                                                                      FILED BY CLERK
                             IN THE COURT OF APPEALS                    MAR 31 2011
                                 STATE OF ARIZONA
                                   DIVISION TWO                           COURT OF APPEALS
                                                                            DIVISION TWO

THE STATE OF ARIZONA,                            )
                                                 )   2 CA-SA 2011-0009
                                   Petitioner,   )   DEPARTMENT B
                                                 )
             v.                                  )
                                                 )   OPINION
HON. JOHN S. LEONARDO, Judge of                  )
the Superior Court of the State of Arizona,      )
in and for the County of Pima,                   )
                                                 )
                                Respondent,      )
                                                 )
             and                                 )
                                                 )
MARK DWAYNE GANNON,                              )
                                                 )
                       Real Party in Interest.   )
                                                 )


                          SPECIAL ACTION PROCEEDING

                          Pima County Cause No. CR20102680

                    JURISDICTION ACCEPTED; RELIEF GRANTED


Barbara LaWall, Pima County Attorney
 By Jacob R. Lines                                                              Tucson
                                                                Attorneys for Petitioner

Robert J. Hirsh, Pima County Public Defender
 By Brian X. Metcalf                                                             Tucson
                                                     Attorneys for Real Party in Interest


K E L L Y, Judge.
¶1            In this special action, the State of Arizona seeks relief from the respondent

judge‟s order compelling C.M., whom Mark Gannon had been convicted of molesting, to

submit to an interview by defense counsel in a separate criminal prosecution involving

another victim. The state maintains the respondent judge erred in concluding that C.M.

was no longer a victim within the meaning of the Victim‟s Bill of Rights (VBR) set forth

in the Arizona Constitution. We accept jurisdiction and, because we agree that C.M.

retains her victim‟s rights while Gannon is on probation, grant relief.

                                   Facts and Procedure

¶2            Pursuant to a plea agreement, Gannon pled guilty in CR20074852 to

second-degree molestation of C.M., a child under fifteen years old. The trial court

suspended the imposition of sentence and placed Gannon on probation for a ten-year

period. Gannon was thereafter indicted in CR20102680 on multiple charges of sexual

abuse of, sexual conduct with, and molestation of a child under fifteen years old for acts

committed against a second victim, J.G.

¶3            Intending to call C.M. as a witness to present other-act evidence pursuant to

Rule 404(c), Ariz. R. Evid., in its case against Gannon for his abuse of J.G., the state filed

a “[n]otice of invocation of victim‟s constitutional rights,” asserting C.M.‟s rights under

article II, § 2.1(A) of the Arizona Constitution. In response, Gannon filed a motion to

compel a pre-trial interview of C.M., citing his rights to due process and a fair trial under

the United States and Arizona Constitutions. The trial court granted Gannon‟s motion to

compel C.M. to submit to an interview, concluding C.M.‟s “rights as a victim do not last

a lifetime” and that because CR20074852 had been “resolved upon [Gannon‟s] pleading

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guilty and subsequently being sentenced” and because “CR20074852 has no pending

appeal or other post[-]conviction matter,” C.M.‟s “right to refuse to be interviewed is no

longer in effect.” The state then filed this petition for special action.

¶4            We may accept special action jurisdiction “when there is no other means of

obtaining justice on the issue raised” and here “the state could not wait until after trial to

appeal . . . because the defense interview already would have taken place.” State ex rel.

Romley v. Hutt, 195 Ariz. 256, ¶ 5, 987 P.2d 218, 221 (App. 1999). Additionally,

“A.R.S. § 13-4437(A) and Rule 2(a)(2), Ariz. R. P. Spec. Actions, expressly authorize

victims to enforce their rights under the VBR in special action proceedings.” State v.

Nichols, 224 Ariz. 569, ¶ 2, 233 P.3d 1148, 1149 (App. 2010).

                                          Discussion

¶5            We review de novo the questions of statutory interpretation raised in this

matter. See State v. Cheramie, 218 Ariz. 447, ¶ 8, 189 P.3d 374, 375 (2008). The VBR

provides “a victim of crime” with the right “[t]o refuse an interview, deposition, or other

discovery request by the defendant, the defendant‟s attorney, or other person acting on

behalf of the defendant.” Ariz. Const. art. II, § 2.1(A)(5); see also A.R.S. § 13-4433.

Pursuant to A.R.S. § 13-4402(A), this right, along with the other rights provided to

victims under the VBR, “continue[s] to be enforceable . . . until the final disposition of

the charges [against the defendant], including acquittal or dismissal of the charges, all

post-conviction release and relief proceedings and the discharge of all criminal

proceedings relating to restitution.” The “[f]inal disposition” of the charges is defined as



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“the ultimate termination of the criminal prosecution of a defendant by a trial court,

including dismissal, acquittal or imposition of a sentence.” A.R.S. § 13-4401(10).

