                                                                    FILED BY CLERK
                                                                       SEP 23 2013
                                                                        COURT OF APPEALS
                          IN THE COURT OF APPEALS                         DIVISION TWO

                              STATE OF ARIZONA
                                DIVISION TWO



THE STATE OF ARIZONA,                         )      2 CA-CR 2013-0233-PR
                                              )      DEPARTMENT B
                              Respondent,     )
                                              )      OPINION
             v.                               )
                                              )
RAYMOND JOHN,                                 )
                                              )
                                Petitioner.   )
                                              )


PETITION FOR REVIEW FROM THE SUPERIOR COURT OF COCONINO COUNTY

                              Cause No. CR201000425

                          Honorable Joseph J. Lodge, Judge

                     REVIEW GRANTED; RELIEF GRANTED


David Rozema, Coconino County Attorney
 By Serena Serassio                                                          Flagstaff
                                                             Attorneys for Respondent

H. Allen Gerhardt, Coconino County Public Defender
 By H. Allen Gerhardt                                                         Flagstaff
                                                               Attorneys for Petitioner


E S P I N O S A, Judge.
¶1            Raymond John petitions this court for review of the trial court’s order

denying his of-right petition for post-conviction relief filed pursuant to Rule 32, Ariz. R.

Crim. P. He argues the court erred in concluding the state had jurisdiction to prosecute

him for failing to register as a sex offender because he is a member of the Navajo Nation

residing on tribal land. We will not disturb the court’s ruling unless it clearly has abused

its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007).

An error of law can constitute such an abuse. State v. Rubiano, 214 Ariz. 184, ¶ 5, 150

P.3d 271, 272 (App. 2007). Because the state could not impose on John a duty to register

while he was residing on the Navajo reservation, we grant relief and remand the case to

the trial court for further proceedings.

                                           Background

¶2            In 1988 or 1989, John was convicted in federal court of two counts of

sexual assault occurring within the reservation. In 2010, he was arrested by the Coconino

County Sheriff outside the Navajo Nation boundaries and charged with failure to register

as a sex offender pursuant to A.R.S. § 13-3821.          He pled guilty to that offense,

acknowledging at the plea colloquy that he had lived in Tuba City since 2008 but had not

registered with the county sheriff within ten days of moving there.1 The trial court
suspended the imposition of sentence and placed John on a ten-year term of probation.

He immediately sought post-conviction relief, arguing the state lacked subject-matter

jurisdiction to charge him with failure to register as a sex offender because he is a



       1
       Tuba City and its surrounding area are within the territory of the Navajo Nation
and within Coconino County. See State v. Phillips, 102 Ariz. 377, 380, 430 P.2d 139,
142 (1967) (court may take judicial notice of geographic facts).
                                               2
member of the Navajo Nation living on tribal lands, and has not worked, resided, or

attended school outside the reservation boundaries.2 The court summarily denied relief.

                                        Discussion

¶3            John’s argument on review, like his argument below, is grounded in the

federal government’s plenary and exclusive power over Indian affairs; he asserts the

federal Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. §§ 16901–

16962, does not confer jurisdiction on the State of Arizona to enforce state registration

requirements on tribal lands. We therefore begin our discussion with a brief outline of

that act as it pertains here. First, under SORNA, a sex offender must “register, and keep

the registration current, in each jurisdiction where the offender resides, where the

offender is an employee, and where the offender is a student.” 42 U.S.C. § 16913(a).

The failure to do so is a federal crime. 18 U.S.C. § 2250. SORNA further requires

“[e]ach jurisdiction, other than a Federally recognized Indian tribe” to “provide a

criminal penalty that includes a maximum term of imprisonment that is greater than 1

year for the failure of a sex offender to comply with” the registration requirement. 42

U.S.C § 16913(e).

