                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA

         STATE OF ARIZONA EX REL. WILLIAM G. MONTGOMERY,
                   MARICOPA COUNTY ATTORNEY,
                             Petitioner,

                                   v.

 THE H ONORABLE MICHAEL W. KEMP, JUDGE OF THE SUPERIOR COURT OF
    THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
                        Respondent Judge,

                        APOLINAR ALTAMIRANO,
                         Real Party in Interest.

                          No. CR-19-0274-PR
                         Filed August 17, 2020

       Special Action from the Superior Court in Maricopa County
                The Honorable Michael W. Kemp, Judge
                         No. CR2015-103569-001
                    REVERSED AND REMANDED

          Decision Order of the Court of Appeals, Division One
                         No. 1 CA-SA 19-0162
                          Filed August 8, 2019
                              VACATED


COUNSEL:

Allister Adel, Maricopa County Attorney, Julie A. Done, Jeffrey L. Sparks
(argued), Amanda M. Parker, Kristin Larish, Deputy County Attorneys,
Phoenix, Attorneys for State of Arizona

Gregory J. Kuykendall (argued), Kuykendall & Associates, Tucson, Knapp
Counsel for Apolinar Altamirano

Emily Wolkowicz, Jamaar Williams, Deputy Public Defenders, Phoenix,
Attorneys for Apolinar Altamirano
           STATE V. HON. KEMP/APOLINAR ALTAMIRANO
                         Opinion of the Court


Colleen Clase, Thomas E. Lordan, Arizona Voice for Crime Victims,
Phoenix, Attorneys for Crime Victims

Mark Brnovich, Arizona Attorney General, Lacey Stover Gard, Chief
Counsel, Laura P. Chiasson, Assistant Attorney General, Criminal Appeals
Section, Tucson, Attorneys for Amicus Curiae The Arizona Attorney
General

Emily Skinner, Arizona Capital Representation Project, Phoenix; David J.
Euchner, Pima County Public Defender’s Office, Tucson; and Charlotte G.
Merrill, Federal Public Defender’s Office, Phoenix, Attorneys for Amici
Curiae Arizona Capital Representation Project and Arizona Attorneys for
Criminal Justice

Rhonda Elaine Neff, Kimerer & Derrick, P.C., Phoenix, Attorney for Amicus
Curiae American Association on Intellectual and Developmental
Disabilities


JUSTICE BEENE authored the Opinion of the Court, in which VICE CHIEF
JUSTICE TIMMER and JUSTICES BOLICK, GOULD, and LOPEZ joined. ∗


JUSTICE BEENE, Opinion of the Court:

¶1            In Atkins v. Virginia, 536 U.S. 304 (2002), the United States
Supreme Court declared that a person with an intellectual disability cannot
be sentenced to death. A finding of intellectual disability requires a mental
deficit “existing concurrently with significant impairment in adaptive
behavior” before the defendant is eighteen. A.R.S. § 13-753(K)(3). In this
case, we discuss the impact of the recent United States Supreme Court cases,
Moore v. Texas, 137 S. Ct. 1039 (2017) (“Moore I”), and Moore v. Texas, 139 S.
Ct. 666 (2019) (“Moore II”), on § 13-753(K)(1)’s definition of “adaptive
behavior.” We hold that Moore I and Moore II did not eliminate § 13-
753(K)(1)’s requirements that the trial court: (1) conduct an overall
assessment, as set forth in State v. Grell, 212 Ariz. 516, 529 ¶ 62 (2006) (“Grell



∗     Chief Justice Robert Brutinel and Justice William G. Montgomery
have recused themselves from this matter.



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           STATE V. HON. KEMP/APOLINAR ALTAMIRANO
                         Opinion of the Court
II”), to determine if the defendant has a deficit in any life-skill category;1
and (2) if a deficit exists, determine whether it affects the defendant’s ability
to meet “the standards of personal independence and social responsibility
expected of defendant’s age and cultural group.”

                              BACKGROUND

¶2             On January 22, 2015, Altamirano shot and killed a
convenience store clerk while attempting to purchase a pack of cigarettes.
After killing the clerk, Altamirano left the store and was later apprehended
by police. The State indicted Altamirano for first degree murder and filed
a Notice of Intent to Seek the Death Penalty.

