz. 47, 51 (1995). The Court held that crime victims are not “parties” to criminal proceedings, and that the victim was not aggrieved because the trial court order did not “operate to deny her some personal or property right, nor does it impose a substantial burden upon her.” Id. at 49–50. The Court concluded that “[w]hile it is true that a major purpose of the VBR is to give victims the right to be heard at ‘criminal proceedings,’ we cannot conclude that victims are ‘parties’ with the right to file their own petitions for review.” Id. at 49.
¶28 This case implicates the right to be heard, not the party status that was at issue in Lamberton. Fay is not seeking to initiate anything but merely to be heard on a matter, initiated by Hanson, that directly affects her constitutional rights. The motion for delayed appeal is aimed squarely at the restitution award, a right that is just as squarely conferred by the Constitution. Absent permission to file a delayed appeal, Fay‘s right to restitution could not be disturbed. Hence, she has a direct stake in the outcome of the Limited Petition and a right to be heard on whether it should be granted.
¶29 Neither Hanson nor the courts below assert any prejudice to Hanson if the victim is allowed to be heard. Regardless of whether Fay participates, the petition will be determined solely by whether Hanson satisfies the rule‘s standard. But given the impact of that determination on Fay‘s constitutional rights, she must be given an opportunity to be heard.
¶30 Whether the right to be heard applies is context specific. It depends upon whether a victim‘s express rights are directly implicated by the matter at issue. See
CONCLUSION
¶31 We vacate the court of appeals decision, which dealt only with the limited post-conviction relief petition to file a delayed appeal, and reverse the trial court judgment on that issue. The court of appeals appears to have erroneously concluded that the trial court did not rule on whether Fay could be heard on the amended petition for post-conviction relief, which raises different issues. In fact, the trial court precluded Fay from filing a response to the amended petition. Hence, we remand to the court of appeals for determination of that issue before the case is returned to the trial court to proceed in accordance with this opinion.
TIMMER, VCJ., joined by BRUTINEL, CJ., dissenting.
¶32 This Court has long held that victims are not “parties” to a criminal prosecution. See State v. Lamberton, 183 Ariz. 47, 49–50 (1995). The majority holds that a crime victim has standing to respond to a defendant‘s request for a delayed appeal of a criminal restitution order because that motion “implicates” the victim‘s constitutional rights to prompt receipt of restitution and a prompt and final conclusion of the case. See supra ¶¶ 16, 23. In doing so, the majority takes a giant leap toward effectively conferring party status on victims by broadening their rights in a manner not contemplated by our constitution, statutes, or rules. We respectfully dissent.
¶33 Neither the Victims’ Bill of Rights,
¶34 Our colleagues reach a different result, reasoning that “[t]he right to be heard [on a request for a delayed appeal] is clearly contemplated by
¶35 The majority finds authority in the VBR‘s provisions guaranteeing victims the rights to prompt receipt of restitution and a prompt and final conclusion of the case. See supra ¶¶ 16, 23. But neither provision guarantees a right to be heard on a request for a delayed appeal of a criminal restitution order. See
¶36 The majority‘s analysis lacks any tether to the VBR and
¶38 The voters, the legislature, and this Court have demonstrated the ability to specify when a victim has a right “to be heard.” By bestowing that right on victims when their rights are “implicated,” the majority upsets the carefully crafted balance between the rights of victims and the rights of defendants and effectively elevates victims to party status, at least in post-conviction relief proceedings. We dissent.