author: BROWN, Judge:

text:
    STATE of Arizona, Petitioner, v. The Honorable Thomas KAIPIO, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Commissioner,
    Carlos Espinoza-Sanudo, Real Party in Interest.
    No. 1 CA-SA 18-0140
    Court of Appeals of Arizona, Division 1.
    FILED January 22, 2019
    Maricopa County Attorney's Office, Phoenix, By E. Catherine Leisch, Counsel for Petitioner
    Maricopa County Public Defender's Office, Phoenix, By William H. Atkins, III, Counsel for Real Party in Interest
    Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge James P. Beene and Judge Jennifer M. Perkins joined.
   BROWN, Judge:

¶1 The State challenges the denial of its request that Carlos Espinoza-Sañudo ("Defendant") be held without bond because his presence was secured through issuance of a writ of habeas corpus ad prosequendum ("Writ"), which granted the State temporary physical custody of Defendant to allow prosecution of his pending criminal charges. For the following reasons, we hold that the respondent commissioner erred in allowing Defendant to post a bond because releasing him from custody conflicted with the express terms of the Writ.

BACKGROUND

¶2 The State arrested Defendant and charged him with three counts of sale or transportation of narcotic drugs and one count of possession of narcotic drugs for sale, all class 2 felonies, after he sold drugs to an undercover detective. Defendant was released after posting a $2,500 bond, but the United States Immigration and Customs Enforcement ("ICE") took him into custody and detained him for removal proceedings.

¶3 When Defendant failed to appear at a status conference for his pending criminal charges, the superior court issued a bench warrant. The State then petitioned for the Writ, requesting permission from ICE to transfer physical custody of the Defendant to the county sheriff until final adjudication of the pending criminal charges. The superior court's criminal presiding judge issued the Writ, which directed the Eloy Detention Center Warden or the Maricopa County Sheriff to bring Defendant to the superior court, "keep [him] in custody and available for all court proceedings until final judicial disposition is completed," and then "return [him] to the prison from which custody was obtained ... within a reasonable time."

¶4 ICE honored the Writ and the State took physical custody of Defendant. Despite the terms of the Writ, the commissioner set release conditions, including an $1,800 bond. The State filed a motion requesting Defendant be held without bond because he would be immediately deported by ICE if released, depriving the State of its opportunity to prosecute him. The State also contended Defendant was merely "on loan" from the federal government and thus "not eligible for bail or any release conditions." The commissioner denied the motion, and the State challenged the decision by filing its petition for special action in this court. In response, Defendant argued in part that the issue was moot because he had accepted a plea offer and was sentenced to a prison term.

¶5 Acknowledging mootness, we determined exercising special action jurisdiction was appropriate because the petition raises an important issue, affects the public interest, and is capable of repetition yet evading review. See State v. Valenzuela , 144 Ariz. 43, 44, 695 P.2d 732, 733 (1985) (noting the discretion of appellate courts to decide issues that have become moot but pose significant issues that are likely to recur); see also Velazquez v. Myers , 1 CA-SA 17-0298, 2018 WL 326515, at *2, ¶ 8 (Ariz. Ct. App. Jan. 9, 2018) (mem. decision) (addressing whether the superior court was permitted to release a defendant on his own recognizance when he remained in federal custody and "on loan" to the State pursuant to a writ). We issued an order accepting jurisdiction and granting relief, indicating a written decision would follow. We now explain our reasoning for the order.

DISCUSSION

¶6 The State argues the commissioner acted in excess of his legal authority by denying its request to hold Defendant without bond, contending he was required to be held in custody until adjudication was complete because his presence was obtained from ICE pursuant to the Writ. See Ariz. R.P. Spec. Act. 3(b) (listing the questions that may be raised in a special action, including "[w]hether the defendant has proceeded or is threatening to proceed without or in excess of jurisdiction or legal authority"). Defendant counters that the commissioner acted properly because the State failed to establish proof supporting either of the two methods by which a court may properly deny bail under Arizona law. See Simpson v. Miller , 241 Ariz. 341, 348, ¶¶ 23-26, 387 P.3d 1270, 1277-78 (2017) (explaining a superior court may deny bail (1) based on an individualized determination of a defendant's dangerousness, or (2) where the proof is evident or presumption great that defendant committed a crime presenting an "inherent risk of future dangerousness").

¶7 The constitutional framework of the United States allocates sovereignty between federal and state governments. See, e.g. , Murphy v. NCAA , --- U.S. ----, 138 S.Ct. 1461, 1475-77, 200 L.Ed.2d 854 (2018). Defendant correctly notes the limited circumstances in which the superior court may deny bail, but this case turns on the legal significance of the Writ, which stems from a longstanding practice permitting both sovereigns "to enforce and vindicate" their respective charges against a defendant. Lunsford v. Hudspeth , 126 F.2d 653, 655 (10th Cir. 1942).

¶8 Each sovereign has "its own system of courts to declare and enforce its laws," and it is imperative that each system remains "effective and unhindered in its vindication of its laws." Ponzi v. Fessenden , 258 U.S. 254, 259, 42 S.Ct. 309, 66 L.Ed. 607 (1922). For this reason, it is well-established that "the first sovereign to arrest a defendant has priority of jurisdiction for trial, sentencing, and incarceration," Thomas v. Brewer , 923 F.2d 1361, 1365 (9th Cir. 1991), and "must be permitted to exhaust its remedy ... before the other [sovereign] shall attempt to take [the defendant] for its purpose," Ponzi , 258 U.S. at 260, 42 S.Ct. 309.

¶9 The first sovereign will lose its priority if (1) it dismisses the charges, (2) it grants bail or parole, or (3) the defendant's sentence expires. See Johnson v. Gill , 883 F.3d 756, 765 (9th Cir. 2018). Priority is not relinquished, however, through consent to a defendant's temporary transfer via a writ of habeas corpus ad prosequendum , see Ponzi , 258 U.S. at 261, 42 S.Ct. 309, which is a "common law writ ... issue[d] when it is necessary to remove a prisoner in order to prosecute in the proper jurisdiction where the crime was committed," State v. Heisler , 95 Ariz. 353, 354, 390 P.2d 846 (1964). Essentially, the Writ is "the equivalent of a request for temporary [physical] custody." State v. Seay , 232 Ariz. 146, 148, ¶ 7, 302 P.3d 671, 673 (App. 2013) (quoting State v. Loera , 165 Ariz. 543, 545-46, 799 P.2d 884, 886-87 (App. 1990) ); see also 28 C.F.R. § 527.30 ("The Bureau of Prisons will consider a request ... that an inmate be transferred to the physical custody of state ... agents pursuant to a writ of habeas corpus ad prosequendum....").

¶10 Here, the State obtained priority jurisdiction over Defendant when it arrested him for selling drugs. See Brewer , 923 F.2d at 1365. However, the State relinquished its priority by, consistent with Arizona law governing the right to bail, permitting Defendant to post a bond for his release. See Gill , 883 F.3d at 765. ICE then took Defendant into custody, and it acquired priority jurisdiction. In order to continue its prosecution against Defendant, the State petitioned for the Writ, which the superior court granted.

¶11 The terms of the Writ presented to ICE were clear-Defendant would remain in State custody until a final adjudication of his pending charges in superior court and then be returned to the Eloy Detention Center. Stated differently, ICE did not relinquish its priority jurisdiction; it merely agreed to loan physical custody of Defendant to the State. See Brewer , 923 F.2d at 1367 (noting that an accused "transferred pursuant to a writ ad prosequendum " is considered to be "on loan" to the federal authorities such that "jurisdiction over the accused continues uninterruptedly." (quoting Crawford v. Jackson , 589 F.2d 693, 695 (D.C. Cir. 1978) ); e.g. , Thomas v. Whalen , 962 F.2d 358, 361 n.3 (4th Cir. 1992) (same); Causey v. Civiletti , 621 F.2d 691, 693 (5th Cir. 1980) (same).

¶12 Implicit in this arrangement was ICE's understanding that the State would adhere to the Writ's conditions as a "practice [of] comity which the harmonious and effective operation of both systems of courts requires." Ponzi , 258 U.S. at 263, 42 S.Ct. 309 ; see also Fremont Indem. Co. v. Indus. Comm'n , 144 Ariz. 339, 345, 697 P.2d 1089, 1095 (1985) ("Comity is ... giv[ing] effect to the laws and judicial decisions of another ... jurisdiction, not as a matter of obligation, but out of deference and mutual respect." (internal quotation and citation omitted) ). We also presume that ICE's decision to honor the Writ was made pursuant to, or at least consistent with, federal regulations governing state-issued writs ad prosequendum . Those provisions give a federal institution's warden the authority to allow, pursuant to such a writ, the transfer of a "state [or] federal inmate serving sentences in federal institutions" only if there are no substantial concerns regarding whether "the inmate's appearance is necessary, ... state and local arrangements are satisfactory, ... and ... federal interests, which include those of the public, will not be interfered with, or harmed." 28 C.F.R. § 527.31(a) - (b). If the writ raises substantial concerns regarding these matters, the warden may decline authorization of the transfer. Id.

¶13 Granted, this regulatory scheme appears to cover only those cases where a defendant is already serving a prison sentence. But we see nothing in that scheme precluding a federal warden from relying on the criteria outlined in 28 C.F.R. § 527.31(a) - (b) to determine whether to transport a pretrial detainee under a writ ad prosequendum . Moreover, the regulations are consistent with the common law notion that writs are a function of comity. Adherence to a writ's terms, regardless of whether the defendant has been convicted and sentenced, promotes comity between the two sovereigns; the practice of sharing custody of defendants would be substantially undermined if a court without priority could issue a ruling that conflicts with the writ. Such non-compliance would, among other things, likely create a "substantial concern" regarding federal interests and may deter future writs from being honored, which could ultimately deprive the State of its opportunity to prosecute individuals in federal custody.

