                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                            IN RE MH 2017-006308

                            No. 1 CA-MH 18-0014
                                 FILED 10-4-2018


          Appeal from the Superior Court in Maricopa County
                         No. MH2017-006308
          The Honorable Nicole M. Brickner, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Molly Bonsall Adrian, Aubrey Joy Corcoran
Counsel for Appellee



                       MEMORANDUM DECISION

Chief Judge Samuel A. Thumma delivered the decision of the Court, in
which Presiding Judge James P. Beene and Judge James B. Morse Jr. joined.
                           IN RE MH2017-006308
                            Decision of the Court



T H U M M A, Chief Judge:

¶1            Appellant challenges an order involuntarily committing him
to the Arizona State Hospital (Hospital) for behavioral health treatment,
after he had been found Guilty Except Insane (GEI). Because Appellant has
shown no reversible error, the order is affirmed.

                 FACTS AND PROCEDURAL HISTORY

¶2            In April 2016, Appellant was adjudicated GEI, placed under
the jurisdiction of the Psychiatric Security Review Board (PSRB) and
committed to the Hospital for 10.5 years. See Ariz. Rev. Stat. (A.R.S.) §§ 13-
502(D), -3994(A)(2018).1 In October 2017, the Hospital filed a petition for
court-ordered treatment, alleging Appellant was “persistently or acutely
disabled” and “unable or unwilling to accept treatment voluntarily.” See
A.R.S. § 36-540(A)(2) & (3). As required by A.R.S. § 36-533(B), the petition
was supported by the affidavits of Drs. B. and C.

¶3             The court held an evidentiary hearing on the petition in early
December 2017, after twice continuing the hearing: once so Appellant could
obtain an independent medical evaluation and once because Appellant was
unwell. Counsel stipulated to the admission of Dr. B.’s and Dr. C.’s
affidavits, the medication affidavit and Dr. C.’s testimony as an expert. Dr.
C., two Hospital staff members and Appellant testified.

¶4            During cross-examination, Dr. C. testified that Appellant was
not given an opportunity to choose the second doctor and, instead, Dr. B.
was simply assigned. Appellant’s counsel then argued that the petition was
deficient because A.R.S. § 36-501(12)(a)(i) (“The person against whom a
petition has been filed shall be notified that the person may select one of the
physicians.”) had not been strictly followed. In response to the State’s
argument that Appellant “was given an opportunity for an independent
evaluation,” Appellant’s counsel stated that opportunity satisfied another
requirement, but that he had been denied “his right to be notified . . . for the
original evaluation.”




1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


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                            Decision of the Court

¶5             After supplemental briefing, the court granted the petition.
Although noting that the State had not strictly complied with the statute,
the court found that failure was harmless, adding that Appellant had
received an independent evaluation. The court also found by clear and
convincing evidence that Appellant was (1) persistently and acutely
disabled, (2) in need of psychiatric treatment and (3) unwilling or unable to
accept voluntary treatment. Finding no appropriate or available alternative,
the court ordered Appellant to remain at the Hospital for inpatient
treatment for no longer than 180 days, during which time the Hospital
could administer medication involuntarily.

¶6           This court has jurisdiction over Appellant’s timely appeal
pursuant to A.R.S. §§ 36-546.01 and 12-2101(A)(10).

                               DISCUSSION2

¶7             Appellant argues the treatment order is improper because the
State did not strictly comply with the notification provision of section 36-
501(12)(a)(i). Although compliance with the statute is reviewed de novo, In
re MH2010-002348, 228 Ariz. 441, 444 ¶ 7 (App. 2011), the facts underlying
the order are viewed “in the light most favorable to upholding the superior
court’s judgment,” In re MH2015-003266, 240 Ariz. 514, 515 ¶7 (App. 2016)
(citation omitted). Absent an error of law, this court will not set aside a
treatment order unless “it is clearly erroneous or unsupported by any
credible evidence.” MH2010-002348, 228 Ariz. at 444 ¶ 7 (citation omitted).

