                           IN THE
           ARIZONA COURT OF APPEALS
                       DIVISION TWO


                    STEVEN LANE FULLER,
                         Petitioner,

                              v.

HON. ROBERT CARTER OLSON, JUDGE OF THE SUPERIOR COURT OF THE
      STATE OF ARIZONA, IN AND FOR THE COUNTY OF PINAL,
                          Respondent,

                             and

         THE STATE OF ARIZONA, BY AND THROUGH THE
                 PINAL COUNTY ATTORNEY,
                    Real Party in Interest.



                    STEVEN LANE FULLER,
                     Petitioner/Appellant,

                              v.

                   THE STATE OF ARIZONA,
                    Respondent/Appellee.

                   No. 2 CA-SA 2013-0053
                   No. 2 CA-HC 2013-0005
                       (Consolidated)

                  Filed November 29, 2013


        Appeal and Special Action Proceeding from the
               Superior Court in Pinal County
            Nos. CV201200148 and CV201300719
                         FULLER v. OLSON
                         Opinion of the Court


        JURISDICTION ACCEPTED; RELIEF GRANTED


                              COUNSEL

April P. Elliott, Pinal County Public Defender
By Lisa M. Surhio and David T. Wilkison, Assistant Public Defender,
Florence1
Counsel for Petitioner/Appellant

M. Lando Voyles, Pinal County Attorney
By Ronald S. Harris and Ivan S. Abrams, Deputy County Attorneys,
Florence
Counsel for Real Party in Interest/Respondent/Appellee




                              OPINION

Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Espinosa concurred.


E C K E R S T R O M, Judge:

¶1            In this consolidated special action and appeal from the
trial court’s denial of a petition for writ of habeas corpus, Steven
Fuller seeks relief from his continued detention on a petition filed by
the state alleging he is a sexually violent person. Specifically, he
maintains that his rights under Arizona statutes and the Due Process
Clauses of the Arizona and United States Constitutions have been
violated because he did not receive a trial within 120 days of the
state’s filing of the petition, as required by A.R.S. § 36-3706, and

      1Although   Lisa M. Surhio has left the Pinal County Public
Defender’s Office and was not counsel of record at the time this
opinion was filed, she is nonetheless noted as counsel because she
authored the briefs and presented the oral argument in this case.
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                         FULLER v. OLSON
                         Opinion of the Court
because he did not receive appointment of counsel, a professional
evaluation, or a prompt probable cause hearing in conformity with
A.R.S. §§ 36-3704(C), 36-3705(C), and 36-3705(G). In essence, we
must determine whether the state may continue to detain a person
and proceed with a petition alleging the person is sexually violent
when it has neglected to pursue that petition for over a year, and
when the person now has been detained without a trial for over
twenty months. For the following reasons, we accept jurisdiction
and grant relief.

                Factual and Procedural Background

¶2           On January 19, 2012, the state filed a petition and order
for detention alleging that respondent, Steven Fuller, was a sexually
violent person (SVP) under A.R.S. § 36-3701(7). The Pinal County
Superior Court found probable cause to believe Fuller was an SVP,
ordered his detention, and ordered the clerk of the court to notify
the public defender’s office. The court issued an order and notice
that Fuller had ten days to request a probable cause hearing and that
if he did not, the hearing would be waived. However, the public
defender’s office did not receive notice of the petition and was not
appointed to represent Fuller. Moreover, the notice sent to Fuller
did not include contact information for the court or the public
defender’s office, and Fuller did not request a probable cause
hearing.

¶3           Pursuant to the trial court’s order, Fuller was
transferred from the Arizona Department of Corrections to the
Arizona State Hospital (ASH) on January 23, 2012. For over a year,
the state overlooked Fuller’s case while he remained in detention on
the petition. No court dates were sought or scheduled and the state
took no steps to prosecute the petition. Although ASH provided
housing and general medical care, Fuller did not receive treatment
designed to address his alleged propensity for sexual violence. In
February 2013, the Pinal County Superior Court Director of
Treatment Services notified the state that she had received a bill for
Fuller’s care indicating that his case still was in the pretrial phase.
On March 5, 2013, the state filed a motion to set a hearing in Fuller’s
case and to appoint counsel for Fuller. On March 11, the court set a


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                          FULLER v. OLSON
                          Opinion of the Court
status review hearing and appointed the Pinal County Public
Defender’s Office to represent Fuller.