¶14 Given the State's interest in vindicating and enforcing the laws of Arizona, comity mandates a finding that once the Writ was issued and transfer of Defendant was authorized, the commissioner had no discretion to release him from custody. Cf. Taylor v. Reno , 164 F.3d 440, 445 (9th Cir. 1998) ("Because the state retained primary jurisdiction, the district court did not have the authority to place [Defendant] into federal custody for the purpose of commencing his federal sentence."). We therefore reject Defendant's implicit assertion that the commissioner was obligated to apply Simpson in determining whether Defendant could be held without bond. Simpson , 241 Ariz. at 348, ¶¶ 23-26, 387 P.3d at 1278. The parameters of Defendant's State-custody arrangement were defined by the specific terms of the Writ and the release conditions, if any, imposed as part of his removal proceedings. Cf. Roche v. Sizer , 675 F.2d 507, 510 (2d Cir. 1982) (explaining that although the sovereign with priority jurisdiction relinquished it by allowing the defendant to post bond, he was not eligible for release because priority jurisdiction passed to the state, which had not granted him bail or release terms).

CONCLUSION

¶15 The commissioner acted in excess of his legal authority in denying the State's motion to hold Defendant without bond. We therefore accept jurisdiction and grant relief.


source: Caselaw Access Project

author: THUMMA, Chief Judge:

license: Public Domain

text:
    STATE of Arizona, Appellee, v. Richard Allen REED, Appellant.
    No. 1 CA-CR 17-0620
    Court of Appeals of Arizona, Division 1.
    FILED January 22, 2019
    Arizona Attorney General's Office, Phoenix, By Elizabeth B. N. Garcia, Counsel for Appellee
    Maricopa County Public Defender's Office, Phoenix, By Nicholaus Podsiadlik, Counsel for Appellant
    Chief Judge Samuel A. Thumma delivered the Opinion of the Court, in which Presiding Judge James P. Beene and Judge James B. Morse Jr. joined.
   THUMMA, Chief Judge:

¶1 Defendant Richard Allen Reed died while this appeal of a criminal restitution order entered against him was pending. The State then sought dismissal of his appeal pursuant to Arizona Revised Statutes (A.R.S.) section 13-106(A) (2018), which states that "[o]n a convicted defendant's death, the court shall dismiss any pending appeal." Because that statute is constitutional as applied, this appeal is dismissed.

FACTS AND PROCEDURAL HISTORY

¶2 The State charged Reed with voyeurism, a Class 5 felony, committed in January 2015. The victim hired an attorney to assist her during the criminal proceedings. The jury found Reed guilty; he was placed on probation and this court affirmed in a prior appeal. See State v. Reed , 1 CA-CR 16-0269, 2017 WL 1325647 (Ariz. App. Apr. 11, 2017) (mem. dec.).

¶3 Meanwhile, the State filed a motion requesting restitution, including the victim's attorneys' fees. After an evidentiary hearing, the superior court awarded the victim attorneys' fees and granted in part and denied in part other requested restitution. Reed timely filed this second appeal challenging that restitution order. See State v. French , 166 Ariz. 247, 248 n.3, 801 P.2d 482, 483 n.3 (App. 1990) (noting an "order of restitution is a separately appealable order").

¶4 When Reed died while this appeal was pending, the State sought dismissal pursuant to A.R.S. § 13-106(A). Reed's counsel objected, claiming the statute was unconstitutional. The court allowed Reed's counsel, the State and others to file briefs on the constitutionality of Section 13-106 and the availability of any other forum to challenge a restitution order.

DISCUSSION

I. A.R.S. § 13-106.

¶ 5 Enacted effective July 24, 2014, A.R.S. § 13-106 states:

A. On a convicted defendant's death, the court shall dismiss any pending appeal or postconviction proceeding.
B. A convicted defendant's death does not abate the defendant's criminal conviction or sentence of imprisonment or any restitution, fine or assessment imposed by the sentencing court.

A legislative fact sheet states the statute was a response to: (1) State v. Griffin , 121 Ariz. 538, 592 P.2d 372 (1979) (noting Arizona's common law abatement rule means a defendant's death "pending appellate review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception") and (2) State v. Glassel , 233 Ariz. 353, 312 P.3d 1119 (2013) (holding abatement does not apply to post-conviction relief proceedings after an appeal). See Ariz. Senate Fact Sheet, H.B. 2593, 51st Leg., 2d Reg. Sess. (Ariz. 2014). A brief history of the rule of abatement provides helpful background for this appeal.

II. The Rule Of Abatement.

¶6 The rule of abatement, sometimes called "abatement ab initio ," is based on the common law principle that "all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender." United States v. Daniel , 47 U.S. (6 How.) 11, 14, 12 L.Ed. 323 (1848). The concept has ancient roots, as evidenced by a British statute enacted in 1330 providing an exception to abatement. Torts. Right of Privacy. Survival of Action , 46 Colum. L. Rev. 315, 315 n.6 (1946) (citing authority). The "unanimous" approach in federal court is that "death pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception." Durham v. United States , 401 U.S. 481, 482-83, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971). Federal courts have held that, "[i]f the sentence included a fine, this rule of abatement ab initio prevents recovery against the estate." United States v. Oberlin , 718 F.2d 894, 895 (9th Cir. 1983). As conceded in Durham , however, United States Supreme Court cases applying abatement "are not free of ambiguity." 401 U.S. at 482, 91 S.Ct. 858.

¶7 Four Arizona state court opinions have addressed abatement in criminal matters. The first, decided in 1976, dismissed an appeal when the defendant died, noting "[t]he generally conceded grounds for mootness are that in the event the judgment of conviction is affirmed, it is impossible of execution, and if the judgment is reversed, the accused is unavailable for a new trial." State v. Richards , 26 Ariz. App. 41, 41-42, 545 P.2d 1003 (1976). Richards , however, did not address "the effect of the dismissal of this appeal upon the underlying conviction appealed from," or "whether a fine or forfeiture of property based upon the prior conviction would require the same determination of mootness." Id.

¶8 Three years later, the Arizona Supreme Court held that a criminal defendant's "death pending appeal abates the appeal and the conviction" and remanded "with directions to dismiss the indictment." Griffin , 121 Ariz. at 539, 592 P.2d at 373. Griffin , however, left unresolved whether abatement "should include an order for reimbursement of the fine and restitution" defendant had paid before he died. Id. Although a civil case, In re Estate of Vigliotto stated that "a restitution order, albeit one that is an allocated portion of a fine, survives a defendant's death." 178 Ariz. 67, 69, 870 P.2d 1163, 1165 (App. 1993).

¶9 Twenty years later, Glassel held that abatement did "not apply when a defendant dies after his conviction is affirmed, but while postconviction relief proceedings are pending." 233 Ariz. at 353 ¶ 1, 312 P.3d 1119, 1119. Glassel , however, declined to address arguments by amicus curiae filed on behalf of victims that abatement violates victims' rights and that other states "have abandoned or modified the doctrine." Id. at 355 ¶ 12, 312 P.3d at 1121. The year after Glassel , the Legislature enacted A.R.S. § 13-106.

¶10 Given Reed's death while this appeal was pending, Section 13-106 directs that the appeal be dismissed and that his death "does not abate" his conviction, sentence "or any restitution, fine or assessment imposed by the sentencing court." A.R.S. § 13-106(A) & (B). Reed's counsel makes no argument to the contrary, arguing instead that Section 13-106 is unconstitutional for various reasons. Before addressing those arguments, the State's standing argument must be resolved.

III. Standing.

¶11 The State argues Reed's right to appeal ended when he died and that his counsel "and third parties - including the personal representative of Reed's estate" lack standing to challenge the constitutionality of Section 13-106. In essence, the State argues that no one would ever have standing to challenge Section 13-106. The State concedes, however, that "standing is not a constitutional jurisdictional requirement in the state courts of Arizona." State v. B Bar Enters., Inc. , 133 Ariz. 99, 101 n.2, 649 P.2d 978, 980 (1982). Instead, Arizona's standing requirement is prudential. See Bennett v. Brownlow , 211 Ariz. 193, 196 ¶ 14, 119 P.3d 460 (2005).

¶12 Prudential standing under Arizona law requires "a distinct and palpable injury," which "sharpens the legal issues presented by ensuring that true adversaries are before the court and thereby assures that our courts do not issue mere advisory opinions." Sears v. Hull , 192 Ariz. 65, 69 ¶ 16, 71 ¶ 24, 961 P.2d 1013, 1017, 1019 (1998). In "exceptional circumstances," this prudential standing requirement has been waived, "generally in cases involving issues of great public importance that are likely to recur." Id. at 71 ¶ 25, 961 P.2d at 1019.

¶13 In Glassel and Griffin , the Arizona Supreme Court tacitly found appeals involving abatement are just such "exceptional circumstances" where standing is waived. See Glassel , 233 Ariz. at 354, 312 P.3d at 1120 (allowing defense counsel to brief petition for review and merits, and present oral argument, after defendant died while his post-conviction relief petition was pending); Griffin , 121 Ariz. at 538, 592 P.2d at 372 (allowing defense counsel to file petition for review and brief merits after defendant died while appeal was pending). For these same reasons, in this unique setting, the constitutional challenges pressed by Reed's counsel to the application of Section 13-106 do not fail for lack of standing.

