State v. Gerrie

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellant, v. GORDON PHILLIP GERRIE, Appellee. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 09-0847 DIVISION ONE FILED: 12/14/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 1999-008755 The Honorable Warren J. Granville, Judge AFFIRMED AS MODIFIED William Montgomery, Maricopa County Attorney By Lisa Marie Martin, Deputy County Attorney Attorneys for Appellant Phoenix Maricopa County Public Defender By Louise Stark, Deputy Public Defender Attorneys for Appellee Phoenix I R V I N E, Judge ¶1 The State timely appeals from the trial court s order modifying Gordon Phillip Gerrie ( Gordon ) s probation from a life term to five years pursuant to Arizona Rule of Criminal Procedure 27.3 and State v. Peek, 219 Ariz. 182, 195 P.3d 641 (2008). 1 For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 The State charged Gordon with four counts of sexual offenses committed against his minor daughter between June 1 and July 31, 1997. Gordon pled guilty to amended counts of attempted child molestation (Count 6) and attempted sexual conduct with a minor under the age of fifteen (Count 8), both class 3 felonies and attempted DCACs. The court imposed a five-year prison term on Count 8 from August 29, 2001, and upon his release, lifetime probation on Count 6. ¶3 began Sometime in 2009, the Adult Probation Office ( APO ) filing probationers petitions whose to modify attempted DCAC or discharge crimes probation occurred during for the Peek timeframe. In June 2009, the court notified the parties that APO filed a petition to modify 1 Gordon s probation. The In Peek, 219 Ariz. at 182, ¶ 1, 195 P.3d at 641, the Arizona Supreme Court held that a defendant could not be sentenced to lifetime probation for second-degree Dangerous Crimes Against Children ( attempted DCAC ) committed between January 1, 1994, and July 20, 1997 ( Peek timeframe ). It reasoned that before 1994, lifetime probation for attempted DCAC was available under A.R.S. § 13-604.01(I). Id. at 183, ¶ 8, 195 P.3d at 642. The legislature deleted § 13-604.01 in 1994, and supplanted it with A.R.S. § 13-902(E), which did not apply to attempted DCAC. Id. Effective July 21, 1997, the legislature reinserted language in A.R.S. § 13-902(E) that reinstated lifetime probation for attempted DCAC. During the Peek timeframe, five years was the maximum term of probation permitted for attempted DCAC. 2 State responded, objecting to discharge. Gordon filed a memorandum in support of termination. ¶4 At a consolidated hearing on July 21, 2009, the trial court heard arguments on this and several other Peek cases. It decided to examine the factual bases of each case individually and gave the State an opportunity to pinpoint more precisely the dates of the offenses. When given an opportunity to do so at a hearing additional on October evidence to 23, 2009, narrow the the State dates. The presented trial no court reasoned that the rule of lenity required it to assume that the offenses were committed within the Peek time frame and modified Gordon s probation to a term of five years on Count 6. It ordered APO to calculate whether Gordon has completed that term and to submit an Order of Discharge, if warranted. DISCUSSION ¶5 We exercise special action jurisdiction because the State has no equally plain, speedy and adequate remedy by way of appeal, and it raises an issue of first impression involving purely legal questions of public importance that are pending in other cases or likely to recur. See Jackson v. Schneider, 207 Ariz. 325, 327, ¶ 5, 86 P.3d 381, 383 (App. 2004); State v. Dean, 1 CA-CR 09-0705 (Ariz. App. Dec. 9, 2010). ¶6 The State incorrectly asserts that Gordon s probation was terminated early. The record shows that his probation was 3 modified pursuant to Rule 27.3. Therefore, the facts and issues presented here are virtually identical to those this Court addressed in Dean, 1 CA-CR 09-0705 (Ariz. App. Dec. 9, 2010). We find no reason to depart from our holding in Dean. CONCLUSION ¶7 We affirm modification of Gordon s probation. /s/ PATRICK IRVINE, Judge CONCURRING: /s/ LAWRENCE F. WINTHROP, Presiding Judge /s/ PATRICIA K. NORRIS, Judge 4

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