¶6            The state argues that, by that definition, the proceedings against Gannon in

CR20074852 have not yet reached a final disposition because he was placed on probation

and that probation is ongoing.      According to the state, because probation is not a

sentence, see Coy v. Fields, 200 Ariz. 442, n.2, 27 P.3d 799, 801 n.2 (App. 2001), the

case in which C.M. was a victim will not reach its final disposition so long as Gannon

remains on probation. The state contends, therefore, that a “plain reading of the statutes”

demonstrates that C.M. maintains her victim‟s rights. In contrast, Gannon points out that

the language of the statutes “includes some types of final dispositions but does not

expressly exclude others.” He maintains that because he was convicted pursuant to a plea

agreement and the time for a proceeding for relief from that conviction pursuant to Rule

32, Ariz. R. Crim. P., has passed, “his conviction is final.” In light of these competing

views of the finality of a criminal proceeding in the context of a victim‟s rights, we must

determine whether a criminal proceeding has reached its final disposition when a trial

court suspends imposition of sentence and places the defendant on probation. To do so,

we must interpret the meaning of “final disposition” set forth in § 13-4401(10).1

¶7            “„Our primary goal in interpreting statutes is to discern and give effect to

legislative intent.‟ We first consider the language of the statute and, if it is unclear, turn


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        In his response to the state‟s petition, Gannon suggests the rule of lenity should
apply here. But, the legislature has specifically instructed us to construe the statutes at
issue “liberally . . . to preserve and protect the rights to which victims are entitled.”
A.R.S. § 13-4418.
                                              4
to other factors, including „the statute‟s context, subject matter, historical background,

effects, consequences, spirit, and purpose.‟” Norgord v. State ex rel. Berning, 201 Ariz.

228, ¶ 7, 33 P.3d 1166, 1168 (App. 2001), quoting Hobson v. Mid-Century Ins. Co., 199

Ariz. 525, ¶ 8, 19 P.3d 1241, 1245 (App. 2001). As an initial matter, we reject the state‟s

contention that the language of §§ 13-4401(10) and 13-4402(A) is clear and that a “plain

reading” of those statutes is determinative here. We therefore turn to other methods of

statutory interpretation to determine whether the legislature intended a victim to retain his

or her rights under the VBR after a defendant is placed on probation.

¶8            In interpreting a statute, we must construe it together with other statutes

relating to the same subject matter. State v. Sweet, 143 Ariz. 266, 270-71, 693 P.2d 921,

925-26 (1985). In this case, other statutes relating to the nature of probation and a

victim‟s rights relating to a defendant‟s probationary status are instructive. Section 13-

901(A), A.R.S., provides that if a person is eligible for probation, “the court may suspend

the imposition or execution of sentence” and place the person on probation. Thus, as this

court has pointed out, “[t]he imposition of probation is technically not a „sentence‟ but a

feature of the suspension of imposition of a sentence.” Coy, 200 Ariz. 442, n.2, 27 P.3d

at 801 n.2. Accordingly, a defendant convicted and placed on probation has not had his

or her charges dismissed, has not been acquitted, and has not had sentence imposed, and

arguably has not, therefore, reached final disposition under § 13-4401(10).

¶9            As Gannon points out, however, the language of § 13-4401(10) is not

exclusive, but rather states that a “final disposition” is a conclusion of a criminal

prosecution, “including dismissal, acquittal or imposition of a sentence.” § 13-4401(10)

                                             5
(emphasis added). The use of the word “including” denotes the list is illustrative and not

exclusive. Prince & Princess Enters., LLC v. State ex rel. Ariz. Dep’t of Health Servs.,

221 Ariz. 5, ¶ 13, 209 P.3d 141, 144 (App. 2008), citing State v. Roque, 213 Ariz. 193,

¶ 31, 141 P.3d 368, 382 (2006) (“Typically, the word „including‟ is „not one of all-

embracing definition, but connotes simply an illustrative application of the general

principle.‟”). Thus, the fact that placement on probation is not set forth in the examples

in the statute does not itself establish that the legislature intended to exclude it as a final

disposition for purposes of victim‟s rights.

¶10           A broader review of the statutes enacted pursuant to the VBR, however,

does establish such intent. In A.R.S. § 13-4427, the legislature specifically provided a

victim with, inter alia, “the right to be present and be heard at any probation revocation

disposition proceeding” or “any proceeding in which the court is requested to modify the

terms of probation . . . if the modification will substantially affect the person‟s contact

with or safety of the victim or if the modification involves restitution or incarceration

status.” Likewise, A.R.S. § 13-4411 requires the prosecutor‟s office to provide a victim

with a form “to request post-conviction notice of . . . all probation modification

proceedings that impact the victim [and] all probation revocation or termination

proceedings.” And, A.R.S. § 13-4415 requires the court itself to notify the victim about

various proceedings related to a defendant‟s probation and the terms thereof.

¶11           These related statutes establish the legislature‟s intent that a victim retain

his or her rights during a defendant‟s term of probation. If, as Gannon argues, a victim‟s

rights are no longer enforceable after the defendant is placed on probation, he or she

                                               6
could not exercise the right to notice of changes to the defendant‟s terms of probation or

probationary status. And Gannon has cited nothing to suggest those rights somehow are

severable from the trial-related rights set forth in the same victim rights statutes. Thus,

C.M.‟s rights as a victim remain enforceable while Gannon is on probation for his crime

against her and she therefore is entitled to refuse an interview sought by Gannon in a

different cause number.

                                       Disposition

¶12           For the foregoing reasons, we accept special action jurisdiction and grant

relief. We vacate the trial court‟s order compelling C.M. to submit to a pretrial interview.




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


CONCURRING:

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


/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge




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