IV. Challenges To The Application Of A.R.S. § 13-106.

¶14 Reed's counsel argues Section 13-106 (1) abrogates a criminal defendant's appeal rights under the Arizona Constitution; (2) violates separation of powers principles; (3) violates due process and (4) is an improper bill of attainder. "When a state statute conflicts with Arizona's Constitution, the constitution must prevail." Dobson v. State ex rel. Comm'n on Appellate Court Appointments , 233 Ariz. 119, 124 ¶ 17, 309 P.3d 1289, 1294 (2013). There is, however, "a strong presumption supporting the constitutionality of any legislative enactment." State v. Tocco , 156 Ariz. 116, 119, 750 P.2d 874, 877 (1988). "[T]he burden of proof is on the opponent of the statute to show it infringes upon a constitutional guarantee or violates a constitutional principle." State v. Casey , 205 Ariz. 359, 362 ¶ 11, 71 P.3d 351, 354 (2003) (citation omitted). Using these standards, the court addresses these arguments in turn.

A. The Right To Appeal.

¶15 Reed's counsel argues that Section 13-106"directly conflicts with the constitutional right to appeal by removing that right." Arizona's Constitution provides that, "[i]n criminal prosecutions, the accused shall have ... the right to appeal in all cases." Ariz. Const. art. 2, § 24 ; accord A.R.S. § 13-4031 ("Right of appeal"); A.R.S. § 13-4033 ("Appeal by defendant"); Ariz. R. Crim. P. 31 ("Appeals"). The argument that Reed was denied this right to appeal fails for several reasons.

¶16 Reed's counsel suggests that the right to appeal is, in essence, the right to a specific process or result on appeal. Not so. The right to appeal is not a right to a specific result or even a decision on the merits. See, e.g. , A.R.S. §§ 13-4036(A) (on appeal from conviction, court may "make any order which is consistent with ... justice and the rights of the state and the defendant"); 13-4039 ("If the appellant fails to prosecute the appeal, the appellate court shall dismiss the appeal."). Reed's counsel does not assert that Arizona's rule of abatement, in place before the enactment of Section 13-106, denied the right to appeal. Yet when applying that rule, Griffin declined to order reimbursement of restitution and fines paid before the appellant died. 121 Ariz. at 539, 592 P.2d at 373. Reed's counsel has not shown how Section 13-106 improperly deprives Reed of his right to appeal, as opposed to properly setting forth a rule of decision for the appeal.

¶17 Reed invoked his right to appeal when, before he died, he timely filed his prior appeal and then this appeal. As a result, the cases cited by Reed's counsel addressing waiver of the right to file an appeal, or the improper conditioning of that right, miss the mark. See State v. Goldsmith , 112 Ariz. 399, 400, 542 P.2d 1098, 1099 (1975) (rejecting, as "completely without merit," State's argument "that the appeal should be dismissed because [the defendant] had not been apprehended as of the date that his appeal was filed"); State v. Bolding , 227 Ariz. 82, 88 ¶ 20, 253 P.3d 279, 285 (App. 2011) (concluding statute prohibiting appeal based on defendant's absence at sentencing is constitutional if absence was "a knowing, voluntary, and intelligent waiver of his constitutional right to appeal," but finding statute could not apply on facts of the case); State v. Freitag , 212 Ariz. 269, 271-72 ¶¶ 12-14, 130 P.3d 544, 546-47 (App. 2006) (striking, as unconstitutional, municipality's "assessment of a fee" on defendant as a condition "to pursue his criminal appeal"). Because Reed twice invoked his right to appeal, there can be no claim that he was denied that right.

¶18 Reed's counsel cites cases addressing various common law approaches used in other jurisdictions when a criminal defendant dies while an appeal is pending. See, e.g., Brass v. State , 130 Nev. 318, 325 P.3d 1256, 1257-58 (2014) (discussing jurisdictions: (1) applying abatement; (2) allowing the appeal to proceed and (3) dismissing the appeal and letting the conviction stand); State v. Carlin , 249 P.3d 752, 754 (Alaska 2011) (rejecting abatement; adopting rule where the "conviction will stand unless the defendant's personal representative elects to continue the appeal"); State v. Korsen , 141 Idaho 445, 111 P.3d 130, 135 (2005) (holding "criminal conviction and any attendant order requiring payment," including restitution, "are not abated, but remain intact"); State v. Webb , 167 Wash.2d 470, 219 P.3d 695, 698 ¶ 13, 699 ¶ 22 (2009) (noting court "ha[d] been presented with no authority holding that a deceased defendant's right to appeal mandates abatement of all convictions or all monetary obligations imposed" and adopting rule similar to Carlin ); see also Griffin , 121 Ariz. at 538-39, 592 P.2d at 373 (noting approaches used in other jurisdictions). Clearly, different jurisdictions treat the issue in different ways. But the existence of different approaches in other jurisdictions does not mean the approach adopted in Section 13-106 is unconstitutional.

¶19 Because Reed was not denied his right to appeal, application of Section 13-106 does not unconstitutionally deny him that right.

B. Separation Of Powers.

¶20 Reed's counsel argues Section 13-106 is "an attempt by the Legislature to enact a procedural rule and to adjudicate cases" and is "a judicial act outside the authority of the Legislature." Arizona's Constitution provides:

The powers of the government of the state of Arizona shall be divided into three separate departments, the legislative, the executive, and the judicial; and, except as provided in this constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.

Ariz. Const. art. 3. Although the Arizona Supreme Court has rulemaking power "relative to all procedural matters in any court,"

Ariz. Const. art. 6 § 5, the Legislature has "the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims," Ariz. Const. art. 2 § 2.1 (D).

¶21 Reed's counsel asserts that "[t]his issue is controlled by State ex rel. Napolitano v. Brown , 194 Ariz. 340, 982 P.2d 815 (1999)." Brown struck, on separation of powers grounds, statutory time limits for post-conviction relief proceedings that conflicted with the Arizona Rules of Criminal Procedure. 194 Ariz. at 344 ¶ 16, 982 P.2d at 819. The Brown analysis, however, was refined in State v. Hansen , which rejected a separation of powers challenge to statutory time limits for restitution payments that conflicted with the Arizona Rules of Criminal Procedure. 215 Ariz. 287, 289 ¶ 8, 291 ¶ 18, 160 P.3d 166, 168, 170 (2007). Thus, Hansen provides the analysis applicable here.

¶22 The analysis in Hansen begins with addressing whether the provision is substantive or procedural. Id. at 289 ¶ 9, 160 P.3d at 168. If substantive, Section 13-106 presents no separation of powers issue. Id. at 289 ¶ 10, 160 P.3d at 168-69. However, recognizing "the procedural/substantive distinction is 'always elusive at the margins,' " Graf v. Whitaker , 192 Ariz. 403, 406 ¶ 10, 966 P.2d 1007 , 1010(App. 1998) (citation omitted), the court assumes, without deciding, that Section 13-106 is procedural, see Hansen , 215 Ariz. at 289 ¶ 10, 160 P.3d at 168-69. Based on that assumption, the inquiry focuses on whether the statute (1) "affects rights unique and specific to victims;" (2) was enacted to exercise the Legislature's authority to protect victims' rights and (3) advances victims' rights. Hansen , 215 Ariz. at 290-91 ¶¶ 14-16, 160 P.3d at 169-70. Applying Hansen , Section 13-106 does not exceed the authority granted to the Legislature by the Arizona Constitution because it affects "rights unique and specific to victims;" was enacted in response to Glassel (which noted concerns by amicus curiae filed on behalf of victims) and "advances victims' rights." See Hansen , 215 Ariz. at 290-91 ¶¶ 12-18, 160 P.3d at 169-70.

¶23 Reed's counsel also argues Section 13-106 improperly "affirms trial court judgments" and means "that all trial court decisions that disfavor criminal defendants are valid." Application of the statute, however, does not affirm the judgment. Instead, upon the death of a defendant, any pending appeal is to be dismissed, a result that does not affirm the superior court judgment. Finally, Reed's counsel has not shown how Section 13-106"could be read to usurp the judiciary" by "remov[ing] jurisdiction from this Court." For these reasons, Section 13-106 does not violate separation of powers.

C. Due Process.

¶24 Reed's counsel argues Section 13-106 violates the due process clauses of the United States and Arizona Constitutions. To the extent this argument is based on the assertion that Reed was denied his right to appeal, it fails for the reasons discussed above. To the extent this argument asserts Section 13-106 means "[d]ue process has been removed" from restitution or gives the State a "right to fines or assessments without legal basis," the authority cited does not support that assertion. See Nelson v. Colorado , --- U.S. ----, 137 S.Ct. 1249, 1252, 197 L.Ed.2d 611 (2017) (when a conviction is reversed and will not be retried, due process requires the government to refund fees, costs and restitution paid without the defendant filing a civil proceeding); State v. Reese , 124 Ariz. 212, 214-15, 603 P.2d 104, 106-07 (App. 1979) (concluding, absent a plea agreement to the contrary, restitution could not be awarded for charges dismissed or never brought). Moreover, particularly given the various approaches in other jurisdictions when a defendant dies while a criminal appeal is pending, Section 13-106 cannot be deemed to embrace "conduct that 'shocks the conscience' or interferes with rights 'implicit in the concept of ordered liberty.' " Martin v. Reinstein , 195 Ariz. 293, 313-14 ¶ 66, 987 P.2d 779, 799-800 (App. 1999).