¶4            Fuller then filed a motion to dismiss the petition for
detention and a petition for a writ of habeas corpus based on the
trial court’s failure to appoint counsel, schedule a timely probable
cause hearing, and conduct a trial within 120 days, as provided by
§§ 36-3704, 36-3705, and 36-3706. The trial court denied his petition
and motion, finding it was not required to appoint counsel, Fuller
had waived his right to a probable cause hearing, and the language
in § 36-3706 stating that a court “shall conduct a trial” within 120
days of the petition is merely “directory.” The court also concluded
that, even if the provision is mandatory, the delay was occasioned
by the court, and § 36-3706 authorized continuation of the trial so
long as Fuller had not been substantially prejudiced, which the court
so found. This consolidated appeal and petition for special action
followed the entry of the court’s order.

¶5            We have jurisdiction to hear the habeas appeal pursuant
to A.R.S. § 12-120.21(A)(1). See Drury v. Burr, 107 Ariz. 124, 125, 483
P.2d 539, 540 (1971) (“Court of Appeals . . . has appellate jurisdiction
over [habeas] causes originating in the Superior Court”). We
likewise have jurisdiction to hear special actions pursuant to
§ 12-120.21(A)(4). Our decision to accept special action jurisdiction
in a particular case is discretionary. See State ex rel. Romley v. Fields,
201 Ariz. 321, ¶ 4, 35 P.3d 82, 84 (App. 2001). Acceptance of special
action jurisdiction is appropriate when a case presents a novel
question of statewide importance that is also a question of law. Id.
Here, we are presented with two such questions: (1) whether, under
the circumstances here, the state violated the requirements of
§ 36-3706 by failing to bring Fuller to trial within 120 days, and (2) if
the statutory deadline has been violated, what remedy is
appropriate. For this court to accept special action jurisdiction, it
also is necessary that the petitioner have no “equally plain, speedy,
and adequate remedy by appeal.” Ariz. R. P. Spec. Actions 1(a).
Although Fuller’s petition for habeas corpus may entitle him to
release, it does not provide for dismissal of the proceeding against
him. See State v. Abbott, 103 Ariz. 336, 339, 442 P.2d 80, 83 (1968)
(“The sole function of habeas corpus is to obtain the release of one
unlawfully detained.”).        We therefore accept special action
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                         Opinion of the Court
jurisdiction and, for the following reasons, find relief appropriate
under both the habeas corpus and special action petitions.

                             Discussion

¶6          Section 36-3706 provides in pertinent part as follows:

                   Within one hundred twenty days
            after a petition is filed pursuant to § 36-
            3704, the court shall conduct a trial to
            determine if the person named in the
            petition is a sexually violent person. . . . The
            judge may continue the trial at the request
            of either party on a showing of good cause
            or on its own motion if the person will not
            be substantially prejudiced.

Fuller contends the state’s failure to comply with the plain language
of this provision requires that the petition be dismissed. The state
counters that the word “shall” in § 36-3706 is directory rather than
mandatory and, therefore, the state violated no statutory
requirement when it failed to bring Fuller to trial within 120 days of
the petition—the same construction adopted by the trial court. The
parties each support their arguments by citing well-established
canons of statutory construction that have been viewed as
dispositive in our state’s jurisprudence.2 In this case, however, we

      2Fuller  observes that, when the legislature uses the word
“shall” and the word “may” in the same paragraph, we presume
lawmakers “acknowledged the difference and intended each word
to carry its ordinary meaning.” Sempre Ltd. P’ship v. Maricopa
County, 255 Ariz. 106, ¶ 11, 235 P.3d 259, 262 (App. 2010). Section
36-3706 states that the court “shall” conduct a trial within 120 days
of the petition, but that the judge “may” continue the trial in certain
circumstances. Fuller also argues that SVP proceedings are similar
in terms of the deprivation of liberty to general civil commitments,
in which statutory requirements are mandatory. See In re Pinal Cnty.
Mental Health No. MH-201000029, 225 Ariz. 500, ¶ 5, 240 P.3d 1262,
1263 (App. 2010). Finally, the statute’s careful articulation of the
specific circumstances under which the 120-day limit might be
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                          FULLER v. OLSON
                          Opinion of the Court
need not reach the question of whether this time limit is mandatory
or directory.