¶3            The trial court ordered Altamirano to undergo an intelligence
quotient (“IQ”) prescreening evaluation pursuant to § 13-753(B).
Altamirano initially objected to the evaluation. However, a few months
before trial, Altamirano requested an IQ evaluation, and the trial court
granted the request. Based on Altamirano’s evaluation, the trial court held
an evidentiary hearing to determine if he was intellectually disabled. See
§ 13-753(G). At the conclusion of the hearing, the court found that
Altamirano met his burden of proving intellectual disability and dismissed
the State’s Notice of Intent to Seek the Death Penalty.

¶4              The State filed a special action with the court of appeals
alleging the trial court erred by ignoring the statutory definition of
intellectual disability, which requires an overall assessment of Altamirano’s
ability to meet society’s expectations of him. The court of appeals issued a
decision order accepting jurisdiction but denying relief, finding “the judge
discussed both adaptive weaknesses and adaptive strengths in the
conceptual, social, and practical domains.” It further determined this was
not “clear error because the respondent judge heard competent lay and
expert testimony to support an intellectual disability finding.”




1       The “life-skill” categories are the three adaptive behavior
categories—conceptual, practical, and social—identified by the Diagnostic
and Statistical Manual of Mental Disorders (“DSM-5”) and the American
Association on Intellectual and Developmental Disabilities (“AAIDD”). See
American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders 37 (5th ed. 2013) [hereinafter DSM-5]; AAIDD, User’s Guide:
Intellectual Disability: Definition, Classification, and Systems of Supports 1
(11th ed. 2012) [hereinafter AAIDD Guide].
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           STATE V. HON. KEMP/APOLINAR ALTAMIRANO
                         Opinion of the Court
¶5            We accepted review to determine whether Arizona’s
statutory framework for determining intellectual disability complies with
recent Supreme Court opinions, which is a matter of statewide concern. We
have jurisdiction pursuant to article 6, section 5(3) of the Arizona
Constitution.

                               DISCUSSION

¶6              In Arizona, “‘[i]ntellectual disability’ means a condition
based on a mental deficit that involves significantly subaverage general
intellectual functioning, existing concurrently with significant impairment
in adaptive behavior, where the onset of the foregoing conditions occurred
before the defendant reached the age of eighteen.” § 13-753(K)(3) (emphasis
added). The parties dispute whether the trial court properly applied
§ 13-753(K)(1), which defines “adaptive behavior,” in light of the Supreme
Court’s recent decisions in Moore I and Moore II. We review matters of
statutory interpretation and constitutional law de novo. Grell II, 212 Ariz.
at 521 ¶ 22. We presume a statute is constitutional and, where possible,
construe it to preserve its constitutionality. State v. Thompson, 204 Ariz. 471,
474 ¶ 10 (2003).

               I.     Intellectual Disability Developments

¶7             In Atkins, the Supreme Court addressed the constitutionality
of imposing the death penalty on intellectually disabled individuals. 536
U.S. at 307. There, Atkins—who had been convicted of murder and
sentenced to death—claimed he was intellectually disabled based on
evidence that he was “mildly mentally retarded,” as defined by the medical
community, and that the imposition of the death penalty on an
intellectually disabled person violated the Eighth Amendment. Id. at 307–
10 & n.3, 318. The Supreme Court agreed, concluding that executing the
intellectually disabled would not “advance the deterrent or the retributive
purpose of the death penalty.” Id. at 321. It concluded that imposing the
death penalty on intellectually disabled defendants was an excessive
punishment in violation of the Eighth Amendment. Id.

¶8             In barring enforcement of the death penalty against the
intellectually disabled, the Supreme Court left “to the State[s] the task of
developing appropriate ways to enforce the constitutional restriction upon
[their] execution of sentences” and determine who is “in fact” intellectually
disabled. Id. at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416–17
(1986)).


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           STATE V. HON. KEMP/APOLINAR ALTAMIRANO
                         Opinion of the Court
¶9             The Arizona legislature enacted A.R.S. § 13-703.02(K)2 to
enforce the constitutional prohibition on executing the intellectually
disabled. In Grell II, we stated that § 13-703.02(K) requires an “overall
assessment of the defendant’s ability to meet society’s expectations of him.
[But] [i]t does not require a finding of [intellectual disability] based solely
on proof of specific deficits or deficits in only two areas.” 212 Ariz. at 529
¶ 62.