¶25 Reed's counsel correctly notes that crime victims have alternatives, other than seeking restitution in a criminal case, to seek recovery from a criminal defendant. See A.R.S. § 13-807 ("An order of restitution ... does not preclude ... bringing a separate civil action and proving in that action damages in excess of the amount of the restitution order."); see also §§ 14-3801 to -3816 (procedures for creditors' claims against an estate). Those alternatives, however, were available before the enactment of Section 13-106. Cf. Griffin , 121 Ariz. at 539, 592 P.2d at 373 (noting "[t]here are adequate civil procedures" to resolve "collateral issues which may arise as a result of" abatement). Moreover, the existence of such alternatives does not mean Section 13-106 violates due process.

¶26 In the end, Reed's counsel asserts that Arizona's common law abatement rule, not Section 13-106, strikes a better balance. Absent a constitutional infirmity, however, it is for the Legislature to strike that balance. See Vo v. Superior Court , 172 Ariz. 195, 205, 836 P.2d 408, 418 (App. 1992) (noting "the wisdom or soundness of policy of legislative enactments ... are clearly addressed to the legislature, not to the courts"). Because Reed's counsel has not shown that Section 13-106 violates due process, both his facial and as-applied due process challenges fail. See Hernandez v. Lynch , 216 Ariz. 469, 472 ¶ 8, 167 P.3d 1264, 1267 (App. 2007) (noting, for facial challenge, "the party challenging the provision must demonstrate that no circumstances exist under which the regulation would be valid") (citing cases).

D. Bill Of Attainder.

¶27 Reed's counsel argues that Section 13-106 is a bill of attainder. See Ariz. Const. art. 2 § 25 ("No bill of attainder ... shall ever be enacted."). A bill of attainder, however, is a "trial by legislature" that "inflict[s] punishment without a judicial trial." State v. Allie , 147 Ariz. 320, 325, 710 P.2d 430, 435 (1985) (citation omitted). Here, Reed had both a jury trial resulting in his conviction and a bench trial resulting in the restitution order. Accordingly, "none of the dangers identified with a traditional bill of attainder are present" and Reed "was not convicted by legislative act." Allie , 147 Ariz. at 325, 710 P.2d at 435. Section 13-106 is not a bill of attainder.

V. Enforcement Of, And Third-Party Challenges To, The Restitution Order.

¶28 Apart from these constitutional arguments, Reed's counsel argues that a dismissal under Section 13-106 would not provide an "outcome of [the] appeal" under A.R.S. § 13-804(D), meaning the restitution order would "never become final and cannot be enforced." By statute, restitution payments "shall not be stayed" pending appeal, but "may be held by the court pending the outcome of an appeal." A.R.S. § 13-804(D). A dismissal under Section 13-106 provides "the outcome of" the appeal. Reed's counsel has not shown how a dismissal under Section 13-106 would mean that the restitution order would "never become final" and enforceable. Even under Arizona's common law rule of abatement, "a restitution order, albeit one that is an allocated portion of a fine, survives a defendant's death." Vigliotto , 178 Ariz. at 69, 870 P.2d at 1165.

¶29 Reed's counsel also asserts that "[t]here does not appear, at this time, to be a forum where Mr. Reed's family or others with an interest in his reputation or estate could dispute the validity of the restitution order." By statute, "[a] criminal restitution order may be recorded and is enforceable as any civil judgment." A.R.S. § 13-805(E). Reed's counsel speculates that, in a civil action, the restitution order "could only be voidable, not void" and that Section 13-106 would mean the order is "not 'subject to reversal.' " Ruiz v. Lopez , 225 Ariz. 217, 222 n.3, 236 P.3d 444, 449 (App. 2010). This argument, however, is based on the view that a dismissal under Section 13-106 is a decision on the merits of the appeal. The statute, however, directs that the appeal be dismissed without this court deciding the merits.

¶30 This argument also is based on Arizona Rule of Civil Procedure 60, which governs relief from a final judgment or order in a civil case. This, however, is not a civil case. Accordingly, as noted in addressing an analogous argument in Griffin , "[w]hatever merit there may be in this contention, it should not be resolved in this case." 121 Ariz. at 539, 592 P.2d at 373. Resolution of such arguments would involve superior court proceedings, which apparently have not yet occurred and may never occur, governed by civil or probate procedural rules, applying substantive law other than criminal law and involving individuals not parties here. Accordingly, for now, the constitutionality of Section 13-106 "is the only matter which can be legitimately settled in this action." Griffin , 121 Ariz. at 539, 592 P.2d at 373.

CONCLUSION

¶31 Having been informed of the death of appellant Richard Allen Reed, and having concluded that A.R.S. § 13-106 is constitutional, this appeal is dismissed.

      Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.

      Recognizing this opinion is based on the "legal issues advanced by the parties themselves," Ruiz v. Hull , 191 Ariz. 441, 446 ¶ 15, 957 P.2d 984, 989 (1998), the court has received briefs from Lanna Mesenbrink, Reed's surviving spouse and personal representative; Arizona Voice for Crime Victims and the National Crime Victim Law Institute. Although Mesenbrink sought to intervene or be substituted as appellant, she provided no relevant authority supporting that relief, which was denied. Cf. State v. Griffin , 121 Ariz. 538, 539, 592 P.2d 372, 373 (1979) ("[T]here is no provision of statute or rule of court which provides for substitution of the estate as a party in a criminal case."). Mesenbrink also filed a "Motion for Clarification of State's Errors." Any relief requested in that motion is denied.

      For example, the majority in Durham vacated the conviction and remanded "with directions to dismiss the indictment," 401 U.S. at 483, 91 S.Ct. 858 ; three Justices would have dismissed the petition for certiorari as moot, id. at 484, 91 S.Ct. 858 (Marshall, J., joined by Burger, C.J., and Stewart, J.), while another would have dismissed the "petition for certiorari, rather than direct dismissal of the indictment," id. (Blackmun, J., dissenting); see also Dove v. United States , 423 U.S. 325, 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976) (upon petitioner's death, dismissing petition for certiorari without remand or instructions, adding that "[t]o the extent" Durham "may be inconsistent with this ruling, Durham is overruled").

      Nor are cases Reed's counsel cites regarding appellate resources dispositive here. See, e.g., Evitts v. Lucey , 469 U.S. 387, 393, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (counsel on appeal); Wilson v. Ellis , 176 Ariz. 121, 124, 859 P.2d 744, 747 (1993) (transcripts in postconviction relief proceedings).


author: McMURDIE, Judge:

text:
    SIETE SOLAR, LLC, et al., Plaintiffs/Appellants, v. ARIZONA DEPARTMENT OF REVENUE, et al., Defendants/Appellees.
    No. 1 CA-TX 18-0002
    Court of Appeals of Arizona, Division 1.
    FILED January 29, 2019
    Mooney Wright & Moore, PLLC, Mesa, By Paul J. Mooney (argued) and Bart S. Wilhoit, Counsel for Plaintiffs/Appellants
    Arizona Attorney General's Office, Phoenix, By Macaen F. Mahoney and Lisa Neuville (argued), Counsel for Defendants/Appellees
    Acting Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in which Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.
   McMURDIE, Judge:

¶1 Appellants Siete Solar, LLC ("Siete"), Mesquite Solar, LLC ("Mesquite"), and Perrin Ranch Wind, LLC ("Perrin") appeal from the tax court's dismissal of their complaint, and Arlington Valley Solar Energy II, LLC ("Arlington") appeals the court's grant of summary judgment for the Arizona Department of Revenue (the "Department"). We affirm the tax court's application of Arizona Revised Statutes ("A.R.S.") section 42-14153(C) and hold that a statutory amendment enacted after the valuation date that changes the method of valuation requires retroactive application to apply to the corresponding tax year.

FACTS AND PROCEDURAL BACKGROUND

¶2 The parties do not dispute the facts in this case. Siete, Mesquite, Perrin, and Arlington (collectively "Taxpayers"), operate electric generation facilities that use renewable energy equipment. As part of the American Recovery and Reinvestment Act of 2009, Taxpayers received either an investment tax credit or a cash grant in lieu of the credit (either referred to as "tax incentive") for a portion of the costs to build their respective facilities.

¶3 In February of each year, the Department provides a form to facility owners requesting information necessary for the valuation of property. A.R.S. § 42-14152(A). The Department then calculates the value of renewable energy equipment pursuant to A.R.S. § 42-14155 and A.R.S. § 42-14156 (collectively the "valuation method"). Before an amendment in 2014, A.R.S. § 42-14155(B) directed the Department to value renewable energy equipment at "twenty per cent of the depreciated cost of the equipment," but provided no definition of "cost."

¶4 In 2013, Siete, Mesquite, and Perrin (the "2014 Appellants") each submitted an annual report to the Department for the 2014 tax year reporting the cost of their facilities. The 2014 Appellants' respective reports calculated their cost of the energy equipment by subtracting the amount received in tax incentives from the actual cost. However, the Department disallowed the deducted tax-incentive amounts before applying the valuation method to determine the properties' full cash value (the "final valuation"). The Department's refusal to deduct the tax-incentive amounts from the actual cost increased the 2014 Appellants' tax liability. The 2014 Appellants appealed to the State Board of Equalization, which upheld the Department's final valuation. The 2014 Appellants appealed the Board's decision.

¶5 While the 2014 Appellants' appeal was pending in the superior court, the legislature enacted an amendment to A.R.S. § 42-14155 (the "2014 Amendment"). The 2014 Amendment altered the valuation method by specifically allowing taxpayers to deduct tax incentives from the cost of renewable energy equipment. See A.R.S. § 42-14155(C)(4) (2014). Because the 2014 Amendment did not contain an emergency provision or a retroactivity clause, it became effective on July 24, 2014, the general effective date for legislation enacted during the 2014 session. See Ariz. Const. art. 4, pt. 1, § 1 (3). Eventually, the 2014 tax year dispute resulted in an appeal to this court. See Siete Solar, LLC v. Ariz. Dep't of Revenue (Siete I ), 1 CA-CV 15-0126, 2015 WL 8620672 (Ariz. App. Dec. 10, 2015) (mem. decision). On appeal, the 2014 Appellants argued the 2014 Amendment should apply to their tax appeal because it became effective before the taxes in question were assessed. Id. at *3, ¶ 12.

