IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
TAD PRY, Appellant.
No. 1 CA-CR 23-0371
FILED 01-09-2025
Appeal from the Superior Court in Maricopa County
No. CR1992-000337
The Honorable Jennifer E. Green, Judge
AFFIRMED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Christine A. Davis, Quinton S. Gregory
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Kristen Reller
Counsel for Appellant
STATE v. PRY
Opinion of the Court
OPINION
Judge Angela K. Paton delivered the opinion of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Anni Hill Foster joined.
P A T O N, Judge:
¶1 Tad Pry appeals the superior court’s grant of a lifetime no-contact injunction prohibiting him from contacting the victim of crimes he
was convicted of in 1992. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Pry pled guilty to multiple counts of attempted sexual
conduct with a minor in 1992. He was sentenced to thirty years in prison
and lifetime probation that same year. Pry’s probation included a term
prohibiting him from contacting the victim.
¶3 Pry was released from prison in December 2021. In
September 2022, the legislature enacted Arizona Revised Statutes (“A.R.S.”)
Section 13-719, which, as relevant here, allows a victim to petition the court
for an injunction prohibiting the defendant from contacting the victim for
the duration of the defendant’s life. In December 2022, the victim petitioned
for an injunction under Section 13-719. The State supported the victim’s
petition. Pry objected to the petition and argued that granting the
injunction against him would be an ex post facto violation because Section
13-719 was not in effect at the time of his sentencing. The superior court
granted the petition and issued the requested injunction, finding that it did
not violate ex post facto.
¶4 Pry timely appealed. We have jurisdiction under Sections 12-
120.21(A)(1) and 13-4033(A)(3).
DISCUSSION
¶5 Pry contends that Section 13-719 is a punitive statute, such
that applying it to him retroactively violates the ex post facto clauses of the
Arizona and federal constitutions. He asks us to reverse the superior
court’s grant of the victim’s petition for a lifetime no-contact injunction and
deny the injunction on this basis.
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STATE v. PRY
Opinion of the Court
¶6 We requested supplemental briefing from the parties on
whether this issue is ripe for adjudication given that the injunction does not
subject Pry to additional harm because his lifetime probation already
prohibits contact with the victim. Both the State and Pry responded that
the issue is ripe because each of the prohibitions against victim contact carry
separate potential consequences, as well as procedures and burdens of
proof. Pry has not violated the injunction, and thus addressing this issue
solely based on any potential future liability is arguably too speculative for
us to address. See Fann v. State, 251 Ariz. 425, 431, ¶ 11 (2021) (“The ripeness
doctrine prevents a court from rendering a premature judgment or opinion
on a situation that may never occur.”) (quoting Winkle v. City of Tucson,
190
Ariz. 413, 415 (1997)). Even so, the imposition of the injunction is ripe
because Pry had 20 days from the superior court’s order to appeal the
decision and would otherwise forfeit the opportunity to do so. Ariz. R.
Crim. P. 31.2(a)(2)(B); see A.R.S. § 13-4033(A)(3). In other words, because
this appeal is Pry’s only opportunity to challenge the imposition of the no-contact injunction, it is ripe for our review.
¶7 We review an order granting an injunction for an abuse of
discretion; a court abuses its discretion when it misapplies the law. Shinn
v. Ariz. Bd. of Exec. Clemency,
254 Ariz. 255, 259, ¶ 13 (2022). We review
constitutional questions and questions of law de novo. See State v. Henry,
224 Ariz. 164, 166, ¶ 5 (App. 2010).
¶8 The Arizona and federal Ex Post Facto Clauses provide: “No
. . . ex-post-facto law . . . shall ever be enacted,” Ariz. Const. art. 2, § 25, and
“No State shall . . . pass any . . . ex post facto Law,” U.S. Const. art. 1, § 10.
“Every law that changes the punishment, and inflicts a greater punishment,
than the law annexed to the crime, when committed” violates ex post facto.
