Cabanas v. Pineda

246 Ariz. 12

433 P.3d 560

Felipe Petrone CABANAS, Petitioner,

v.The Honorable Susanna PINEDA, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, Respondent Judge,State of Arizona, ex rel. William Montgomery, Maricopa County Attorney, Real Party in Interest.

No. 1 CA-SA 18-0099

No. 1 CA-SA 18-0119 (Consolidated)

Court of Appeals of Arizona, Division 1.

FILED November 29, 2018

Maricopa County Public Defender’s Office, Phoenix, By Tennie B. Martin, Kevin D. Heade, Nicholaus Podsiadlik, Co-Counsel for Petitioner

Vikki M. Liles, Attorney at Law, Phoenix, By Vikki M. Liles, Co-Counsel for Petitioner

Maricopa County Attorney’s Office, Phoenix, By Karen Kemper, Counsel for Real Party in Interest

Presiding Judge Maria Elena Cruz delivered the opinion of the Court, in which Judge Jennifer B. Campbell and Judge James P. Beene joined.

CRUZ, Judge:

¶ 1 Felipe Petrone Cabanas seeks special action review of the superior court’s rulings granting reconstruction of his 2002 sentencing proceeding and ordering him to disclose his mental health and medical records to the State as part of his post-conviction relief proceedings. We hold that Cabanas’ defense of transient immaturity does not, by itself, place his mental health at issue such that the State is entitled to have access to his medical and mental health records over his objection.

¶ 2 We accept jurisdiction and grant relief, vacating the superior court’s disclosure order. We also separately hold that no reconstruction hearing is necessary because the court’s determination as to whether Cabanas’ offense was the result of transient immaturity or irreparable corruption must be made based on evidence admitted at an upcoming evidentiary hearing, and not based on consideration of the previous sentencing judge’s thought processes outside of his written orders. Accordingly, we vacate the order setting such hearing.

FACTS AND PROCEDURAL HISTORY

¶ 3 In 2001, Cabanas pled guilty to first-degree murder for the killing of a police officer. Cabanas was 17 years, 8 months old at the time of the murder. During sentencing, the court considered Cabanas’ age, level of intelligence, maturity, and other mitigating factors in a twenty-nine-page special verdict. The court specifically considered Cabanas' "juvenile impulsivity." Dr. Barillas, the psychologist that evaluated Cabanas prior to sentencing, presented mitigating evidence that Cabanas acted with "significant impulsivity." Determining that mitigation compelled against imposition of the death penalty, the court imposed a term of natural life in prison without the possibility of release.

¶ 4 In 2013, Cabanas initiated post-conviction relief proceedings in light of Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The superior court denied Cabanas’ request on the grounds that his natural-life sentence was not mandatory, "but instead was imposed after the sentencing court had considered [Cabanas’] age and other mitigating factors." State v. Cabanas , 2017 WL 3599595, at *1, ¶ 5 (Ariz. App. Aug. 22, 2017) (mem. decision). This court reversed, stating Cabanas was "sentenced when there was no requirement that a sentencing court distinguish between crimes that reflect ‘irreparable corruption’ as opposed to ‘transient immaturity of youth,’ " and thus, "[a]lthough the sentencing court considered [his] age in deciding on a sentence of natural life, that is insufficient to deny relief ... based on Miller ." Id. at *2, ¶ 8. As a result, we held Cabanas was "entitled to an evidentiary hearing to allow him the opportunity to establish that his crime reflected transient immaturity" and remanded for further proceedings consistent with our decision. Id. at ¶¶ 8-9.

I. Disclosure of Medical Records

¶ 5 At an October 2017 status conference, Cabanas stated his intention to call himself, Dr. Barillas, and Professor Steinberg as witnesses, and further stated that Steinberg would testify in general regarding the transient immaturity aspect of the juvenile brain. Claiming the determination of transient immaturity requires analysis of the individual’s current mental state compared to their juvenile evaluation, Cabanas stated he would call Dr. Barillas to testify to Cabanas’ present-day maturity level to prove his crime reflected transient immaturity. Under this anticipated presentation of the defense’s case, Dr. Barillas was set to testify specifically about Cabanas, while Steinberg would testify about general characteristics associated with juvenile impulsivity.