¶6 In August 2014, while the dispute over the 2014 tax year valuations continued, the Department issued the final valuations for the 2015 tax year. Taxpayers had again reported their cost as the actual cost minus the tax incentives. The Department, applying the pre-amended version of A.R.S. § 42-14155, again disallowed the tax incentive amounts to be deducted from the actual costs before computing the Taxpayers' final valuations. Taxpayers timely appealed the 2015 final determination directly to the tax court pursuant to A.R.S. § 42-16204. Taxpayers moved for summary judgment, asserting the Department was obligated to use the valuation method prescribed in the 2014 Amendment for their final valuations. Because the 2014 Appellants' appeal was still pending, the tax court stayed the 2015 tax-year proceedings pending a decision in the prior case.

¶7 In Siete I , we concluded that the 2014 Amendment was not retroactive-nor was it a clarification of the law-and thus, it did not apply to the 2014 tax year. 2015 WL 8620672, at *4, ¶ 18. After the decision, the Department moved to dismiss the 2014 Appellants' complaint for the 2015 tax year based on issue preclusion and for summary judgment on Arlington's claims. The tax court denied Taxpayers' motion for summary judgment and granted the Department's motions. Taxpayers timely appealed, and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

¶8 Taxpayers argue on appeal that the tax court erred by: (1) granting the Department's motion to dismiss the 2014 Appellants' claims based on issue preclusion and granting the Department's summary judgment motion against Arlington based on the decision in Siete I ; and (2) not applying the 2014 Amendment to the 2015 tax year, resulting in the improper denial of Taxpayers' motion for summary judgment on all claims.

¶9 We review the tax court's dismissal of a complaint for failure to state a claim, Zubia v. Shapiro , 243 Ariz. 412, 414, ¶ 13, 408 P.3d 1248, 1250 (2018), and grant of summary judgment, Sw. Airlines Co. v. Ariz. Dep't of Revenue , 217 Ariz. 451, 452, ¶ 6, 175 P.3d 700, 701 (App. 2008), de novo . Although Taxpayers' appeal presents several procedural issues regarding the dismissal of the claims, we confine ourselves to the one substantive issue that is dispositive-whether the Department was required to calculate the 2015 tax year final valuations in accordance with the 2014 Amendment, which was enacted after the valuation date but prior to the date when the Department must determine the final valuation. Statutory interpretation raises questions of law and is reviewed de novo . Calpine Constr. Fin. Co. v. Ariz. Dep't of Revenue , 221 Ariz. 244, 247, ¶ 12, 211 P.3d 1228, 1231 (App. 2009).

¶10 Taxpayers contend the tax court misapplied the law because: (1) the legislature intended for the 2014 Amendment to apply to the 2015 tax year; and (2) principles of retroactivity need not apply because the 2014 Amendment was enacted before the Department set the final valuations for the 2015 tax year. Taxpayers assert the Department was not required to apply the law as it existed on the valuation date. Instead, they contend, A.R.S. § 42-14153(C)"merely fixes the date the parties must use to determine full cash value." We understand the Taxpayers' argument to be that the legislature may change the valuation method at any time during the valuation year and the application of the new valuation method to property-as it existed on the valuation date-is not a retroactive application of the law.

A. Unless the Legislature States Otherwise, the Law Governing the Valuation Method and Classification of Property is the Law in Effect on the Valuation Date.

¶11 The Department is charged with determining a property's full cash value in accordance with A.R.S. Title 42, Chapter 14. The applicable statutes read as follows:

On or before August 31 of each year the department shall find the full cash value of the property of each [electric generation facility] that operates in this state.

A.R.S. § 42-14153(A).

[T]he department shall determine the full cash value of taxable renewable energy equipment in the manner prescribed by this section.

A.R.S. § 42-14155(A).

The valuations required by this section are the values determined as of January 1 of the valuation year.

A.R.S. § 42-14153(C).

"Valuation year" means ... the calendar year preceding the year in which the taxes are levied.

A.R.S. § 42-11001(19)(a).

Under these provisions, on or before August 31 of each year, the Department must determine the final valuation of taxable renewable energy equipment as it existed on January 1 of the same year, the valuation date. The final valuation is then used to assess the tax for the upcoming year-the tax year.

¶12 Taxpayers make several arguments to support their contention that the valuation date does not "set" the law in effect on that date, it is merely a point in time to base the valuation. We disagree for the following reasons.

1. The Final Valuation May be Altered Only Pursuant to Statute.

¶13 Taxpayers argue that because the final valuation may be altered after the valuation date, A.R.S. § 42-14153(C) does not require the Department to use the law that is in effect on that date. As support, they cite A.R.S. § 42-14004 and A.R.S. § 42-15105(1).

But these statutes do not support Taxpayers' contentions. Although the legislature instructs the Department on the manner and method of valuation, it allows county assessors some discretion. Compare A.R.S. § 42-14155(A) ("[T]he department shall determine the full cash value of taxable renewable energy equipment in the manner prescribed by this section."), with A.R.S. § 42-13051(B)(2) (an assessor must determine the full cash value "using the manuals furnished and procedures prescribed by the department"), and Berge Ford, Inc. v. Maricopa County , 172 Ariz. 483, 485, 838 P.2d 822, 824 (Tax Ct. 1992) ("The criteria which the assessor applies are derived from applicable statutes, guidelines of the Department of Revenue, and policy from the assessor's own office. The statutory framework which provides for the assessment of property contemplates that the assessor will exercise much discretion in deciding classification and valuation.").

¶14 The Department values renewable energy equipment pursuant to statute. The legislature left no room for the Department to exercise its discretion when it determines the valuation of renewable energy equipment. Although Taxpayers' cited statutes do allow for an alteration of the final valuation, the legislature has only authorized specific tax officers to revalue property under certain circumstances. See A.R.S. § 42-14004 (the Department may only change the valuation to properly reflect the property's full cash value); A.R.S. § 42-15105(1) (the county assessor may change a property's classification and value if the nature of the property has changed). Taxpayers have not pointed to-nor have we found-a statute that authorizes the Department to revalue property to account for a change in the valuation method after the valuation date.

2. The Valuations Determined Pursuant to A.R.S. § 42-14153(C) Require the Department to Apply the Law in Effect on the Valuation Date.

¶15 Next, Taxpayers assert that the language "as of" in A.R.S. § 42-14153(C) permits the Department to apply a valuation method that came into existence after the valuation date. They attempt to separate the valuation method from the valuation characteristics of the property, which are used to classify and appropriately value the property under the applicable valuation method. See Aileen H. Char Life Interest v. Maricopa County , 208 Ariz. 286, 291, ¶ 8, 93 P.3d 486, 491 (2004) ("Four general elements comprise the formula by which Arizona measures a property tax: classification, valuation, assessment ratio, and tax rate."). Taxpayers contend that A.R.S. § 42-14153(C) does not fix the law as it exists on the valuation date but fixes the characteristics of the property (e.g., the age of the property) as they exist on that date.

¶16 "We construe related statutes in the context of the statutory scheme and strive to achieve consistency among them. We also strive to avoid an absurd result, which is defined as one 'so irrational, unnatural, or inconvenient that it cannot be supposed to have been within the intention of persons with ordinary intelligence and discretion.' " Ariz. Dep't of Revenue v. S. Point Energy Ctr., LLC , 228 Ariz. 436, 439, ¶ 12, 268 P.3d 387, 390 (App. 2011) (citation omitted) (quoting Perini Land & Dev. Co. v. Pima County , 170 Ariz. 380, 383, 825 P.2d 1, 4 (1992) ). Absent statutory definitions, courts apply common meanings to words and phrases used in a statute. S. Point Energy , 228 Ariz. at 440, ¶ 15, 268 P.3d at 391.

¶17 A.R.S. § 42-14153(C) states that the valuations required are the "values determined as of" the valuation date. Taxpayers argue that if the legislature intended to bind the parties to the law "as if it was" on January 1, it would have stated "on." However, "as of" generally means at or on a specific time or date. See United States v. Munro-Van Helms Co. , 243 F.2d 10, 13 (5th Cir. 1957) (" 'As of' means 'as if it were.' "). Moreover, substituting the word "on" in the statute would alter its meaning. To read the statute as Taxpayers suggest would require the Department to determine all property valuations on the date of January 1, which is not the case. The Department starts the valuation process on January 1, the final valuations must be completed by August 31.

¶18 Additionally, the "valuation" is the result of applying the valuation method for the property as classified. See A.R.S. § 42-11001(6), (17) (valuation means the value determined as prescribed by statute). Accordingly, the "values determined as of [the valuation date]" necessarily include not only the application of the legal classification criteria as if it were the valuation date, see e.g. , Phxaz Ltd. P'ship v. Maricopa County , 192 Ariz. 490, 492, ¶ 6, 967 P.2d 1026, 1028 (App. 1998) ("For tax year 1995, the Maricopa County Assessor took the position that as of the valuation date of January 1, 1995, the 213-acre golf course parcel did not constitute a 'golf course' for the purposes of A.R.S. section 42-146(G)." (emphasis added) ); SMP II Ltd. P'ship v. Ariz. Dep't of Revenue , 188 Ariz. 320, 324, 935 P.2d 898, 902 (App. 1996) ("Taxpayer responds by acknowledging the rule that a valuation decision must be based solely on evidence in existence as of the assessment date." (emphasis added) ), but also the law as if it were the valuation date, see A.R.S. § 42-16257.