Calder v. Bull,
3 U.S. 386, 390 (1798); Peugh v. United States,
569 U.S. 530, 532-
33 (2013); see also State v. Cocio,
147 Ariz. 277, 284 (1985) (“[T]he Arizona
Legislature may not enact a law which imposes any additional or increased
penalty for a crime after its commission.”). Because the language of both
the Arizona and federal provisions is materially the same, we generally
interpret them as having the same scope, and Arizona courts have
“consistently followed federal precedent in this area.” State v. Noble,
171
Ariz. 171, 173 (1992). As a result, we rely on both Arizona and U.S. Supreme
Court ex post facto precedent in conducting our analysis here.
¶9 To start, we must first determine whether Section 13-719 is
retroactive.
Id. at 174. A statute applies retroactively when it “attaches new
legal consequences to events completed before its enactment.” State v.
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STATE v. PRY
Opinion of the Court
Aguilar, 218 Ariz. 25, 34, ¶ 33 (App. 2008). In Arizona, “[n]o statute is
retroactive unless expressly declared therein.” A.R.S. § 1-244.
¶10 Section 13-7191 generally provides that “the court shall issue
an injunction that prohibits the defendant from contacting the victim” if the
defendant is convicted of certain offenses and the injunction is requested
by the victim or prosecutor at the time of sentencing. A.R.S. § 13-719(A).
But as relevant here, “[i]f the victim did not request an injunction at the time
of sentencing pursuant to subsection A of this section or the sentencing
occurred before September 24, 2022, the victim may submit a petition to the
court requesting an injunction against a defendant who was sentenced for
an offense listed in subsection A of this section,” which includes serious and
dangerous offenses, for example, first degree murder, sexual conduct with
a minor, or arson. A.R.S. § 13-719(D). Pry does not dispute that his
convictions are included in subsection A. Because subsection D allows
victims to request and receive lifetime no-contact injunctions against
defendants sentenced before September 24, 2022, by its express terms, the
statute is retroactive.
I. The intent of Section 13-719 is regulatory.
¶11 Having determined Section 13-719 is retroactive, we next
consider whether it is punitive—meaning it creates criminal penalties and
is subject to ex post facto analysis—or regulatory—meaning it is civil and
nonpunitive and not subject to ex post facto analysis. Ariz. Dep’t of Pub. Safety
v. Superior Ct. (Falcone),
190 Ariz. 490, 494 (App. 1997) (citing Noble,
171 Ariz.
at 173-75). A punitive statute violates the ex post facto clause and may not
be applied retroactively; a regulatory statute does not violate ex post facto
and therefore may be applied retroactively.
Id.
¶12 Arizona courts apply the “intent/effects test” to determine
whether a statute is punitive or regulatory. See State v. Trujillo,
248 Ariz.
473, 477, ¶ 19 (2020) (stating our supreme court looks first to the
intent/effects test to determine whether a statute is civil or criminal) (citing
Smith v. Doe,
538 U.S. 84, 92 (2003)). Because Pry challenges Section 13-719
on ex post facto grounds, he “bears the burden of demonstrating by ‘the
clearest proof’ that the law is in fact punitive.” State v. Haverstick,
234 Ariz.
1 Although this statute was amended after the relevant date, the revisions
are immaterial to the disposition of this appeal, and we cite to the current
version of the statute.
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STATE v. PRY
Opinion of the Court
161, 167, ¶ 11 (App. 2014) (quoting Smith, 538 U.S. at 92) (internal quotation
marks omitted).
¶13 “The intent of the legislature is singularly important” in
determining whether a statute is punitive or regulatory. Falcone, 190 Ariz.
at 495. To determine legislative intent, we examine the text and structure
of a statute. Trujillo,
248 Ariz. at 478, ¶ 26 (citing Smith,
538 U.S. at 92). If
the legislature intended to impose a criminal punishment, ex post facto
applies and our inquiry ends. Id. at 477, ¶ 20. But if the legislature intended
to enact a civil and nonpunitive regulatory scheme, we “examine whether
the statutory scheme is so punitive either in purpose or effect as to negate
[the legislature’s] intention to deem it civil.” Id. (quoting Smith,
538 U.S. at
92).