¶7            If a statute is mandatory, failure to comply renders the
proceedings void and invalid, and dismissal is mandated without
any further inquiry. HCZ Constr., Inc. v. First Franklin Fin. Corp., 199
Ariz. 361, n.1, ¶¶ 19-20, 18 P.3d 155, 158 n.1, 160 (App. 2001) (“The
essential difference between a mandatory and a directory provision
is that failure to comply with a directory provision does not
invalidate the proceeding to which it relates, while failure to follow
a mandatory provision does.”). However, even if a statute is
directory, a proceeding may be dismissed for failure to comply with
a statutory time limit if the defendant will be prejudiced thereby.
See, e.g., Dep’t of Revenue v. S. Union Gas Co., 119 Ariz. 512, 514, 582
P.2d 158, 160 (1978) (finding department of revenue’s appeal from
tax board’s valuation of property not invalid for failure to hold trial
within ninety days, and therefore would not be dismissed “without
more, such as a showing that the opposing party has suffered
substantial detriment”); Joshua J. v. Ariz. Dep’t of Econ. Sec., 230 Ariz.
417, ¶¶ 18-22, 286 P.3d 166, 171-72 (App. 2012) (finding violation of
time limit in dependency proceeding did not require dismissal

exceeded also suggests the legislature intended the time limit to be
mandatory. See § 36-3706 (specifying continuances may be granted
only for “good cause” or in absence of “substantial[] prejudice[]”).

       The state responds that “[a]s a general rule, if a statute ‘states
the time for performance of an official duty, without any language
denying performance after a specified time, it is directory.’” Forino
v. Ariz. Dep’t of Transp., 191 Ariz. 77, 81, 952 P.2d 315, 319 (App.
1997), quoting Watahomigie v. Ariz. Bd. of Water Quality Appeals, 181
Ariz. 20, 32, 887 P.2d 550, 562 (App. 1994). Section 36-3706 does not
prescribe any specific remedy if a trial does not occur within 120
days. The state further notes that “shall” “may be deemed directory
when the legislative purpose can best be carried out by such
construction,” HCZ Constr., Inc. v. First Franklin Fin. Corp., 199 Ariz.
361 ¶ 11, 18 P.3d 155, 158 (App. 2001), and the state claims the
legislative purpose of protecting the public from a class of
potentially dangerous persons is best suited by interpreting the
provision as directory.
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                         FULLER v. OLSON
                         Opinion of the Court
because statute directory and father not prejudiced); Forino v. Ariz.
Dep’t of Transp., 191 Ariz. 77, 79-81, 952 P.2d 315, 317-19 (App. 1997)
(finding failure to hold implied consent hearing on driver’s license
suspension did not invalidate proceeding absent prejudice). Here,
however, where a violation of the statutory time limit occurred and
prejudice to Fuller resulted, dismissal is required regardless of
whether this provision is directory or mandatory.

                         Statutory Violation

¶8            It is uncontested that Fuller did not receive a trial
within the 120-day time limit provided by § 36-3706 and that no trial
date was ever set during that time period. The trial court
nonetheless concluded that no statutory violation occurred, because
§ 36-3706 provided the court with the express authority to continue
the case on its own motion so long as Fuller would not be
“substantially prejudiced.” In the context of legal procedure, the
word “continue” carries a specific meaning. Black’s Law Dictionary
316 (7th ed. 1999) defines a continuance as “[t]he adjournment or
postponement of a trial or other proceeding to a future date.” In the
procedural rules applicable to SVP proceedings, see § 36-3704(B), a
postponement may be granted “when an action has been set for trial
on a specified date by order of the court.” Ariz. R. Civ. P. 38.1(h).
Moreover, we are required to construe related statutory provisions
in harmony with one another. T.P. Racing, L.L.L.P. v. Ariz. Dep’t of
Racing, 223 Ariz. 257, ¶ 9, 222 P.3d 280, 282 (App. 2009). The first
sentence of § 36-3706 sets forth a clear procedural limit on how long
a person may be confined without a trial. We cannot, in harmony
with that conclusion, also posit that its last sentence would authorize
courts to bypass the statutory deadline based on motions urged for
the first time many months after the deadline had passed.