¶19 Likewise, to interpret "as of" to mean anything other than "as if it were" would lead to an absurd result. Taxpayers take the position that because the legislature did not expressly direct the Department to determine property valuation by the valuation method "in effect on the valuation date," as it did in A.R.S. § 42-16257, the valuation date was not intended to set the law applicable to the valuation method. However, A.R.S. § 42-16257 only bolsters the Department's interpretation. A.R.S. § 42-16257, which governs property valuation in the case of a correction, requires the Department to "use the valuation and legal classification criteria that were in effect on the valuation date for the tax year of the correction." If Taxpayers are correct that the Department must apply the 2014 Amendment to their final valuations-but when correcting an error for a similarly situated taxpayer, the Department is limited to the law in effect on the valuation date-it would yield an "absurd result" as it would violate our constitution. See Ariz. Const. art. 9, § 1 ("[A]ll taxes shall be uniform upon the same class of property....").

B. We Decline to Examine the Legislative Intent Because A.R.S. § 42-14153(C) Is Not Ambiguous.

¶20 Taxpayers additionally argue that as the primary goal in statutory interpretation is to give effect to the Legislature's intent, the legislature showed its intent for the 2014 Amendment to apply to the 2015 tax year by "expressly stat[ing] that the new law would be effective on the 'general effective date,' " (which was July 24, 2014) in the HB2403 Fact Sheet. And because the "primary intent of the amendment to § 42-14155 was to resolve the issue of how to handle cash grants and investment tax credits in the context of statutory valuation," Taxpayers maintain it would not be reasonable for the legislature to enact a statute to fix a problem, and "hold the statute in abeyance for over a year after it expressly decreed it would go into effect."

¶21 We decline to create ambiguity in order to allow us to examine the legislature's intent. "When the plain text of a statute is clear and unambiguous there is no need to resort to other methods of statutory interpretation to determine the legislature's intent because its intent is readily discernable from the face of the statute." State v. Christian , 205 Ariz. 64, 66, ¶ 6, 66 P.3d 1241, 1243 (2003); see also U.S. W. Commc'ns, Inc. v. Ariz. Dep't of Revenue , 193 Ariz. 319, 322, ¶ 12, 972 P.2d 652, 655 (App. 1998). Taxpayers fail to identify any language within the statute that shows retroactive intent. See A.R.S. § 1-244 ("No statute is retroactive unless expressly declared therein."); see also Aranda v. Indus. Comm'n of Ariz. , 198 Ariz. 467, 470, ¶ 10, 11 P.3d 1006, 1009 (2000) ("Statutes must contain an express statement of retroactive intent before retroactive application may occur."); see also 2003 Ariz. Sess. Laws, ch. 37, § 4 (1st Reg. Sess.) (amending the definition of "renewable energy equipment"

in A.R.S. § 42-14155(C) for valuation purposes); id. at § 8 ("This act is effective retroactively to from and after December 31, 2002."); see also San Carlos Apache Tribe v. Superior Court ex rel. County of Maricopa , 193 Ariz. 195, 204-05, ¶ 14, 972 P.2d 179, 188-89 (1999) ("Declarations of intent may be helpful in interpretation, but the text of a measure must be considered first and foremost.").

C. The Legislature May Change the Law Governing the Valuation Method After the Valuation Date, but for the Department to Apply the New Valuation Method to the Final Valuation for the Corresponding Tax Year, the Statute Must be Denoted as Retroactive.

¶22 Taxpayers assert that retroactive application of the 2014 Amendment is not necessary because applying a newly enacted valuation method is not a retroactive application of the law, so long as the law is enacted before the start of the tax year.

¶23 Previously, the 2014 Appellants argued that "the 2014 amendment applie[d] to their tax appeals because the amendment became effective before the taxes in question were assessed." Siete I , 2015 WL 8620672, at *3, ¶ 12 ; see also A.R.S. § 42-15051 ("[P]roperty is assessed for taxes levied under this title when its valuation is determined and lawfully placed on the roll."). In this appeal, Taxpayers maintain that because the 2014 Amendment was enacted before the subject tax year-rather than the date of assessment-retroactivity is unnecessary, and "[ Siete I ] does not, and could not, overrule or disapprove of" "the breadth of authority establishing that changes in valuation methods occurring during the valuation year are applied to the corresponding tax year without being retroactive." The one tax case Taxpayers cite for the "breadth of authority" is Waddell v. 38th St. P'ship , 173 Ariz. 137, 840 P.2d 313 (Tax Ct. 1992).

¶24 But, as before, "Taxpayers' reliance on Waddell ... is misplaced." Siete I , 2015 WL 8620672, at *3, ¶ 12. In Waddell , several taxpayers prevailed in appealing their final valuations for the 1991 tax year after this court announced the standard the Department was to use to classify certain property. 173 Ariz. at 138-39, 840 P.2d at 314-15 ; see also Hayden Partners Ltd. P'ship v. Maricopa County , 166 Ariz. 121, 123, 800 P.2d 987, 989 (App. 1990). Shortly thereafter, the legislature passed an amendment clarifying the standard. The amendment included an emergency provision and expressly provided for the statute to be retroactive to the 1986 tax year. Waddell , 173 Ariz. at 139, 840 P.2d at 315. The Department then sued the taxpayers who had succeeded in obtaining a different final valuation amount under the Hayden Partners standard for the 1991 tax year. Id. The taxpayers appealed, arguing the retroactive application violated their due-process rights. Id. at 140, 840 P.2d at 316. The tax court held that "[t]he legislature has the power to make changes in classification standards at any time. It may make such changes retrospective, so long as, in doing so, it does not impair a vested right." Id. at 141, 840 P.2d at 317.

¶25 Waddell does not support the Taxpayers' position that a change in the law enacted after the valuation date must apply to the corresponding tax year even without a retroactivity clause. Although the amendment in Waddell included a retroactivity clause, Taxpayers claim that the retroactive statement was not necessary. They argue that unlike in Waddell, where the legislature enacted the amendment during the subject tax year, here the legislature knew that it was enacting the statute before the Department set the 2015 (the subject tax year) final valuations. However, given our statutory scheme's prospective valuation process, for an amendment altering the valuation method enacted after the statutory valuation date to apply to the upcoming tax year, the amendment must be applied retroactively. See Daou v. Harris , 139 Ariz. 353, 357, 678 P.2d 934, 938 (1984) ("[W]e presume that the legislature, when it passes a statute, knows the existing laws."); see also Siete I , 2015 WL 8620672, at *4, n.4 ("Indeed, the legislature is aware of its power to make tax statutes retroactive, and has done so on many occasions when amending laws regarding the valuation of property. See, e.g. , 2009 Ariz. Sess.

Laws, ch. 169, §§ 1-2 (amending A.R.S. § 42-14403 ; relating to the valuation of telecommunications property, retroactively effective to December 31, 2008); 2002 Ariz. Sess. Laws, ch. 234, § 3 (amendments relating to valuation of electric generation property and retroactively effective to January 1, 2002); 1994 Ariz. Sess. Laws, ch. 271, §§ 2-3 (amendments relating to valuation of telecommunications property and retroactively effective to January 1, 1994).").

¶26 Alternatively, Taxpayers argue we should "adopt the same position that [the Department]" did in Waddell , that "application of the statutory amendment is not a retroactive application at all." The Department's position in Waddell was that the amendment was a clarification of the law, not a change in the law. However, Taxpayers conceded in addressing the procedural issues in this case that the 2014 Amendment was a change in the law. Waddell represents a limitation on the legislature's power to enact a statute retroactively when it affects a vested substantive right. It does not, however, suggest that a statute that does not affect a vested substantive right is presumptively applied retroactively.

¶27 Finally, Taxpayers insist that because "a statute is considered retroactive when it affects a vested right," Gore v. Gore , 169 Ariz. 593, 595, 821 P.2d 254, 256 (App. 1991), and "taxpayers have no vested right in the factors used to determine the actual value of assessed property," Waddell , 173 Ariz. at 141, 840 P.2d 313 (quotation omitted), the application of the 2014 Amendment's valuation method should not be considered a retroactive application. They support their argument by focusing on the "completed events." See Aranda , 198 Ariz. at 471, ¶ 18, 11 P.3d at 1010 ("A property right 'vests' when every event has occurred which needs to occur to make the implementation of the right a certainty.").

¶28 We find Taxpayers' arguments do not apply. None of the cases address tax statutes. Nor do they concern a statute that specifically points to a date that the Department is required to base its final valuation. See Gore , 169 Ariz. at 595, 821 P.2d at 256 (legislature's amendment extending child support obligations from the age of majority to the child's completion of high school was not considered a retroactive application because the statute was enacted before the parent's right was vested on the child's 18th birthday); Harrelson v. Indus. Comm'n of Ariz. , 144 Ariz. 369, 370, 697 P.2d 1119, 1120 (App. 1984) (statute applied retroactively that prevented administrative law judge from considering an untimely petition). Taxpayers' mischaracterization of these cases, suggesting that the Department must apply a change in the law if it changes the method of valuation "at any time until the taxing process is complete" unless it affects a substantive vested right, is simply incorrect. See Aranda , 198 Ariz. at 470, ¶ 11, 11 P.3d at 1009 ("Enactments that are procedural only, and do not alter or affect earlier established substantive rights may be applied retroactively. Even if a statute does not expressly provide for retroactivity, it may still be applied if merely procedural because litigants have no vested right in a given mode of procedure." (emphasis added) ); In re Dos Cabezas Power Dist. , 17 Ariz. App. 414, 418, 498 P.2d 488 (1972) ("The rule is that any right conferred by statute may be taken away by statute before it has become vested." (emphasis added) ). Because a statute may be applied retroactively, does not mean it must be applied retroactively.