¶8            Appellant correctly argues that, in general, the statutes
governing involuntary treatment — A.R.S. §§ 36-501 to -546.01 — require
strict compliance, given that their application “result[s] in a significant
deprivation of liberty.” Id. The significant exception to this strict compliance
requirement, however, is for proceedings involving individuals who have
been adjudicated GEI. MH2010-002348, 228 Ariz. at 447 ¶ 19.

¶9            The appellant in MH2010-002348 had been adjudicated GEI
and then challenged a subsequent order for involuntary treatment. 228
Ariz. at 443 ¶ 1. Among other things, he argued the State neither filed a
petition for evaluation nor allowed him to choose one of his evaluating
physicians as specified in section 36-501(12)(a)(i). Id. at 445 ¶ 13 & n.4.
Accordingly, he argued the State “did not strictly comply with pre-petition


2Although the 180-day inpatient treatment period has expired, the court
considers the merits of Appellant’s arguments given the interests involved.
See In re MH2015-003266, 240 Ariz. 514, 515 ¶ 6 (App. 2016).


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                            Decision of the Court

procedures mandated for civil commitment proceedings.” Id. at 445 ¶ 13.
After analyzing the applicable law, and recognizing appellant was not
allowed to choose one of the evaluating physicians, the court affirmed the
commitment order. Id. at 447 ¶ 19. In doing so, the court concluded that the
added layer of procedural protections involved in the GEI adjudication
proceedings meant the generally-applicable “strict compliance” concepts
did not apply to involuntary treatment proceedings involving an
individual previously adjudicated GEI. Id. Stated differently, given the GEI
adjudication, the court concluded that the hospital must “follow[] the
petition for treatment format outlined in the civil commitment statutes but
does not [need to] strictly comply with the pre-petition procedures.” Id.;
accord In re MH2008-000028, 221 Ariz. 277 (App. 2009) (determining that
strict compliance with the statutory procedures for civil commitment is not
required when a possible treatment order originates from a court’s
evaluation under Ariz. R. Crim. P. 11).

¶10              Appellant attempts to distinguish these cases because,
factually, they addressed pre-petition procedures while, in this case, the
Hospital “elected to proceed with a formal petition for court ordered
treatment . . . [meaning] it was required to strictly comply with the statutes
governing those petitions, including A.R.S. § 36-501(12)(a)(i).” This
assertion suggests that section 36-501(12)(a)(i) is not always a pre-petition
procedure. However, Appellant has not articulated — nor can the court
identify — any distinguishing factor that would render section 36-
501(12)(a)(i) a pre-petition procedure in MH2010-002348, but a substantive
right requiring strict compliance here.

¶11           The appellant in MH2010-002348 was adjudicated GEI almost
three years before the hospital petitioned for court ordered treatment, and
despite the State’s failure to comply with section 36-501(12)(a)(i), the
appellant received an independent medical evaluation. 228 Ariz. at 444 ¶ 3.
Here, the Appellant was adjudicated GEI slightly more than a year before
the Hospital filed its petition, and despite the State’s failure to comply with
section 36-501(12)(a)(i), Appellant received an independent medical
evaluation. These similarities show that this case is governed by the same
legal standards (including that strict compliance is not required given the
GEI adjudication) set forth in MH2010-002348.

¶12          Simply put, “the State need not strictly comply with the civil
commitment procedures for evaluation, as contrasted with treatment, when
a person has been adjudicated GEI and is presently under the supervision
of the PSRB.” MH2010-002348, 228 Ariz. at 445 ¶ 13 n.4. Because Appellant
has been adjudicated GEI, is presently under the supervision of the PSRB,


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                           IN RE MH2017-006308
                            Decision of the Court

and did not allege non-compliance with any of the substantive statutes
pertaining to court-ordered treatment, see A.R.S. §§ 36-533 to -544, he has
shown no error.3

                               CONCLUSION

¶13           The order of commitment for involuntary treatment is
affirmed.




                            AMY M. WOOD • Clerk of the Court
                            FILED: AA




3Given this conclusion, which affirms the order on a different legal theory
than adopted by the superior court, this court need not (and expressly does
not) address that court’s harmless error analysis. See State v. Dugan, 113
Ariz. 354, 356 (1976) (explaining judgment will be upheld if the correct legal
decision was reached even if the reasoning was based on different
grounds).


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