¶ 6 In January 2018, the assigned judge recused herself, Cabanas’ counsel withdrew, and the Public Defender’s Office was appointed. After Cabanas stated he would not call Dr. Barillas to testify but instead would perform a nationwide search to identify an appropriate mental health expert, the State requested the court order production of Cabanas’ medical and mental health records for the State’s expert to review. The court granted the State’s request for disclosure of all Arizona Department of Corrections and/or Corizon¹ reports dated February 20, 2002 through March 1, 2018, and all Maricopa County Correctional Health Services records from March 27, 1999 through March 4, 2002; June 25, 2015 through July 7, 2015; and January 16, 2018 through March 1, 2018. Cabanas objected, arguing he had not noticed a mental health defense nor designated an expert; the court overruled the objection, but allowed Cabanas to submit redacted records to the court for review. The court did not establish any parameters for such redactions. Cabanas again challenged the order but submitted unredacted copies of the records for the court to review in camera . The court denied Cabanas’ challenge and ordered all the documents produced.

¶ 7 Cabanas now seeks special action review from the superior court’s order compelling disclosure of his medical and mental health records.

II. Reconstruction Hearing

¶ 8 Also discussed at the October 19 conference was the State’s request for a reconstruction hearing on remand from this court’s mandate in Cabanas , 2017 WL 3599595. In support of its request, the State stated that because it was unable to access the transcript of the 2002 sentencing, it wanted to call the sentencing judge to testify to reconstruct the record. The State argued that while the record contained the special verdict, there was no record of the original sentencing proceeding, and that if no transcript or court reporter notes were located, the court should reconstruct the original sentencing to complete the record. The State argued the record needed to be reconstructed because if Cabanas were to meet his burden under Arizona Rule of Criminal Procedure ("Rule") 32.8(c), the State would then have the burden of proving that the constitutional error was harmless beyond a reasonable doubt.

¶ 9 After argument on November 16, the court ordered a hearing to reconstruct portions of the record not included within the sentencing judge’s twenty-nine-page special verdict, which could not otherwise be recreated by way of affidavit or declaration. The State filed a motion re-urging its request to have the original sentencing judge testify as a witness during a reconstruction hearing and the evidentiary hearing.

¶ 10 At the hearing on the State’s motion, the State indicated it intended to call the sentencing judge to reconstruct the record as well as to rebut Cabanas’ purported constitutional violation during the evidentiary hearing. The State intended to inquire whether the sentencing judge considered Cabanas’ youth as a chronological fact or whether the judge considered the crime as being the product of youthful conduct. Previously-assigned counsel did not object and the court granted the State’s request to call the former sentencing judge as a witness for the purpose of reconstructing the sentencing record, as well as to provide testimony at the subsequent evidentiary hearing; however, before allowing the judge to testify, the court directed the parties to research whether the State could delve into the mental processes of the sentencing judge.

¶ 11 New defense counsel was appointed in January 2018 and moved to vacate the reconstruction hearing. Through April 2018, the State continued to argue that "[i]n order to address [transient immaturity], the trial court will need to look at what was considered at the original sentencing." The court heard renewed argument on April 16, 2018, denied Cabanas’ motion to vacate the reconstruction hearing, and ordered a three-day evidentiary hearing set for the beginning of July 2018 to "absorb, evaluate, and determine whether or not there was transient immaturity," and to reconstruct the evidence provided at the time of sentencing. Cabanas also seeks special action relief from this ruling.

DISCUSSION

I. Special Action Jurisdiction

¶ 12 Special action jurisdiction is proper when a party has no "equally plain, speedy, and adequate remedy by appeal." Ariz. R.P. Spec. Act. 1(a). We have discretion to accept special action jurisdiction in cases "involving a matter of first impression, statewide significance, or pure questions of law." State ex rel. Pennartz v. Olcavage , 200 Ariz. 582, 585, ¶ 8, 30 P.3d 649, 652 (App. 2001).

A. Disclosure of Medical Records

¶ 13 Cabanas argues compelled disclosure of all mental health and medical records, before he has placed his mental state at issue, violates his Fifth Amendment right against self-incrimination and Arizona’s statutory psychologist-patient privilege. Ariz. Rev. Stat. ("A.R.S.") § 32-2085(A). The State claims Cabanas necessarily placed his mental health at issue by challenging his sentence on the grounds that his actions reflected "transient immaturity" and not "irreparable corruption." This case thus involves both a matter of first impression and a pure question of law. See Ulibarri v. Superior Court , 184 Ariz. 382, 384, 909 P.2d 449, 451 (App. 1995) ("Existence of a privilege is a question of law, and a special action...