STATE OF ARIZONA v. CRISTIAN JOSEPH ROSS
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IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Respondent, v. CRISTIAN JOSEPH ROSS, Petitioner. No. 2 CA-CR 2021-0093-PR Filed February 8, 2022 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Cochise County No. S0200CR201900676 The Honorable Timothy Dickerson, Judge REVIEW GRANTED; RELIEF DENIED COUNSEL Brian M. McIntyre, Cochise County Attorney By Michael A. Powell, Deputy County Attorney, Bisbee Counsel for Respondent Malanga Law Office, Bisbee By Rafael Malanga Counsel for Petitioner STATE v. ROSS Decision of the Court MEMORANDUM DECISION Vice Chief Judge Staring authored the decision of the Court, in which Presiding Judge Eppich and Judge Brearcliffe concurred. S T A R I N G, Vice Chief Judge: ¶1 Cristian Ross seeks review of the trial court’s ruling summarily dismissing his petition for post-conviction relief, filed pursuant to Rule 33, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Ross has not shown such abuse here. ¶2 Pursuant to a plea agreement, Ross was convicted of aggravated assault by domestic violence.1 At sentencing, Ross asked the trial court to impose a lower community notification sex offender status than the level two classification that the probation department suggested in the “Arizona Sex Offender Assessment Screening Profile and Regulatory Community Notification” portion of the presentence report.2 Ross argued it was within the court’s discretion to reduce that community notification level. However, the court explained that it “ha[d] never seen a sentencing judgment . . . where the Court specified any level,” nor had it entered such an order. The court agreed with the state that it was not within the power of the court, the state or the defendant to make such a determination. The prosecutor explained, and the court agreed, that pursuant to A.R.S. § 13-3825, the agency accepting supervision of a defendant (the probation department in this case), makes a risk assessment, which it did here. Although the prosecutor also stated the probation department then determines the sex offender community notification level, the statute provides that the local law enforcement agency of the community in which 1 As part of his guilty plea, Ross admitted he had committed the offense with sexual motivation pursuant to A.R.S. § 13-118, and stipulated he would register as a sex offender. See A.R.S. §§ 13-3821, 13-3825. 2Although counsel mistakenly asked the trial court to impose a level three rather than level one sex offender status, it was nonetheless clear counsel was asking the court to impose a less stringent level. See § 13-3825(C). 2 STATE v. ROSS Decision of the Court the person resides categorizes the offender and “place[s] each offender into a notification level” after considering information such as the risk assessment and other relevant information. § 13-3825(D). Nevertheless, the court appears to have been aware that, ultimately, the determination of the level is effective upon Ross’s release from prison, explaining to him that he could “explore” his options for challenging that determination at that time. The court then sentenced Ross to the presumptive, one-year prison term and ordered him to register as a sex offender within ten days of his release. ¶3 Ross filed a petition for post-conviction relief, arguing “the probation department, rather than the trial court made an arbitrary determination of the sex offender registration level,” and asserting that the “court is tasked with determining the proper level to be applied as a component of sentencing.” Ross asked the court to conduct an evidentiary hearing to determine if his “rights were violated by the ‘suggested’ community notification level submitted by the probation department and whether or not the level was correctly determined.” ¶4 The trial court summarily dismissed Ross’s petition, correctly noting that he “will not be categorized and placed into a notification level until after he is released from the [Department of Corrections],” and concluding he had not stated valid grounds for relief under Rule 33.1. See § 13-3825(A), (B), (D) (following release, and after reviewing “information received and any other information available . . . the local law enforcement agency shall categorize each offender and place each offender into a notification level”). The court determined that Ross’s claim is “premature,” noting that “A.R.S. § 13-3825 does not give the court any part to play in the process of categorizing an offender and it does not give the offender any right to have his assessment score or notification level reviewed by a court.” The court also stated it was “beyond the ability of the court” to rewrite the risk assessment made by the probation department, as Ross had suggested it do. This petition for review followed. ¶5 On review, Ross argues that § 13-3825 “violates both federal and state procedural due process because it fails to provide judicial review at the trial court stage or at any stage thereafter” of the recommended community notification level, asserting Rule 33 is the only vehicle in which he can raise this claim. He asks that we “remand this matter to the trial court for a hearing on the community notification level designation,” find 3 STATE v. ROSS Decision of the Court § 13-3825 unconstitutional, and “vacate that portion of [his] sentence pertaining to community notification.”3 ¶6 We initially note that Ross was released from prison in November 2021, after the trial court dismissed his Rule 33 petition in August 2021. Ross informed this court in his reply to the state’s response to his petition for review that he was categorized as a level two offender upon his release. The court therefore correctly concluded that Ross’s claim was premature. More importantly, however, the court correctly concluded the claim was not cognizable under Rule 33. Ross asserts on review that his claim is based on Rule 33.1(a), arguing that his sentence “was impose[d] in violation of the United States and Arizona Constitutions.”4 However, the community notification level is not part of a sentence. See State v. Trujillo, 248 Ariz. 473, ¶ 1 (2020) (“Arizona’s sex offender registration statutes are civil regulatory statutes, not criminal penalties.”); State v. Noble, 171 Ariz. 171, 178 (1992) (holding sex-offender registration regulatory rather than punitive for purposes of ex post facto analysis). Nor is Ross’s claim cognizable under any other subsection of Rule 33.1. ¶7 In addition, although Ross apparently does not dispute the trial court’s correct conclusion that § 13-3825 provides no mechanism for it to assess the community notification level, he nonetheless complains the court did not “actually impose a [registration] level at all,” but simply “deferred to the powers down the road.” Again, Ross’s claim is not cognizable under Rule 33.1. In any event, his argument ignores the language in § 13-3825, which makes clear that trial courts do not conduct the risk assessment or determine the registration level. As the state points out in its response to the petition for review, not only does local law enforcement determine the level for registration purposes, but that entity may change the initial assessment made at the time of sentencing once the defendant is released, as well as each time the defendant relocates, based on local community standards.5 See § 13-3825(F). 3 Insofar as Ross also challenges what he characterizes as the trial court’s “post-sentencing evaluation” of the probation department’s risk assessment, we do not address that argument, as it is not relevant to our ruling for the reasons set forth below. 4Ross referred generally to Rule 33.1(a) and (c), in his petition below. 5Therefore, any challenge to Ross’s registration level is not against the trial court, rather it may be against the local law enforcement agency responsible for imposing his classification, notwithstanding his claim that 4 STATE v. ROSS Decision of the Court ¶8 Accordingly, we grant review but deny relief. such an option is not plausible. Alternatively, Ross’s argument may be better directed to the legislature. 5
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