¶29 As explained above, and in Siete I :

Valuations are set by the Department annually the year prior to the tax year; that valuation is then used to determine the full cash value of taxable property in accordance with statutory methods provided depending on the type of property. A.R.S. § 42-14151. The legislature has presumptively set the valuation date for property valued by the Department as "January 1 of the year preceding the year in which taxes are levied." A.R.S. § 42-11001(18). Thus, the valuation method employed by the Department in this case was statutorily mandated to be the method in place on [the valuation date] unless the legislature specifically provided otherwise.

2015 WL 8620672, at *4, ¶ 17. Taxpayers urge us to "avoid the temptation to rely on dicta from [ Siete I ]." We, nevertheless, reach the same conclusion. Because the language of A.R.S. § 42-14155 is unambiguous, and the amendment did not contain an express statement of retroactive intent, we reject the Taxpayers' argument that the Department improperly calculated Taxpayers' final valuation based on the version of A.R.S. § 42-14155 that was in effect on January 1, 2014.

CONCLUSION

¶30 Accordingly, we affirm. As the Taxpayers have not prevailed, we deny their request for fees.

      Although A.R.S. § 42-14153(C) refers to January 1 of the "valuation year," A.R.S. § 42-11001(18) defines "valuation date" as "January 1 of the year preceding the year in which taxes are levied." We refer to January 1 of the valuation year as the "valuation date" for brevity and because there is no distinction between the two dates.

      Taxpayers argue in their reply brief and at oral argument that the Department selectively implemented portions of the 2014 Amendment by adopting depreciation tables. We decline to consider the argument as it was not raised in the opening brief. See ARCAP 13(a)(7) ; Stafford v. Burns , 241 Ariz. 474, 483, ¶ 34, 389 P.3d 76, 85 (App. 2017) (the failure to develop an argument in a meaningful way constitutes waiver).


author: EPPICH, Presiding Judge:

text:
    The STATE of Arizona, Appellant, v. Raymond Verbon MORRIS III, Appellee.
    No. 2 CA-CR 2018-0123
    Court of Appeals of Arizona, Division 2.
    Filed January 22, 2019
    Barbara LaWall, Pima County Attorney, By Jacob R. Lines, Deputy County Attorney, Tucson, Counsel for Appellant
    Joel Feinman, Pima County Public Defender, By Erin K. Sutherland, Assistant Public Defender, Tucson, Counsel for Appellee
    Presiding Judge Eppich authored the opinion of the Court, in which Judge Espinosa and Judge Vásquez concurred.
   EPPICH, Presiding Judge:

¶1 The state appeals the trial court's ruling suppressing evidence police found while searching Raymond Verbon Morris III's backpack after his shoplifting arrest. Because the court erred in concluding there was no probable cause to support Morris's arrest, we vacate its ruling and remand the matter for further proceedings.

Factual and Procedural Background

¶2 In reviewing a motion to suppress, we view the evidence in the light most favorable to upholding the trial court's ruling. State v. Peoples , 240 Ariz. 244, ¶ 7, 378 P.3d 421 (2016). On September 29, 2017, while monitoring surveillance video, a retail store's loss-prevention employee saw Morris select a pair of sunglasses from a display, cut off and discard the price tag, and put them on. The employee called police to report that Morris was shoplifting. She continued to watch Morris and saw him select a package of condoms and an energy drink from the store's shelves and put them in his shopping cart on top of his backpack, which he had placed there after wearing it into the store. Later, she saw Morris manipulate the backpack, and the condoms and energy drink were no longer visible; the employee believed Morris had placed the items into the backpack. When police arrived, the loss-prevention employee showed the officer video of Morris cutting the price tag off the sunglasses. She also told the officer she had seen Morris conceal items in his backpack and showed him the portions of the surveillance video she believed showed the concealment.

¶3 In that video, Morris selected two small boxes from shelves in the pharmacy and placed them in the cart with the backpack. One of the boxes-purple with a white side panel-was visible in front of the backpack as Morris later navigated through the toy department. Morris remained in view as he pushed the cart out of the toy department and down a main aisle to the electronics department. As he traveled through the electronics department for the next eighty seconds, Morris and the cart were obscured behind displays most of the time, and when the cart was briefly visible during that time, the view of the purple and white box was obscured. Morris then pushed the cart down an aisle towards the camera and came back into view; his hands were manipulating the backpack, and when the place where the purple and white box had been came into view, the box was missing.

¶4 Morris put several other items in the cart's basket during the two hours he was in the store, but he returned many of them to the store's displays before approaching the store's self-checkout registers. Once at a register, Morris scanned the items remaining in the cart but not the sunglasses, energy drink or condoms. He then attempted to pay for the items he had scanned, but the credit card he used was declined several times. While Morris was still at the register, police officers approached him, told him they suspected him of shoplifting and escorted him to the loss-prevention office. There, they formally placed him under arrest for shoplifting based on his failure to pay for the sunglasses and concealment of items in the backpack.

¶5 After a check of Morris's criminal history revealed previous convictions on similar charges, police decided to arrest Morris for a felony. They then searched the backpack and found the condoms and energy drink, and also narcotics, drug paraphernalia and a loaded handgun. A grand jury indicted Morris on counts of prohibited possession of a weapon, possession of methamphetamine, possession of heroin and possession of drug paraphernalia.

¶6 Morris filed a motion to suppress the items police had found in his backpack, arguing his arrest was unlawful and that, in any event, the search was not valid as incident to the arrest. After an evidentiary hearing, the trial court granted the motion to suppress, finding there had been no probable cause to arrest Morris for shoplifting and the evidence from the backpack was inadmissible as fruit of the unlawful arrest. The court stated:

Defendant did not conceal the sunglasses, but instead, placed the sunglasses in plain view on his head. Furthermore, neither the deputies, nor the loss prevention officers, saw Defendant conceal the [condoms and energy drink], and therefore had not yet been able to determine if they were, in fact, concealed. In fact, it appears that loss prevention personnel took no steps to determine whether the [condoms and energy drink] were among the many items that Defendant had apparently returned to store shelves.
Because Defendant was still at the point of sale, he had not yet taken the items from the store without paying the purchase price. In fact, he maintained the ability to pay for all of the items, return the items, or leave the items at the register when the debit card was declined. While he had removed a price tag, Defendant could have sought assistance to pay the purchase price, returned the glasses, or taken any other action that did not constitute theft. In short, because Defendant was detained before either leaving or attempting to leave the store with unpaid items, there was no probable cause to arrest him for shoplifting.

¶7 After the trial court granted the state's subsequent motion to dismiss the case without prejudice, the state timely appealed the court's grant of Morris's motion to suppress. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A) and 13-4032(6).

Probable Cause

¶8 The state argues police had probable cause to arrest Morris for shoplifting the sunglasses and the items found in the backpack, contending that a person need not attempt to leave a store without paying to commit shoplifting. As to the sunglasses, the state notes that Morris cut off and discarded the price tag, put the glasses on his head, and attempted to pay for other items without paying for the sunglasses, and concludes that "[a] reasonable person, applying common sense, would understand" that Morris was shoplifting them. The state also argues it was reasonable to believe that Morris had committed shoplifting by concealing items in the backpack because the condoms and energy drink were in the cart, Morris was then seen doing something with his backpack, and the items were no longer there.

¶9 The Fourth Amendment to the United States Constitution protects against "unreasonable searches and seizures." State v. Dean , 206 Ariz. 158, ¶ 8, 76 P.3d 429 (2003). Thus, an arrest must be based on probable cause. State v. Superior Court , 149 Ariz. 269, 273, 718 P.2d 171, 175 (1986). In general, a police officer may arrest a person without a warrant only if the officer has probable cause to believe that an offense has been committed and the person to be arrested is the offender. See A.R.S. § 13-3883(A) (codifying probable cause requirement for arrest). Probable cause is "information sufficient to justify belief by a reasonable man that an offense is being or has been committed," State v. Aguilar , 228 Ariz. 401, ¶ 14, 267 P.3d 1193 (App. 2011) (citing Ker v. California , 374 U.S. 23, 35, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) ), and "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity," State v. Sisco , 239 Ariz. 532, ¶ 15, 373 P.3d 549 (2016) (quoting Illinois v. Gates , 462 U.S. 213, 243 n.13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). "Probable cause is something less than the proof needed to convict and something more than suspicions." State v. Aleman , 210 Ariz. 232, ¶ 15, 109 P.3d 571 (App. 2005) (quoting State v. Howard , 163 Ariz. 47, 50, 785 P.2d 1235, 1238 (App. 1989) ). The probable cause standard is objective, not subjective, and whether an officer believed there were sufficient facts to support an arrest is not material. State v. Turner , 142 Ariz. 138, 141, 688 P.2d 1030, 1033 (App. 1984). In applying the standard, we consider whether the collective knowledge of law enforcement officers at the time of arrest was sufficient to establish probable cause. Aleman , 210 Ariz. 232, ¶ 15, 109 P.3d 571.