¶10           Twelve years after Atkins, the Supreme Court decided Hall v.
Florida, 572 U.S. 701 (2014), and provided additional guidance in
determining whether a defendant is intellectually disabled. It concluded
that Florida’s law foreclosing further exploration of a defendant’s
intellectual disability if his IQ score was higher than 70 created an
unacceptable risk that persons with intellectual disabilities would be
executed. Id. at 723–24. The Supreme Court reversed the trial court’s
determination that Hall was not intellectually disabled. Id. at 724. It noted
that pursuant to Florida’s mandatory IQ cutoff, the sentencing court could
not “consider even substantial and weighty evidence of intellectual
disability as measured and made manifest by the defendant’s failure or
inability to adapt to his social and cultural environment,” some of which
would, in persons with severe adaptive behavior problems, reduce the
person’s actual functioning comparable to that of an individual with a
lower IQ score. Id. at 712. The Hall Court clarified that “Atkins did not give
the States unfettered discretion to define the full scope of the constitutional
protection” and that “[t]he legal determination of intellectual disability is
distinct from a medical diagnosis, but it is informed by the medical
community’s diagnostic framework.” Id. at 719, 721.

¶11            In State v. Escalante-Orozco, 241 Ariz. 254 (2017), we addressed
Hall’s requirement that a legal determination of intellectual disability be
informed by the medical community. We clarified that § 13-753(K)(1),
Arizona’s intellectual disability statute, “differs from a clinical definition,
which bases an impairment in adaptive functioning on deficits in at least
two life-skill categories without considering strengths.” Escalante-Orozco,
241 Ariz. at 267 ¶ 16 (citing State v. Boyston, 231 Ariz. 539, 547 ¶ 34 (2013);
Grell II, 212 Ariz. at 529 ¶ 62), abrogated on other grounds by State v. Escalante,
245 Ariz. 135 (2018). We also concluded that “Arizona’s failure to precisely
align its definition of adaptive behavior with the prevailing medical
definition does not violate the Eighth Amendment” because “the required
‘overall assessment’ permits consideration of deficits in the life-skill
categories identified by medical clinicians.” Id. at 268 ¶ 17 (citations

2      Renumbered as § 13-753 effective January 1, 2009.
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           STATE V. HON. KEMP/APOLINAR ALTAMIRANO
                         Opinion of the Court
omitted). Although Arizona’s statute may differ from a clinical definition
of adaptive behavior, the medical community also recognizes that adaptive
behavior requires a consideration of “how well a person meets community
standards of personal independence and social responsibility, in
comparison to others of similar age and sociocultural background.”
DSM-5, supra ¶ 1 n.1, at 37; see also AAIDD Guide, supra ¶ 1 n.1, at 25
(“[L]imitations in . . . present functioning must be considered within the
context of community environments typical of the individual’s age peers
and culture.”).

¶12            Recently, the Supreme Court decided Moore I and
disapproved the Texas Court of Criminal Appeals’ (“CCA”) reliance on
factors to determine intellectual disability that were not informed by the
medical community. 137 S. Ct. at 1044 (vacating the CCA’s determination
that Moore was not intellectually disabled). Although the CCA relied on
factors set forth in its prior case law in assessing Moore’s claim of
intellectual disability, the Supreme Court found that the CCA’s reliance on
these factors was not “informed by the views of medical experts.” Id.
(quoting Hall, 572 U.S. at 721). It determined that in departing from the
views of the medical community, the CCA’s intellectual disability analysis
“creat[ed] an unacceptable risk that persons with intellectual disability
[would] be executed.” Id. (quoting Hall, 572 U.S. at 704). The Court further
faulted the CCA for “overemphasiz[ing] Moore’s perceived adaptive
strengths” in certain life-skill categories (conceptual, social, and practical)
when the “medical community focuses the adaptive-functioning inquiry on
adaptive deficits.” Id. at 1050.

¶13            Subsequently, in Moore II, the Supreme Court reiterated that
although “Atkins and Hall left to the states the task of developing
appropriate ways to enforce the restriction on executing the intellectually
disabled,” a “court’s intellectual disability determination must be informed
by the medical community’s diagnostic framework.” 139 S. Ct. at 668–71
(internal citations omitted) (internal quotation marks omitted).

