                                                                         FILED BY CLERK
                                                                             FEB 21 2013
                             IN THE COURT OF APPEALS                          COURT OF APPEALS
                                 STATE OF ARIZONA                               DIVISION TWO

                                   DIVISION TWO


THE STATE OF ARIZONA,                            )       2 CA-CR 2012-0225
                                                 )       DEPARTMENT B
                                    Appellee,    )
                                                 )       OPINION
              v.                                 )
                                                 )
SUSAN IRENE HERNANDEZ,                           )
                                                 )
                                   Appellant.    )
                                                 )


            APPEAL FROM THE SUPERIOR COURT OF GILA COUNTY

                                 Cause No. CR201100320

                            Honorable Robert Duber II, Judge

                                       AFFIRMED


Thomas C. Horne, Arizona Attorney General
 By Kent E. Cattani, Joseph T. Maziarz, and
 David A. Sullivan                                                                  Tucson
                                                                     Attorneys for Appellee

Davis Miles McGuire Gardner, PLLC
 By Kirk Smith                                                                      Tempe
                                                                    Attorneys for Appellant


K E L L Y, Judge.


¶1            In this appeal from her conviction and sentence for luring a minor for

sexual exploitation, entered after a jury trial, Susan Hernandez argues the trial court erred
in sentencing her to a mitigated, two-year prison term rather than suspending her sentence

and placing her on probation. Specifically, she maintains the trial court’s imposition of a

prison term punished her for refusing to make statements about her offense to a probation

officer, thereby violating her Fifth Amendment right not to incriminate herself. For the

following reasons, as well as those expressed in a separate memorandum decision, we

affirm the conviction and sentence.1

                                       Background

¶2            Before sentencing Hernandez to a mitigated term of imprisonment, the trial

court stated it did not intend to place her on probation, citing a probation officer’s report

that Hernandez had declined to make any statements about her offense during the

presentence investigation and, in the officer’s opinion, would “not be able to successfully

participate in sex offender treatment programs or probation” which “require frequent and

frank discussion of the details of the offense that she says she didn’t commit.”

Hernandez maintains “nothing in the record . . . suggests [she] was unwilling to

participate in a counseling program”—as long as she “did not have to incriminate herself

further by discussing the details of her case, or the surrounding circumstances.” Citing

Jacobsen v. Lindberg, 225 Ariz. 318, 321, 238 P.3d 129, 132 (App. 2010), and State v.

Hardwick, 183 Ariz. 649, 656, 905 P.2d 1384, 1391 (App. 1995), she asserts the trial




       1
        Because our resolution of other issues Hernandez raises on appeal does not meet
the criteria for publication, we have addressed those issues in a separate memorandum
decision pursuant to Rule 111(h), Ariz. R. Sup. Ct. and Rule 28(g), Ariz. R. Civ. App. P.
                                             2
court’s stated reasons for “excluding probation as a sentencing possibility” violated her

right to remain silent.2

                                       Discussion

¶3            “We will not disturb a sentence that is within the statutory range absent an

abuse of the trial court’s discretion.” State v. Joyner, 215 Ariz. 134, ¶ 5, 158 P.3d 263,

266 (App. 2007). And we will find such an abuse of discretion “only if the court acted

arbitrarily or capriciously or failed to adequately investigate the facts relevant to

sentencing.” State v. Cazares, 205 Ariz. 425, ¶ 6, 72 P.3d 355, 357 (App. 2003).

¶4            It is well-settled that a state “may not impose substantial penalties because

a witness elects to exercise his Fifth Amendment right not to give incriminating

testimony against himself.” Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977). Nor

may a state “compel[] testimony by threatening to inflict potent sanctions unless the

constitutional privilege is surrendered.” Id. Thus, this court has concluded a defendant’s

sentence may not be aggravated based on his “lack of contrition,” which “is, for legal

purposes, tantamount to a refusal to admit guilt.” Hardwick, 183 Ariz. at 656, 905 P.2d

at 1391; see also Mitchell v. United States, 526 U.S. 314, 316-17 (1999) (Fifth

Amendment protects right to remain silent at sentencing as well as at trial; in determining

facts “which bear upon the severity of the sentence,” court may not draw adverse

inference from defendant’s failure to testify at sentencing). On the other hand, “[i]f a