¶10 The Fourth Amendment requires a court to suppress evidence that is the fruit of an unlawful arrest. State v. DeWitt , 184 Ariz. 464, 470, 910 P.2d 9, 15 (1996) (citing Maryland v. Macon , 472 U.S. 463, 468, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985) ). While in general we review rulings on motions to suppress for abuse of discretion, whether a probable cause determination comports with the Fourth Amendment is a mixed question of law and fact that we review de novo. See State v. Cheatham , 240 Ariz. 1, ¶ 6, 375 P.3d 66 (2016) ; see also Miller v. Fenton , 474 U.S. 104, 113-15, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) (discussing why de novo review is appropriate for certain constitutional mixed questions of fact and law). We defer, however, to the trial court's factual findings, including whether witnesses were credible and whether the inferences drawn by a police officer were reasonable. State v. Teagle , 217 Ariz. 17, ¶ 19, 170 P.3d 266 (App. 2007).

¶11 Arizona's shoplifting statute provides, in relevant part:

A person commits shoplifting if, while in an establishment in which merchandise is displayed for sale, the person knowingly obtains such goods of another with the intent to deprive that person of such goods by:
1. Removing any of the goods from the immediate display or from any other place within the establishment without paying the purchase price; or
....
3. Paying less than the purchase price of the goods by some trick or artifice such as altering, removing, substituting or otherwise disfiguring any label, price tag or marking; or
....
5. Concealment.

A.R.S. § 13-1805(A).

¶12 Here, police had probable cause to believe that Morris had concealed at least one of the store's items in his backpack. While the surveillance video does not clearly show that Morris stowed the purple and white box in his backpack, it disappeared from sight during an eighty-second span that ended with Morris manipulating the backpack. The fact that the box vanished from the cart within such a narrow time span increased the probability that Morris's manipulation of the backpack was related to its disappearance. Moreover, the fact that Morris cut the tag off the sunglasses, discarded the tag, put them on, and failed to include them among the items he presented for purchase strongly suggests that he intended to shoplift, markedly increasing the probability that the disappearance of the box was not innocent. See State v. Sabartinelli , 23 Ariz. App. 436, 440, 533 P.2d 1173 (1975) (probable cause may be based on "furtive gesture coupled with prior reliable information" which "give[s] a criminal connotation" to gesture). Under these circumstances, a belief that Morris had concealed the box was entirely reasonable. See Aguilar , 228 Ariz. 401, ¶ 14, 267 P.3d 1193 ; Sisco , 239 Ariz. 532, ¶ 15, 373 P.3d 549.

¶13 Morris joins the trial court in focusing on the fact that no one actually saw him conceal items in the backpack. But that the officer could not determine with certainty from the surveillance video that Morris was placing the store's items in his backpack did not vitiate probable cause or render the arrest unlawful. See Turner , 142 Ariz. at 141, 688 P.2d at 1033. And although the court found it compelling that no one had verified that Morris had not returned the box to a shelf in light of the fact he had done so with other items, a probable cause determination "does not deal with hard certainties, but with probabilities." State v. Espinosa-Gamez , 139 Ariz. 415, 417, 678 P.2d 1379, 1381 (1984) (quoting Gates , 462 U.S. at 231, 103 S.Ct. 2317 ). Police therefore did not have to eliminate every possible innocent explanation for the disappearance of the box to have probable cause to believe that Morris had concealed it. See State v. Pederson , 102 Ariz. 60, 65, 424 P.2d 810, 815 (1967) (probable cause for arrest does not require officer to "personally verify every bit of information").

¶14 Morris next argues that regardless of any justification for believing he intended to shoplift, he simply had not completed the offense, and therefore there was no probable cause to arrest him for it. Morris asserts that "goods are only 'obtained' once the person passes the point of sale because it is at that point that the ownership interest in the property transfers to [the] customer." See § 13-1805(A) (requiring shoplifting offender to "knowingly obtain[ ]" goods); A.R.S. § 13-1801(A)(10) (defining "[o]btain" as "to bring about or to receive the transfer of any interest in property, whether to a defendant or to another"). Therefore, according to Morris, the customer must pass the point of sale to commit shoplifting under any of the alternatives in § 13-1805(A). Because Morris had not passed the point of sale, he contends police were only permitted to conduct a brief investigatory stop pursuant to Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to address his "arguably suspicious behavior."

¶15 At least for shoplifting by means of concealment under § 13-1805(A)(5), we conclude otherwise: a person need not pass the point of sale to "obtain" concealed goods. The plain language of § 13-1805(A)(5) expressly contemplates a situation where "the person ... obtains ... goods by ... [c]oncealment." See State v. Williams , 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993) (in interpreting statute, language is best and most reliable indicator of meaning). Nothing in § 13-1805(A)(5) suggests that any act other than concealment-such as passing the point of sale-is necessary to obtain concealed goods. We therefore interpret § 13-1805(A)(5) to mean that the crime of shoplifting is complete at the time of concealment.

¶16 The history of the shoplifting statute supports our interpretation. The crime of shoplifting by concealment under § 13-1805(A)(5) derives from common-law larceny, and the elements of the crimes are substantially similar. See Sulavka v. State , 223 Ariz. 208, ¶¶ 13-19, 221 P.3d 1022 (App. 2009). Under the common law, larceny is "the taking of the thing which is the subject of the crime from the possession of the owner into the possession of the thief; and ... an asportation thereof." Id. ¶ 14 (emphasis omitted) (quoting Pass v. State , 34 Ariz. 9, 10, 267 P. 206 (1928) ); see also Asportation , Black's Law Dictionary (10th ed. 2014) ("[t]he act of carrying away or removing"). Removing an item from a store's display and concealing it satisfies larceny's asportation requirement. Sulavka , 223 Ariz. 208, ¶ 17, 221 P.3d 1022. Because asportation of a store's goods can occur only once the goods are possessed, other courts have concluded that larceny is complete when goods are concealed. See State v. Hauck , 190 Neb. 534, 209 N.W.2d 580, 583 (1973) ("The cases indicate that concealing the goods in a fashion sufficient to place them under the complete and exclusive control of the defendant may be sufficient asportation to constitute larceny, no matter what part of the store it occurs in."); Haslem v. State , 391 So.2d 389, 390 (Fla. Dist. Ct. App. 1980) (movement of goods within a store, coupled with concealment, can be sufficient to prove theft). And our interpretation of the current shoplifting by concealment statute is further buttressed by the absence of even the minimal asportation requirement of common-law larceny. See State v. Allen , 1 Ariz. App. 161, 163, 400 P.2d 589 (1965) (prior version of shoplifting statute clearly omits element of asportation).

¶17 Morris nonetheless contends that we should "read into" § 13-1805(A)(5) a requirement that a person must pass the point of sale. As support for this contention, Morris notes that § 13-1805(A)(1)-(3) all explicitly contemplate some deficiency in payment for goods, which, according to Morris, cannot be determined until the person passes the point of sale. He concludes that a point-of-sale requirement should therefore also be read into § 13-1805(A)(4) and (5). While Morris cites various rules of statutory construction in support of this contention, he does not explain why they support it, and we are unaware of any that do. If anything, the absence of payment language in § 13-1805(A)(5) expressly included in § 13-1805(A)(1)-(3) suggests that the absent language should not be read into § 13-1805(A)(5). See State v. Fragozo , 197 Ariz. 220, ¶ 5, 3 P.3d 1140 (App. 2000) (express provision in one statute indicated legislature did not intend provision to apply in another, related statute where provision absent). Moreover, reading such a requirement into § 13-1805(A)(5) would render it superfluous, because § 13-1805(A)(1) provides for guilt when a person passes the point of sale with unpurchased items, whether the items are concealed or not. See Ariz. State Univ. Bd. of Regents v. Ariz. State Ret. Sys. , 242 Ariz. 387, ¶ 7, 396 P.3d 623 (App. 2017) (statutes should be interpreted as to avoid rendering language surplusage).

¶18 Finally, Morris argues that if a customer's concealment of items constitutes shoplifting before passing the point of sale, any shopper who places items in a reusable bag while shopping would be guilty. See § 13-1805(B) (creating presumption that person acted with necessary intent to shoplift if person "[u]ses [a] ... container ... to facilitate the shoplifting"). Morris contends-and we obviously agree-that such a result would be absurd. See State v. Winegardner , 243 Ariz. 482, ¶ 32, 413 P.3d 683 (2018) (Lopez, J., dissenting in part and concurring in the result) (discussing shoppers' implied license to handle goods in retail stores). Morris's argument presumes, however, that any time a customer places an item in a shopping bag such that the item is out of view it must constitute "concealment" under § 13-1805(A)(5). While the word "concealment" can, in some contexts, simply mean removing an item from sight, it can also mean removing an item from notice or hiding it. Concealment , Black's Law Dictionary (10th ed. 2014). A customer who uses a reusable shopping bag to carry his items from the display area to the point of sale is not hiding the fact that he has the store's merchandise in his bag, even if the individual items are not readily visible. We have no trouble distinguishing the conduct of such customers from Morris's conduct here: enclosing some of the store's goods in his own backpack containing his personal effects, in circumstances where he had no need to do so to carry the items within the store, as they were already in his shopping cart.

Disposition

¶19 Because police had probable cause to arrest Morris for shoplifting by concealment under § 13-1805(A)(5), we vacate the trial court's ruling and remand this matter for further proceedings consistent with this decision.

      Because the other box is not distinct in the video, our analysis focuses on the purple and white box.

      While we generally defer to the trial court's factual findings, "[b]ecause the trial court [was] in no better position to evaluate the video than the appellate court, we have conducted an independent review of the video evidence." State v. Sweeney , 224 Ariz. 107, ¶ 12, 227 P.3d 868 (App. 2010).

      Although Sulavka addressed the right to jury trial, its discussion of larceny as the historical antecedent to shoplifting nonetheless supports our analysis.

      We need not decide whether the trial court erred in concluding police lacked probable cause to arrest Morris for shoplifting the non-concealed sunglasses.