State v. Sutherland

1

STATE OF ARIZONA, Respondent, v. NATHAN SUTHERLAND, Petitioner.

No. 1 CA-CR 23-0007 PRPC

Court of Appeals of Arizona, First Division

August 1, 2023

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Petition for Review from the Superior Court in Maricopa County No. CR2019-103725-001 The Honorable Margaret LaBianca Judge

REVIEW GRANTED; RELIEF DENIED

Maricopa County Attorney's Office, Robert A. Walsh Counsel for Respondent

Apfel Law Group, Seth M. Apfel Counsel for Petitioner

Chief Judge David B. Gass, Judge Brian Y. Furuya, and Judge Andrew M. Jacobs delivered the decision of the court.

MEMORANDUM DECISION

PER CURIAM

¶1 Petitioner Nathan Dorceus Sutherland petitions this court for review from the dismissal of his petition for post-conviction relief. We have considered the petition for review. We grant review and deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 The victim in this matter is a quadriplegic with limited brain function living in a long-term care medical facility. The victim cannot talk, move, swallow, or breathe without assistance. On December 29, 2018, staff discovered the victim giving birth to a baby. No one knew the victim had been pregnant. Sutherland was an overnight nurse at the same facility. Police obtained a search warrant for Sutherland's DNA, which proved him to be the father of the victim's baby.

¶3 The State charged Sutherland with sexual assault (count 1) and vulnerable adult abuse (count 2). Sutherland pled guilty to both charges. Following the terms of the plea agreement the superior court sentenced Sutherland to a slightly aggravated term of 10 years in prison on count 1, followed by lifetime probation on count 2. See Arizona Revised Statutes ("A.R.S.") § 13-1406(B). Sutherland filed a timely notice for postconviction relief. The superior court summarily dismissed the petition, and this petition for review follows.

DISCUSSION

¶4 Sutherland raises the same issues on review he raised below. We review the superior court's ruling on a petition for post-conviction relief for an abuse of discretion. State v. Reed, 252 Ariz. 236, 238 ¶ 6 (App. 2021).

I. Sutherland's Consecutive Sentences Are Not an Impermissible Double Punishment.

¶5 Sutherland argues his consecutive sentences for counts 1 and 2 violate A.R.S. § 13-116's prohibition against double punishment. See Ariz. R. Crim. P. 33.1(c).

¶6 "An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent." A.R.S. § 13-116. Imposing a probation tail after completion of a prison sentence constitutes consecutive sentences for § 13-116 purposes. State v. Watson, 248 Ariz. 208, 218 ¶ 32 (App. 2020).

¶7 Courts apply the three-pronged "identical elements test to determine whether the evidence shows a single act, which requires concurrent sentences, or multiple acts, which permit consecutive sentences." State v. Khoshbin, 166 Ariz. 570, 575 (App. 1990) (citing State v. Gordon, 161 Ariz. 308 (1989)). First, the court must subtract the evidence necessary to convict on the "ultimate charge" and determine whether enough evidence remains to "satisf[y] the elements of the other crime." Gordon, 161 Ariz. at 315. Second, the court must determine "whether . . . it was factually impossible to commit the ultimate crime without also committing the secondary crime." Id. Finally, the court must "consider whether the defendant's conduct in committing the [secondary] crime caused the victim to suffer an additional risk of harm beyond that inherent in the ultimate crime." Id.

¶8 Here, sexual assault is the ultimate charge and vulnerable adult abuse the secondary. Sutherland committed sexual assault by intentionally engaging in sexual intercourse with the victim and without the victim's consent. See A.R.S. § 13-1406(A). This occurred sometime between February 1, 2018 and April 30, 2018. Sutherland committed vulnerable adult abuse by intentionally or knowingly "having the care or custody of a . . . vulnerable adult, who causes or permits the person or health of the . . . vulnerable adult to be injured or who causes or permits a . . . vulnerable adult to be placed in a situation where the person or health of the . . . vulnerable adult is endangered." A.R.S. § 13-3623(B)(1). This occurred sometime between February 1, 2018 and December 29, 2018 when the defendant did not inform anyone the victim was pregnant. After eliminating the elements of sexual assault, the elements of vulnerable adult abuse remain. Contrary to Sutherland's assertions, non-consensual intercourse is not an element of vulnerable adult abuse.