¶9           Here, the trial date could neither be “adjourned” nor
“postponed,” because no trial date had ever been set. For this
reason, the trial court did not “continue” Fuller’s trial. Rather, the
court asserted its authority to set a trial date for the first time. The
court therefore erred when it interpreted § 36-3706 as authorizing it
to “continue” Fuller’s trial when no trial date previously had been
set and when the court considered the matter for the first time ten


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                          FULLER v. OLSON
                          Opinion of the Court
months after the expiration of the statutory deadline. For the above
reasons, we must conclude that the statute was violated.

                               Remedy

¶10           As discussed above, even if a statute is directory, failure
to comply may nonetheless mandate dismissal if the defendant has
been prejudiced. See S. Union Gas, 119 Ariz. at 514, 582 P.2d at 160;
Joshua J., 230 Ariz. 417, ¶ 22, 286 P.3d at 172; Forino, 191 Ariz. at 81,
952 P.2d at 319. The state maintains that we should borrow our
standards for determining prejudice here from those our state has
developed when evaluating violations of a criminal defendant’s
right to a speedy trial under Rule 8, Ariz. R. Crim. P. In that context,
prolonged confinement alone does not require dismissal of the case
with prejudice. Cf. State v. Soto, 117 Ariz. 345, 348, 572 P.2d 1183,
1186 (1977) (discussing Sixth Amendment speedy trial standard).
Indeed, the length of delay is the “least conclusive” factor in the
analysis. Soto, 117 Ariz. at 348, 572 P.2d at 1186. The most
important is the prejudice caused to the defendant. Id. This factor
primarily is concerned with “prejudice in preparing for and
conducting the defense,” but also may include “interference with
liberty, disruption of employment, draining of financial resources,
curtailment of association, public obloquy, and anxiety in defendant,
his family and friends.” Id.

¶11           There are significant differences, however, between
criminal prosecutions and civil SVP proceedings that arguably
justify differing standards for evaluating prejudice. A criminal trial
is a proceeding designed to find facts as to specific events that
occurred in the past. The essential questions in the proceeding do
not change with the passage of time even if witnesses’ memories
might erode. Thus, there is a rationale for focusing on “‘the
possibility that the defense [was] impaired’” when determining the
appropriate remedy for an impermissibly delayed trial. State v.
Parker, 231 Ariz. 391, ¶¶ 9, 16, 296 P.3d 54, 61, 62 (2013), quoting
Barker v. Wingo, 407 U.S. 514, 532 (1972).

¶12          Civil commitment proceedings, by contrast, seek to
determine whether a person currently has a mental illness that
presents a risk of future harm, a status which is not fixed in time and
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                         FULLER v. OLSON
                         Opinion of the Court
which all litigants hope will change for the better with appropriate
treatment. See A.R.S. §§ 36-533(A), 36-540(A), 36-3701(7)(b), 36-3707.
In this context, the Rule 8 prejudice standard—which focuses
primarily on the effect of any trial delay on the ability to present a
defense—finds little traction, as the trial necessarily focuses on a
person’s current status. Under such circumstances, a person could
rarely, if ever, show trial prejudice from a delay.

¶13           Moreover, SVP civil commitment proceedings are
specifically aimed at providing services to ameliorate the condition
causing confinement. See Martin v. Reinstein, 195 Ariz. 293, ¶ 36, 987
P.2d 779, 793 (App. 1999); see also 1995 Ariz. Sess. Laws, ch. 257, § 10
(noting SVP procedure created to address specific treatment needs
of SVPs). When persons who ultimately are determined to be
sexually violent are denied timely process under title 36, they suffer
commensurate delays in the professional treatment for their
condition, see A.R.S. § 36-3712(B), and in the periodic reviews of
their progress that could result in their release from confinement.
See A.R.S. § 36-3708.

