                 IN THE SUPREME COURT OF THE STATE OF ARIZONA
                                    En Banc


THE STATE OF ARIZONA,                     )                 Supreme Court
                                          )                 No. CR-01-0329-PR
                              Respondent, )
                                          )                 Court of Appeals
      v.                                  )                 Division Two
                                          )                 No. 2 CA-CR 01-0002 PRPC
MARK ANDREW RYAN,                         )
                                          )                 Pima County Superior Court
                              Petitioner. )                 No. CR-60430
__________________________________________)
                                                            MEMORANDUM DECISION
                                                            (Not for publication; Rule 111,
                                                             Arizona Rules of the Supreme Court)




                  Petition for Review from the Superior Court in Pima County
                            The Honorable Richard D. Nichols, Judge
                             REMANDED WITH INSTRUCTIONS


                        Memorandum Decision of the Court of Appeals
                            Division Two, filed June 14, 2001
                                      VACATED




Janet A. Napolitano, Arizona Attorney General                                            Phoenix
       By:     Randall M. Howe, Chief Counsel
                 Criminal Appeals Section
               Eric J. Olsson, Assistant Attorney General                                Tucson
Attorneys for State of Arizona

Susan A. Kettlewell, Pima County Public Defender                                         Tucson
       By:    Harold L. Higgins, Jr.
Attorneys for Mark Andrew Ryan

Lisa Daniel Flores                                                                       Phoenix
Attorney for Honorable Jane D. Hull, Amicus Curiae
FELDMAN, Justice

¶1              A jury found Mark Andrew Ryan (Defendant) guilty of negligent homicide, and the

trial judge sentenced him in March 1999 to a mitigated 4-year prison term. In the sentencing order,

the judge included a special order allowing Defendant to petition the Board of Executive Clemency

(Board) for commutation pursuant to A.R.S. § 13-603(L) because he believed the sentence was too

harsh. Defendant petitioned the Board, and in late 1999, the Board unanimously recommended to

the Governor that Defendant’s sentence be reduced to 1.5 years. The Governor denied the commutation

recommendation on February 8, 2000.

¶2              Defendant subsequently filed a petition for post-conviction relief pursuant to Rule 32,

Ariz.R.Crim.P. He argued that the although the Governor signed the denial, she failed to have it attested

by the Secretary of State until October 12, 2000. Defendant’s 1.5-year reduced sentence would have

expired at the latest in September 2000. The trial judge denied relief, and the court of appeals granted

review but denied relief by memorandum decision. State v. Ryan, No. 2 CA-CR 01-0002 PRPC (filed

June 14, 2001) (mem. dec.).

¶3              On review of McDonald v. Thomas, we held that denial of a unanimous Board

recommendation was valid only if the Governor signed such denial and had it attested by the Secretary

of State. 202 Ariz. 35, 46 ¶ 35, 40 P.3d 819, 830 ¶ 35 (2002). McDonald was decided pursuant to

the provisions of the Disproportionality Review Act. This case, on the other hand, falls under A.R.S.

§ 31-402(D), which contains the identical requirement that “[a]ny recommendation for commutation

that is made unanimously . . . and that is not acted on by the governor within ninety days after the board

submits its recommendation . . . automatically becomes effective.” Because the denial was not attested

by the Secretary of State until some eight months after the Governor signed it, the denial is not valid.

McDonald, 202 Ariz. at 46 ¶ 35, 40 P.3d at 830 ¶ 35.


                                                    2
¶4             We therefore vacate the court of appeals’ memorandum decision and remand this matter

to the trial court with instructions to grant post-conviction relief consistent with this decision.



                                                       ____________________________________
                                                       STANLEY G. FELDMAN, Justice


CONCURRING:


__________________________________________
CHARLES E. JONES, Chief Justice


__________________________________________
RUTH V. McGREGOR, Vice Chief Justice


__________________________________________
REBECCA WHITE BERCH, Justice




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