       2
        The state contends we should regard review of this claim as forfeited for all but
fundamental error. We decline to do so, for the reasons cited in State v. Vermuele, 226
Ariz. 399, ¶¶ 6, 9, 249 P.3d 1099, 1101, 1102 (App. 2011) (declining to limit appeal
alleging sentencing error to fundamental error review where defendant “had no clear
procedural opportunity to challenge the rendition of sentence before it became final”).
                                            3
[convicted] defendant admits his guilt, this can be used as additional mitigating evidence,

provided the defendant is truly remorseful for his crime.” State v. Carriger, 143 Ariz.

142, 162, 692 P.2d 991, 1011 (1984).

¶5            As our supreme court has explained, “the suspension of sentence is not a

matter of right under any circumstances or in any instance, but is purely a matter of

discretion in the trial court, i.e., it is a matter of grace and not of right.” State v. Douglas,

87 Ariz. 182, 186, 349 P.2d 622, 624 (1960). Thus, probation “is a sentencing alternative

which a court may use in its sound judicial discretion when the rehabilitation of the

defendant can be accomplished with restrictive freedom rather than imprisonment,” State

v. Smith, 112 Ariz. 416, 419, 542 P.2d 1115, 1118 (1975), and a court need not “spell out

its reasons for either granting or denying probation,” Douglas, 87 Ariz. at 187, 349 P.2d

at 625. Moreover, because the trial judge is better able “‘to determine what is necessary

to rehabilitate [the defendant] to constructive activity,’” we will sustain “the imposition

of a lawful sentence and the denial of probation” absent an abuse of discretion. State v.

Moreno, 109 Ariz. 266, 266, 508 P.2d 730, 730 (1973), overruled on other grounds by

State v. Lewis, 109 Ariz. 466, 512 P.2d 9 (1973), quoting State v. Maberry, 93 Ariz. 306,

309, 380 P.2d 604, 606 (1963) (alteration added).

¶6            Although we have found no Arizona case on point, we agree with those

jurisdictions that have concluded the Fifth Amendment does not preclude a sentencing

court from considering a defendant’s refusal to answer questions about the offense in

determining whether he or she is a suitable candidate for probation. See, e.g., Dzul v.

State, 56 P.3d 875, 879-80, 883 (Nev. 2002) (Nevada law conditioning probation for sex

                                               4
offenders on favorable psychosexual evaluation did not constitute compulsion offending

Fifth Amendment; distinguishing between impermissibly increasing penalty due to

defendant’s silence and permissibly denying benefit of leniency, in form of probation, for

same reason); State v. Sosa, 926 P.2d 299, 301 (N.M. 1996) (same distinction; denial of

probation based on failure to cooperate did not violate Fifth Amendment; “we cannot see

how failure to suspend a statutorily-prescribed sentence can ever be characterized as

anything other than a ‘refusal to grant leniency’”) (citation omitted); State v. Souder, 105

S.W.3d 602, 608 (Tenn. Crim. App. 2002) (Fifth Amendment not violated by court’s

consideration of defendant’s silence in context of rehabilitative potential relevant to grant

of probation and not to determine facts of crime); State v. Pritchett, 69 P.3d 1278, ¶¶ 28,

36 (Utah 2003) (Fifth Amendment not violated by Utah statute limiting probation and

residential treatment to sex offenders who admit offense of conviction; statute “grants a

privilege to which the convicted child sex offender has no automatic right—placement in

a resident treatment facility—in exchange for the offender choosing to admit

culpability”).