¶14          We distill from Moore I and Moore II the principle that,
although the states retain a measure of flexibility in enforcing the ban on
executing the intellectually disabled, the legal determination of intellectual
disability must be informed by the views of the medical community. With
this understanding, we turn to the law in Arizona to determine whether its
procedures for determining intellectual disability comport with existing
federal law.



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           STATE V. HON. KEMP/APOLINAR ALTAMIRANO
                         Opinion of the Court
                          II.    Section 13-753(K)

¶15           To prove “intellectual disability” in Arizona, a defendant
must establish: 1) significantly subaverage intellectual functioning; 2)
significant impairment in adaptive behavior; and 3) onset of these
conditions before the defendant reached the age of eighteen. § 13-753(K)(3).
Courts must determine a defendant’s intellectual disability “using current
community, nationally and culturally accepted physical, developmental,
psychological and intelligence testing procedures, for the purpose of
determining whether the defendant has an intellectual disability.” § 13-
753(E). Arizona law thus incorporates the Supreme Court’s requirement
that an intellectual disability determination be informed by the medical
community’s current standards.

¶16            Section 13-753(K)(1) defines “adaptive behavior” as “the
effectiveness or degree to which the defendant meets the standards of
personal independence and social responsibility expected of the
defendant’s age and cultural group.” As we stated in Grell II, this definition
is “similar in overall meaning” to the clinical definition. 212 Ariz. at 529
¶ 62. The medical community has identified three life-skill categories—
conceptual, social, and practical—and Arizona courts address these
categories in determining if an individual has an impairment in adaptive
behavior. See DSM-5, ¶ 1 n.1, at 37; AAIDD Guide, ¶ 1 n.1, at 1; see also
Escalante-Orozco, 241 Ariz. at 268 ¶ 17 (“And the required ‘overall
assessment’ permits consideration of deficits in the life-skill categories
identified by medical clinicians.” (citing Grell II, 212 Ariz. at 529 ¶ 62)). In
addition to considering the three life-skill categories, Arizona also requires
courts to conduct an “overall assessment of the defendant’s ability to meet
society’s expectations of him.” Grell II, 212 Ariz. at 529 ¶ 62.

¶17            Arizona’s additional requirement of an “overall assessment,”
after the court considers the three life-skill categories, does not exceed the
state’s authority as recognized by the Supreme Court to define intellectual
disability. The Court’s chief concern is that a state will execute an
intellectually disabled person in violation of the Eighth Amendment
because the state’s determination of whether an intellectual disability exists
was not informed by commonly accepted principles from the medical
community. See Moore I, 137 S. Ct. at 1044; Hall, 572 U.S. at 704; Atkins, 536
U.S. at 321. However, Arizona’s framework for determining intellectual
disability relies on those principles, thus Moore I and Moore II do not call
Arizona’s intellectual disability analysis into question.



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           STATE V. HON. KEMP/APOLINAR ALTAMIRANO
                         Opinion of the Court
¶18            Arizona’s statute mitigates the risk of using unsound
methods to determine intellectual disability by requiring experts evaluating
a defendant’s intellectual disability to have at least five years’ experience in
testing, evaluating, and diagnosing intellectual disabilities. § 13-753(K)(2),
(4). And as previously identified, “each expert in intellectual disability shall
examine the defendant using current community, nationally and culturally
accepted physical, developmental, psychological and intelligence testing
procedures, for the purpose of determining whether the defendant has an
intellectual disability.”    § 13-753(E). Accordingly, Arizona’s statute
requires experts to consider current medical standards when evaluating
intellectual disability as Moore I and Moore II mandate.

¶19            To the extent that Arizona’s statutory scheme requiring an
overall assessment departs from the medical community consensus, such
deviation does not render § 13-753(K)(1) constitutionally infirm. Moore I
prohibits courts from “disregard[ing] . . . current medical standards,” 137
S. Ct. at 1049, but that does not require a court to merely defer to whatever
medical diagnosis it deems most credible. The Diagnostic and Statistical
Manual of Mental Disorders itself specifically recognizes the risk of solely
relying on medical diagnostic information for a legal determination of
intellectual disability. It states:

       [T]he use of DSM-5 should be informed by an awareness of
       the risks and limitations of its use in forensic settings. When
       DSM-5 categories, criteria, and textual descriptions are
       employed for forensic purposes, there is a risk that diagnostic
       information will be misused or misunderstood. These
       dangers arise because of the imperfect fit between the
       questions of ultimate concern to the law and the information
       contained in a clinical diagnosis. In most situations, the
       clinical diagnosis of a DSM-5 mental disorder such as
       intellectual disability . . . does not imply that an individual
       with such a condition meets legal criteria for the presence of
       a mental disorder of a specified legal standard. . . . For [a legal
       determination of intellectual disability],              additional
       information is usually required beyond that contained in the
       DSM-5 diagnosis, which might include information about the
       individual’s functional impairments and how these
       impairments affect the particular abilities in question.

