Opinion
No. 2 CA-MH 2014-0002-SP
11-14-2014
IN RE PIMA COUNTY MENTAL HEALTH CAUSE NO. A20060008
COUNSEL Barton & Storts, P.C., Tucson By Brick P. Storts, III Counsel for Appellant Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Appellee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c)
Appeal from the Superior Court in Pima County
No. A20060008
The Honorable Richard S. Fields, Judge
AFFIRMED
COUNSEL Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Appellant
Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Appellee
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
¶1 In 2007, Wilfredo Jaramillo was found to be a sexually violent person and was committed to the Arizona Community Protection and Treatment Center (ACPTC) pursuant to Arizona's Sexually Violent Persons Act (SVPA). In re Commitment of Jaramillo (Jaramillo I), 217 Ariz. 460, ¶ 1, 176 P.3d 28, 29 (App. 2008); see also A.R.S. §§ 36-3701 through 36-3717 (SVPA). We affirmed his commitment on appeal. Jaramillo I, 217 Ariz. 460, ¶ 1, 176 P.3d at 29.
¶2 In 2011, Jaramillo petitioned for absolute discharge or, alternatively, requested that his treatment plan be modified. In re Commitment of Jaramillo (Jaramillo II), 229 Ariz. 581, ¶¶ 2-5, 278 P.3d 1284, 1285 (App. 2012). He appealed the trial court's denial of that petition and, we determined that a trial court had no authority under the SVPA to mandate a particular treatment plan. Id. ¶¶ 5, 13.
¶3 In response to the state's filing of its annual report in 2013, Jaramillo filed a request for a hearing, repeating his claim that he was not receiving appropriate treatment at ACPTC and asking that he be referred to Arizona State Hospital (ASH) for treatment. After a hearing, the trial court ordered that Jaramillo remain at ACPTC. Jaramillo did not appeal that ruling, instead filing a petition for writ of habeas corpus, in which he argued ACPTC had failed to make "sincere efforts to treat [his] delusional mental disorder." The trial court dismissed that petition and Jaramillo did not seek review of that ruling.
¶4 After the state's annual report was filed in 2014, Jaramillo requested a mental health evaluation pursuant to § 36-3708(B) and a discharge hearing pursuant to § 36-3714. The court ordered that Dr. Jerry Day evaluate Jaramillo. In his evaluation, Day opined that Jaramillo was a sexually violent person as defined by Arizona law and should not be released into the community. He further opined that Jaramillo would not comply with treatment under a less restrictive program at ACPTC. He asserted, however, that the therapy program at ACPTC could not benefit Jaramillo because it would not address "his delusional system" that causes him to deny responsibility for his crimes. He therefore recommended that Jaramillo be transferred to ASH for treatment of his delusional disorder.
Dr. Day has evaluated Jaramillo four times since 2009 and has consistently recommended that Jaramillo first must be treated for his delusional disorder.
The ACPTC is on the same grounds as ASH. According to Dr. Day, its programs are designed to correct pedophilia, while ASH is concerned with the general treatment of mental illness.
¶5 After a hearing at which Day and Jaramillo testified, Jaramillo asked the trial court to order that he be treated at ASH. The state argued in response that the court lacked the authority to do so and, in any event, that the evidence showed Jaramillo largely refused to participate in treatment—even when he had been placed at ASH some years prior. The trial court concluded that Jaramillo met "the SVP commitment criteria." Without addressing whether it had the authority to order otherwise, the court further ordered that Jaramillo would remain at ACPTC. The court did note it had "serious concerns about ACPTC's apparent reluctance to engage in more direct treatment of the delusional disorder." This appeal followed.
¶6 On appeal, Jaramillo argues the trial court erred in failing to refer him to ASH for treatment of his delusional disorder. He first asserts he has a "substantive due process right to not be subjected to cruel and unusual punishment," and that right has been violated because he "is not being afforded the treatment necessary." Although he did not raise this claim below, he asserts "he has not waived that claim" because he raised it in his previous appeal. See Jaramillo II, 229 Ariz. 581, ¶ 8, 278 P.3d at 1286. We first note that Jaramillo waived a due process argument in his previous appeal by failing to raise it in the trial court. Id. And Jaramillo raising an argument on appeal in a different proceeding does not excuse his failure to raise the claim before the trial court in this proceeding. "[A] party must timely present his legal theories to the trial court so as to give the trial court an opportunity to rule properly." Payne v. Payne, 12 Ariz. App. 434, 435, 471 P.2d 319, 320 (1970). Accordingly, we decline to further address Jaramillo's substantive due process argument. See Jaramillo II, 229 Ariz. 581, ¶ 8, 278 P.3d at 1286.
The Arizona Department of Health Services has filed an amicus curiae brief in this proceeding. In our discretion, we limit our discussion to the issues raised in Jaramillo's opening brief.
¶7 Jaramillo further argues the trial court has statutory authority to place him in ASH pursuant to A.R.S. § 36-3707(B). He, claiming to quote § 36-3707(B)(1), states in his opening brief that the statute provides: "'A court or jury trial clearly having made a determination that the defendant was a sexually violent person pursuant to A.R.S. § 36-3707(B), can commit the defendant to the supervision of the Arizona State Hospital.'" (emphasis deleted).
¶8 Jaramillo misrepresents the text of the statute. Section 36-3707(B)(1) instead provides that the court may "[c]ommit the person to the custody of the department of health services for placement in a licensed facility under the supervision of the superintendent of the Arizona state hospital." The statute is unambiguous and does not specify a particular facility, nor does it give the court the authority to designate a particular facility. See Jaramillo II, 229 Ariz. 581, ¶ 7, 278 P.3d at 1286 ("Where the plain language of the statute is clear, we will not look beyond that language to understand the statute's meaning."). That duty is instead left to the superintendent of the state hospital, who is required by statute to "supervise and direct" the activities of the hospital and "carry[] out the purposes for which the hospital is maintained." A.R.S. § 36-206(A).
We remind counsel that, pursuant to Arizona's Rules of Professional Conduct, a lawyer shall not knowingly "make a false statement of fact or law to a tribunal." ER 3.3(a)(1), Ariz. R. Prof'l Conduct, Ariz. R. Sup. Ct. 42.
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¶9 For the reasons stated, we affirm the trial court's order.