¶7               Because Hernandez had no right to a suspension of sentence or placement

on probation, the trial court neither abused its discretion nor violated the Fifth

Amendment by declining to grant her that leniency. The court’s decision—based on an

assessment that Hernandez was unlikely to succeed in sex offender treatment because she

refused to discuss her offense—was not arbitrary or capricious, but grounded in the

critical consideration of her potential for rehabilitation. See Smith, 112 Ariz. at 419, 542

P.2d at 1118. Nor was the mitigated sentence the court imposed a “substantial penalty”

                                             5
for her silence, Lefkowitz, 431 U.S. at 805; rather, it was among the statutorily prescribed

dispositions for her offense. See A.R.S. § 13-702(A) and (D); see also Corbitt v. New

Jersey, 439 U.S. 212, 223-24 (1978) (defendant convicted after trial and therefore

ineligible for sentence reduction not “punished for exercising [Fifth Amendment] right”;

“defendants who are willing to plead [no contest] may be treated more leniently than

those who go to trial, but withholding the possibility of leniency from the latter cannot be

equated with impermissible punishment as long as our cases sustaining plea bargaining

remain undisturbed”).

¶8            We agree with the state that Hernandez’s reliance on Jacobsen v. Lindberg,

225 Ariz. 318, 238 P.3d 129 (App. 2010), is misplaced. In Jacobsen, this court granted a

probationer relief from an order requiring him to answer certain polygraph questions

because we concluded the probationer was entitled to assert his Fifth Amendment

privilege with respect to questions that might incriminate him in any future criminal

proceedings. 225 Ariz. 318, ¶ 13, 238 P.3d at 134. But unlike Hernandez, who had no

right to a suspension of her sentence, Jacobsen had a protected interest in the

“‘conditional liberty’” he had been granted when he was placed on probation. State v.

Eccles, 179 Ariz. 226, 228, 877 P.2d 799, 801 (1994), quoting Minnesota v. Murphy, 465

U.S. 420, 436 (1984); see also Escoe v. Zerbst, 295 U.S. 490, 492 (1935) (probation has

no constitutional basis but “comes as an act of grace to one convicted of a crime”); but cf.

Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 292-93 (1998) (even if state “has no

duty to authorize parole or probation, if it does exercise its discretion to grant conditional

liberty to convicted felons, any decision to deprive a parolee or a probationer of such

                                              6
conditional liberty must accord that person due process”) (Stevens, J., concurring in part

and dissenting in part).

¶9              Moreover, the court in Jacobsen recognized our supreme court’s conclusion

that, although the state may neither require a waiver of Fifth Amendment rights as a

condition of probation nor revoke a defendant’s probation “‘for a valid assertion of the

privilege against self-incrimination, . . . [a] [d]efendant [on probation] must truthfully

answer all questions that could not incriminate him in future criminal proceedings,” and

“‘[t]o the extent he has lost the privilege on offenses for which he has been convicted, he

must answer, even if his answers may be evidence of probation violations and result in

revocation.’” Jacobsen, 225 Ariz. 318, ¶ 6, 238 P.3d at 132, quoting Eccles, 179 Ariz. at

228, 877 P.2d at 801 (alterations added; footnote omitted in Jacobsen). Here, Hernandez

apparently refused to answer any questions related to the offense for which she had been

convicted. Thus, in contrast to the defendant in Jacobsen, she has not suggested any

answers she might have given could have incriminated her in future proceedings. See id.

¶ 4. Nor has she asserted that anyone attempted to coerce her to make statements by

“either expressly or by implication” threatening punishment for a valid assertion of her

Fifth Amendment rights. Murphy, 465 U.S. at 435 (constitutionally impermissible for

state to create “classic penalty situation” involving “threat of punishment for reliance on

the privilege”); see also Eccles, 179 Ariz. at 228, 877 P.2d at 801 (probation condition

requiring probationer “to waive his right against self-incrimination under penalty of

having his probation revoked” impermissible attempt to coerce waiver even if coercion

ineffective).

                                             7
                                        Disposition

¶10          The trial court did not abuse its discretion or violate Hernandez’s Fifth

Amendment rights in sentencing her to a mitigated prison term.       Accordingly, her

conviction and sentence are affirmed.




                                             /s/ Virginia C. Kelly
                                             VIRGINIA C. KELLY, Judge


CONCURRING:

/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge


/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge




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