¶14 Section 13-719’s no-contact restriction is not additional
punishment for past activity; instead, it “comes about as a relevant incident
to a regulation of a present situation.” Noble,
171 Ariz. at 175 (quoting De
Veau v. Braisted,
363 U.S. 144, 160 (1960)) (alteration in Noble). Where a
legislative restriction is part of the State’s power to regulate public health
and safety, it will be considered evidence of its “intent to exercise that
regulatory power, and not a purpose to add to the punishment.” Flemming
v. Nestor,
363 U.S. 603, 616 (1960); see Martin v. Reinstein,
195 Ariz. 293, 316,
¶ 74 (App. 1999) (“[P]rotecting the public from sex offenders is a paramount
governmental interest.”).
¶15 An injunction is a civil equitable remedy—not a criminal
punishment. See Jurju v. Ile,
255 Ariz. 558, 562, ¶ 18 (App. 2023). Section
13-719 allows a victim to request the injunction without any involvement
from the State—the entity charged with punishing the defendant. Pry
admits that no-contact injunctions “serve the purpose of protecting victims
and giving them peace of mind.” The intent is not to further punish
convicted offenders but to protect their victims. We therefore conclude that
Section 13-719’s purpose is to protect victims, which is a nonpunitive,
regulatory purpose. See Falcone, 190 Ariz. at 495 (holding that legislative
purpose of enacting the sex offender community notification was to protect
the community, not to punish offenders).
¶16 Pry contends that the codification of Section 13-719 in the
criminal code proves its punitive intent. We recognize that its inclusion in
Title 13 arguably reflects the legislature’s intent to classify this statute as
punitive. This fact, however, is not determinative. Trujillo,
248 Ariz. at 479,
¶ 29. Our supreme court has affirmed Arizona’s sex offender registration
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STATE v. PRY
Opinion of the Court
system as regulatory despite its codification in Title 13. Id. at ¶ 30. There is
no reason to view this statute differently.
¶17 We conclude that the legislature’s purpose in enacting Section
13-719 was to create a civil regulatory scheme to protect victims of
dangerous or serious offenses.
II. The effects of Section 13-719 do not outweigh its regulatory intent.
¶18 Because we find the legislature intended Section 13-719 to be
nonpunitive, we next must consider whether there are any punitive effects
that outweigh its regulatory purpose. See Noble, 171 Ariz. at 175; see also
Smith,
538 U.S. at 92. To do so, we consider the enumerated factors in
Kennedy v. Mendoza-Martinez,
372 U.S. 144, 168-69 (1963), as this court
applied in Haverstick,
234 Ariz. at 167, ¶ 15: (1) “[w]hether the sanction
involves an affirmative disability or restraint,” (2) “whether it has
historically been regarded as a punishment,” (3) “whether it comes into
play only on a finding of scienter,” (4) “whether its operation will promote
the traditional aims of punishment—retribution and deterrence,” (5)
“whether the behavior to which it applies is already a crime,” (6) “whether
an alternative purpose to which it may rationally be connected is assignable
for it,” and (7) “whether it appears excessive in relation to the alternative
purpose assigned.”
¶19 These factors are designed to apply in various constitutional
contexts, so they are “neither exhaustive nor dispositive,” Falcone, 190 Ariz.
at 496 (quoting United States v. Ward,
448 U.S. 242, 249 (1980)), but are
“useful guideposts,” Hudson v. United States,
522 U.S. 93, 99 (1997).
¶20 First, the injunction does not place an affirmative restraint or
disability on Pry. Imprisonment is the paradigmatic affirmative disability
or restraint. See Hudson,
522 U.S. at 104. Section 13-719 does not impose
imprisonment or any similar physical restraint. Nor does it impose
mandatory conditions, require reporting to a probation officer, or require
obtaining approval before changing jobs or residences. See Trujillo,
248
Ariz. at 481, ¶ 41. Although Pry argues that the injunction is identical to a
standard term of probation, which is punishment, the requirements of the
injunction are not monitored by the State in the same way.