¶14           Finally, unlike in criminal proceedings, where a person
who is sentenced receives credit for any pretrial incarceration, see
A.R.S. § 13-712(B); Ariz. R. Crim. P. 26.10(b)(2), and might thereby
be made whole if ultimately convicted of the charges, a person
subjected to civil SVP commitment simply has his or her
commitment prolonged. Thus, those facing civil SVP commitment
have nothing to mitigate the deprivation of liberty, curtailment of
association, potential financial strain, and frustration likely to be
caused by confinement preceding the adjudication. See State v.
Tucker, 133 Ariz. 304, 309, 651 P.2d 359, 364 (1982) (noting prejudicial
effects separate from those affecting criminal defense on merits).
The prejudice suffered from a delayed civil SVP commitment,
therefore, is similar, but not identical, to that suffered from a
delayed criminal adjudication. For the above reasons, we conclude
that, in the SVP context, a lengthy improper delay in providing a
trial can, standing alone, support a finding of prejudice. We do not
purport to address all the circumstances a trial court might
encounter in evaluating prejudice from trial delays arising in future
cases nor need we specify the precise length of delay that would
require a finding of prejudice. But, given the extraordinary delay in
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                         FULLER v. OLSON
                         Opinion of the Court
Fuller’s trial—all while he remained in confinement—we are
constrained to conclude that he was substantially prejudiced.

¶15           But even assuming that a prejudice standard focusing
on the impairment of a defendant’s trial presentation is appropriate
here, Fuller can demonstrate this kind of prejudice as well. While
Fuller was confined in the pretrial detention unit at ASH, he did not
receive the full range of treatment that would have been available to
him had he been afforded his trial and been found to be an SVP. In
particular, the director of the state’s SVP program testified that
Fuller did not receive “individual and group therapy that is directed
specifically at . . . psychosexual tendencies . . . to help [him]
understand that behavior and ultimately change that behavior so
[he] can return to society.” Furthermore, the petition to commit
Fuller as an SVP was filed on January 19, 2012. Therefore his trial
should have commenced by May 18, 2012. See § 36-3706. Had Fuller
been found to be sexually violent after a timely trial, he would have
been entitled to an annual examination in May of 2013 to assess
whether his condition had improved, potentially making him
eligible for “conditional release to a less restrictive alternative.”
§ 36-3708(A). But the statutory violation here denied him treatment
that might have alleviated his condition to the point where he was
eligible for conditional release upon his yearly review, an event that
would already have occurred in absence of that violation.
Consequently, Fuller’s ability to make a showing sufficient to secure
a potential release upon yearly review was eliminated by the delay.
Because Fuller was prejudiced by the delay under any definition of
prejudice, the statutory violation requires Fuller’s release and
dismissal of the petition.3


      3Because   we find Fuller’s statutory right to a timely trial was
violated, we need not reach his other claims. See Fragoso v. Fell, 210
Ariz. 427, ¶ 6, 111 P.3d 1027, 1030 (App. 2005) (“’Courts should
decide cases on nonconstitutional grounds if possible, avoiding
resolution of constitutional issues, when other principles of law are
controlling and the case can be decided without ruling on the
constitutional questions.’”), quoting In re $315,900.00 U.S. Currency,
183 Ariz. 208, 211, 902 P.2d 351, 354 (App. 1995).


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                         FULLER v. OLSON
                         Opinion of the Court


¶16           We recognize that the effect of our opinion today will be
the release of a person who the state maintains has a mental disorder
that makes him dangerous. But, in rendering this opinion, we may
not assume that Fuller would be deemed sexually violent before the
state has proven that fact at a trial—and before Fuller has been
permitted to rebut the state’s evidence with his own. “[T]he State
has a duty to prosecute these cases diligently and th[e] trial courts
also have a duty to manage these cases to comply with the 120-day
deadline . . . .” Ugalde v. Burke, 204 Ariz. 455, ¶ 13, 65 P.3d 103, 106
(App. 2003). Had the state and trial court done so, this grave
violation would not have occurred.4 Because Fuller has been held
for over a year and a half, in violation of the law of Arizona, he is
entitled to relief.

                             Disposition

¶17          For the foregoing reasons, we grant Fuller’s writ of
habeas corpus and order his release. Pursuant to Fuller’s petition for
special action, we likewise order that the SVP petition be dismissed.




      4The judge named as respondent in this special action was not
the judge who presided over Fuller’s case when the 120-day limit
was violated.
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