¶9 Further, Sutherland insists we may only consider the factual basis submitted during the change of plea because at the change of plea hearing, defense counsel read the factual basis for count 2 as occurring during the same date range as count 1. But statute and caselaw instruct us differently. See Ariz. R. Crim. P. 17.3(b) ("[T]he court may consider the defendant's statements, police reports, certified transcripts of grand jury proceedings, or other satisfactory information."); State v. Sodders, 130 Ariz. 23, 25 (1981) ("The factual basis may be determined from the extended record which may include presentence report, preliminary hearing transcripts, statements of the defendant, proceedings before the grand jury, and other sources."); State v. Salinas, 181 Ariz. 104, 106 (1994) (court may consider the statements of prosecutors); State v. Brooks, 156 Ariz. 529, 530 (App. 1988) ("[T]he trial court need not determine the factual basis solely from a defendant's statements at the change of plea hearing."). The indictment, plea agreement, presentence report, police reports, and other statements made by the court during the change of plea and sentencing give strong evidence that count 2 occurred between February 1, 2018 and December 29, 2018. Salinas, 181 Ariz. at 106. Thus, the acts constituting sexual assault and abuse of a vulnerable adult were not committed on the same occasion; Sutherland could not have failed to report the victim's pregnancy at the same time he committed the sexual assault. The acts were committed independently of each other over different time spans.

¶10 Next, it was factually possible to commit sexual assault without also committing vulnerable adult abuse. After the assault, staff noticed the victim's abdomen expanding but could not detect the cause. Sutherland had months when he could have come forward. Cf. State v. Stock, 220 Ariz. 507, 510 ¶ 17 (App. 2009) ("[I]f Defendant had ceased efforts to escape and to avoid being taken into custody, he would have been charged only with unlawful flight."). Instead, Sutherland's silence after the assault endangered the victim's health because she did not receive prenatal care.

¶11 Finally, Sutherland caused the victim to suffer additional risk of harm beyond the harm of sexual assault when he did not notify staff about the victim's pregnancy. His actions denied the victim prenatal care. Staff did not discover the pregnancy until the victim was already bleeding and in the final stages of giving birth. The risks of untreated pregnancy and a partially unattended birth are not harms inherent in sexual assault.

¶12 Sutherland argues no evidence shows he knew about the pregnancy, and therefore, he did not expose the victim to additional risk of harm. To the extent Sutherland challenges the factual basis for count 2, the claim is waived. Sutherland failed to raise the issue before the superior court, and we will not consider issues raised for the first time on review. See Ariz. R. Crim. P. 33.16(c)(2)(B) (petition for review must contain issues decided by the superior court that defendant is presenting for review); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (court of appeals does not address issues raised for the first time in a petition for review). Beyond waiver, Sutherland misrepresents the record. According to police reports attached to his petition for post-conviction relief, Sutherland oversaw the victim's care from February until December 2018 and had access to the victim throughout that time. Sutherland's argument is also unsubstantiated as he does not attach an affidavit alleging any facts contrary to the record. See Ariz. R. Crim. P. 33.7(e) ("The defendant must attach to the petition any affidavits, records, or other evidence currently available to the defendant supporting the allegations in the petition.").

¶13 The superior court did not abuse its discretion by imposing consecutive sentences.

II. Sutherland's Aggravated Sentence is Lawful.

¶14 Next, Sutherland argues his aggravated sentence is illegal because the superior court did not expressly cite a statutory aggravating factor, only catch-all aggravators. See Ariz. R. Crim. P. 33.1(c).

¶15 The trier of fact must find at least one aggravating factor for the defendant to be exposed to a sentencing range beyond the presumptive sentence. State v. Martinez, 210 Ariz. 578, 584 ¶ 21 (2005); A.R.S. § 13-701(C). Section 13-701(D) lists twenty-seven aggravating factors, including a catchall aggravator. A.R.S. § 13-701(D)(27). However, "a court cannot aggravate a defendant's sentence beyond the presumptive sentence based solely on aggravating factors that fall within the catch-all category." State v. Emedi, 251 Ariz. 78, 85 ¶ 26 (App. 2021).

¶16 The superior court found three aggravating circumstances: (1) the victim was a vulnerable adult, a quadriplegic, unable to communicate; (2) the defendant was in a position of trust as a nurse and caregiver to the victim; and (3) the victim suffered from the sexual assault, pregnancy, and not being treated for either event. When it sentenced...