¶4            The term “jurisdiction,” as used in SORNA, includes a state as well as “a
federally recognized Indian tribe,” like the Navajo Nation, “[t]o the extent provided and

subject to the requirements of” 42 U.S.C. § 16927. 42 U.S.C. § 16911(10)(A), (H); see

also United States v. Begay, 622 F.3d 1187, 1194 (9th Cir. 2010) (Navajo Nation is

“jurisdiction” under SORNA). SORNA generally requires each jurisdiction to maintain a

       2
        Before pleading guilty, John raised an essentially identical argument in a motion
to dismiss, which the trial court denied, and in a petition for special action filed in this
court, over which we declined to accept jurisdiction.
                                             3
sex offender registry in accordance with its provisions and federally issued guidelines.

42 U.S.C. § 16912. Pursuant to 42 U.S.C. § 16927(a)(1), an Indian tribe may elect to

implement a registration system or to delegate its functions “to another jurisdiction or

jurisdictions within which the territory of the tribe is located and to provide access to its

territory and such other cooperation and assistance as may be needed to enable such other

jurisdiction or jurisdictions to carry out and enforce the requirements of this part.” “A

tribe shall be treated as if it had” delegated its functions if, relevant here, the tribe makes

no election “within 1 year of July 27, 2006 or rescinds an election” or “the Attorney

General determines that the tribe has not substantially implemented the requirements of

this part and is not likely to become capable of doing so within a reasonable amount of

time.” 42 U.S.C. § 16927(a)(2). It is undisputed that, at the time of John’s alleged

offense, although the Navajo Nation had timely elected to implement a SORNA-

compliant sex offender registration system, it had not yet done so. See Begay, 622 F.3d

at 1191-92. Nothing in the record presented, however, suggests that the Attorney General

made a finding under 42 U.S.C. § 16927(a)(2)(C).3

¶5            A necessary backdrop to the remainder of our analysis is the unique legal

position occupied by Indian tribes. They “retain ‘attributes of sovereignty over both their
members and their territory,’” although there are circumstances under which state law

       3
        It appearing the Navajo Nation has not implicitly delegated to Arizona any of its
obligations under SORNA, we need not resolve whether Arizona’s not having
implemented SORNA affects any authority that could arise under 42 U.S.C.
§ 16927(a)(2). See Press Release, United States Dep’t of Justice, Pa., U.S. V.I. Latest of
55 Jurisdictions to Substantially Implement Provisions of the Adam Walsh Act (Sept. 27,
2012), available at http://www.ojp.usdoj.gov/newsroom/pressreleases/2012/ojppr092712.
pdf.


                                              4
can apply to tribal territory and members. White Mountain Apache Tribe v. Bracker, 448

U.S. 136, 142 (1980), quoting United States v. Mazurie, 419 U.S. 544, 557 (1975). A

state’s attempt to exercise authority over tribal lands or members may be preempted by

federal law, or it may be prohibited because it “unlawfully infringe[s] ‘on the right of

reservation Indians to make their own laws and be ruled by them.’” Id., quoting Williams

v. Lee, 358 U.S. 217, 220 (1959). And “[a] state ‘presumptively lacks jurisdiction to

enforce’ its regulations in Indian country.” Mich. Gambling Opposition v. Kempthorne,

525 F.3d 23, 39 (D.C. Cir. 2008), quoting Narragansett Indian Tribe v. Narragansett

Elec. Co., 89 F.3d 908, 915 (1st Cir. 1996).

¶6            “State jurisdiction is preempted by the operation of federal law if it

interferes or is incompatible with federal and tribal interests reflected in federal law,

unless the State interests at stake are sufficient to justify the assertion of State authority.”

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334 (1983).                  That analysis

necessarily must consider the “traditional notions of Indian sovereignty” as well as the

tribes’ and federal government’s “goal of promoting tribal self-government.” Id. at 334-

35. It is without question that the state has a strong interest in the registration and

monitoring of convicted sex offenders. That interest is furthered by application of state
registration laws to tribal members residing in tribal lands within the state.

¶7            It is equally apparent, however, that the general application of state

registration laws in these circumstances is inconsistent with SORNA, which

unambiguously dictates the circumstances under which the state may impose registration

requirements upon tribal members on tribal land. That is, the state may only do so if the

tribe has failed to elect to implement its own registration system, if the tribe has expressly

delegated that authority to the state, or if the Attorney General has found that a tribe that
                                               5
has elected to implement its own system has nonetheless failed to do so and “is not likely

to become capable of doing so within a reasonable amount of time.”             42 U.S.C.