¶21 Second, a lifetime injunction prohibiting contact with a victim
has not been historically regarded as punishment. See Smith,
538 U.S. at 97
(noting that “sex offender registration and notification statutes are of fairly
recent origin,” suggesting they do “not involve a traditional means of
punishing.”).
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STATE v. PRY
Opinion of the Court
¶22 Third, the injunction does not come into play only on a
finding of scienter. Scienter is a culpable mental state which is “the degree
of knowledge necessary to make a person criminally responsible for his or
her acts.” Ruan v. United States, 597 U.S. 450, 458 (2022). Section 13-719
requires the issuance of an injunction upon request by the victim “without
regard to the offender’s state of mind.” See Haverstick,
234 Ariz. at 168,
¶ 17. The lifetime no-contact order does not “affix culpability for prior
criminal conduct,” but protects victims. See Kansas v. Hendricks,
521 U.S.
346, 362 (1997); Falcone, 190 Ariz. at 497 (stating that under Arizona’s
registration statutes, the “offender is not labeled as more culpable than he
was before”). Thus, the lifetime injunction, like the lifetime sex offender
registration requirement addressed in Smith, is “reasonably related to the
danger of recidivism,” and therefore “is consistent with the regulatory
objective” of regulating the offender’s future conduct. See Smith,
538 U.S.
at 90, 98, 102.
¶23 Fourth, the injunction may promote deterrence, a traditional
goal of punishment, but “[a]ny number of governmental programs might
deter crime without imposing punishment.” Smith,
538 U.S. at 102. Indeed,
if the “mere presence of a deterrent purpose” transformed a civil regulatory
scheme into criminal penalties, then the “[g]overnment’s ability to engage
in effective regulation” would be severely undermined.
Id.
¶24 Fifth, the behavior to which the injunction applies is not
already a crime. Contacting a victim is not in and of itself criminal activity.
See Falcone, 190 Ariz. at 498 (“The behavior that triggers the communitynotification statute is the offender’s release from prison and subsequent
relocation within Arizona, neither of which is a crime.”).
¶25 Sixth, the injunction has a rational connection to a
nonpunitive purpose, protecting victims, a purpose Pry acknowledges.
This is the “[m]ost significant” factor to determine that the statute’s effects
are not punitive. United States v. Ursery,
518 U.S. 267, 290 (1996).
¶26 Seventh, the effects of the injunction are not excessive with
respect to the nonpunitive intent. In determining whether any punitive
effects of a statute are excessive in relation to its nonpunitive intent, we note
that “[a] statute is not deemed punitive simply because it lacks a close or
perfect fit with the nonpunitive aims it seeks to advance.” Smith,
538 U.S.
at 103. We need not determine that “the legislature has made the best
choice possible to address the problem it seeks to remedy.”
Id. at 105.
Instead we consider “whether the regulatory means chosen are reasonable
in light of the nonpunitive objective.”
Id. Prohibiting a convicted offender
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STATE v. PRY
Opinion of the Court
of a serious or dangerous crime from contacting the victim of that crime is
reasonable to achieve the nonpunitive objective of victim protection. The
lifetime duration of the prohibition does not change this calculus.
¶27 Weighing the above factors, we conclude that the effects of
Section 13-719 are not punitive. The most significant factor in this case is
our determination that, as noted, the overriding purpose is to protect
victims, a purpose unrelated to punishing a convicted offender for past
offenses.
¶28 In sum, Pry has not shown the “clearest proof” required that
the lifetime injunction imposed by Section 13-719 is punitive in its intent or
effects. Haverstick, 234 Ariz. at 167, ¶ 11. We therefore reject his argument
that the statute violates the ex post facto clauses of the Arizona or federal
constitutions.
CONCLUSION
¶29 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: JR
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