DSM-5, supra ¶ 1 n.1, at 25. By requiring an overall assessment, Arizona
law presents a flexible approach for determining intellectual disability
capable of adapting to changes in the medical community. Neither § 13-753

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           STATE V. HON. KEMP/APOLINAR ALTAMIRANO
                         Opinion of the Court
nor our interpretation of the statute conflicts with current medical
standards.

¶20           Accordingly, to assess adaptive behavior for intellectual
disability according to § 13-753(K)(1), our prior caselaw, and Moore I and
Moore II, a court should first conduct an overall assessment by holistically
considering the strengths and weaknesses in each of the life-skill categories
(conceptual, social, and practical), as identified by the medical community,
to determine if there is a deficit in any of these areas. Under this step, the
court cannot offset weaknesses in one category with unrelated strengths
from another category. Moore I, 137 S. Ct. at 1050 n.8. And although Moore
I cautioned against overemphasizing adaptive strengths, a court should
consider both a defendant’s strengths and weaknesses within the life-skill
categories. Id. at 1050; see also DSM-5, supra ¶ 1 n.1, at 25 (cautioning that
there is an “imperfect fit between the questions of ultimate concern to the
law and the information contained in a clinical diagnosis” and stating
“additional information is usually required” for a legal determination of
intellectual disability); AAIDD Guide, supra ¶ 1 n.1, at 1 (“Within an
individual, limitations often coexist with strengths.”). 3 Consideration of
both strengths and weaknesses within each individual category is part of
the necessary overall assessment for an intellectual disability determination
in Arizona.

¶21            If the court does not identify any deficits, the inquiry ends.
However, if there is a deficit, the court should determine whether that
deficit, in light of the individual’s overall assessment of the life-skill
categories, actually affects the defendant’s ability to function with the
“personal independence and social responsibility expected of the
defendant’s age and cultural group.” § 13-753(K)(1). Only then can a court
find a defendant has met the adaptive behavior prong necessary for
proving an intellectual disability.

¶22          Here, the trial court correctly considered Altamirano’s
strengths and weaknesses in the life-skill categories but did not conduct an

3      To the extent the Supreme Court cautions against relying on
behavior while in prison and cites the DSM-5, Moore I, 137 S. Ct. at 1050, we
do not read the DSM-5 as prohibiting reliance on behavior in a controlled
setting, like prison.     Although the AAIDD counsels against the
consideration of behavior while in prison, see AAIDD Guide, supra ¶ 1 n.1,
at 20, the DSM-5 recommends “if possible” a court should consider
“corroborative information reflecting functioning outside of those
settings.” DSM-5, supra ¶ 1 n.1, at 38.
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          STATE V. HON. KEMP/APOLINAR ALTAMIRANO
                        Opinion of the Court
overall assessment of how Altamirano’s deficits affected his ability to meet
the standards of personal independence and social responsibility for a
person his age and cultural background. Id.

                             CONCLUSION

¶23            Supreme Court jurisprudence instructs that states have the
“task of developing appropriate ways to enforce the constitutional
restriction upon [their] execution of sentences” upon the intellectually
disabled. Atkins, 536 U.S. at 317 (quoting Ford, 477 U.S. at 405, 416–17).
Although states have “some flexibility,” Moore I, 137 S. Ct. at 1052, in
enforcing this constitutional restriction, the adjudication of intellectual
disability should be “informed by the views of medical experts,” Hall, 572
U.S. at 721.

¶24           Arizona’s statutory framework for adjudicating intellectual
disability complies with the constitutional requirements announced in
Moore I and Moore II. However, because the trial court did not conduct an
overall assessment of Altamirano’s ability to meet society’s expectations of
him as required by § 13-753(K)(1), we vacate the court of appeals’ decision
order, reverse the trial court, and remand for a new intellectual disability
determination using the standard set forth in this opinion.




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