§ 16927(a)(2). And the state’s interest is significantly mitigated here because a tribal

member on tribal land convicted of a sex offense was, at the time of John’s alleged

offense, nonetheless required by federal law to register as a sex offender. See Begay, 622

F.3d at 1199.

¶8              The state asserts, however, that it acquired “personal jurisdiction” over

John “the moment that he step[ped] off the reservation and retained subject matter

jurisdiction over [him] from the moment he moved back into the county and failed to

register within 10 days.” We disagree with the latter contention. John’s conviction is

based entirely on conduct occurring within the Navajo Nation’s territory—his residency

there—and, in light of SORNA’s preemption of state law requiring registration by tribal

members residing on tribal lands, the state could not impose a duty on John to register

based on his residence in tribal territory.4 See State v. Atcitty, 215 P.3d 90, 91-92 & 98

(N.M. Ct. App. 2009) (although defendants arrested outside reservation, because “the

State’s regulatory authority does not reach into Indian country to impose a duty [to

register as a sex offender], failure to comply with the duty cannot be a crime”).
Moreover, the state sex offender registration system is a regulatory scheme and

presumptively does not apply to tribal members on tribal land. See State v. Noble, 171



      4
         We recognize that, as a general matter, a tribal member on tribal land is still a
resident of the state and within the state’s territorial borders. See State v. Zaman, 194
Ariz. 442, ¶ 13, 984 P.2d 528, 530 (1999). But that fact does not affect our determination
that SORNA has preempted the exercise of state law to impose a duty to register based on
a tribal member’s residence on tribal land.
                                             6
Ariz. 171, 178, 829 P.2d 1217, 1224 (1992) (“Arizona’s sex offender registration

statute . . . is regulatory in nature”); Mich. Gambling Opposition, 525 F.3d at 39.

¶9            Nor do we agree with the state that Begay supports a different conclusion.

In that case, the Ninth Circuit Court of Appeals determined that Navajo Nation members

living in tribal territory were required to register in Arizona and that their failure to do so

would violate 18 U.S.C. § 2250. 622 F.3d 1187. But nothing in that decision suggests

those members were required by state law to register or would be subject to prosecution

under state law for failing to do so.

                                         Disposition

¶10           For the foregoing reasons, we conclude that, absent an effective election by

the tribe or a finding by the Attorney General pursuant to 42 U.S.C. § 16927, a tribal

member residing on tribal land in Arizona cannot be prosecuted under state law for

failing to register as a sex offender.5 We therefore grant review and relief, and remand

the case to the trial court for further proceedings consistent with this decision. Such

proceedings may include an evidentiary hearing for John to demonstrate he is a member

       5
        John pled guilty to the offense and thus has generally waived all non-
jurisdictional defects. See State v. Flores, 218 Ariz. 407, ¶ 6, 188 P.3d 706, 708-09 (App.
2008). However, although he couches his argument in terms of subject matter
jurisdiction, we need not determine whether the issue here involves the state’s
jurisdiction to prosecute him for failing to register. See State v. Verdugo, 183 Ariz. 135,
137, 901 P.2d 1165, 1167 (1995) (“In Arizona, the general rule is that the state has
subject matter jurisdiction to prosecute crimes committed within its territorial borders.”);
but see Atcitty, 215 P.3d at 98 (federal law does not generally permit state to assert
“jurisdiction in Indian country” and enforce state sex-offender registration requirements).
Irrespective of the jurisdictional question, the factual basis for John’s guilty plea does not
describe a criminal offense because the state could not impose on him a duty to register.
Like a jurisdictional defect, that flaw also affords John post-conviction relief. See State
v. Johnson, 181 Ariz. 346, 348, 890 P.2d 641, 643 (App. 1995) (addressing factual basis
of plea in post-conviction proceeding).
                                              7
of the Navajo Nation and for the state to show that the Attorney General has made the

requisite finding, if that is the case.


                                          /s/ Philip G. Espinosa
                                          PHILIP G. ESPINOSA, Judge

CONCURRING:

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


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




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