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FlLEno MARZIZUUZ

NQEL K. DESSA|NT PREME OOUR'I’

IN THE SUPREME COURT OF THE STATE OF ARIZONA

En Banc c

STATE OF ARIZONA, Arizona Supreme Court No. CR-01-0338-PR Respondent, Court of Appeals

Division Two

No. 2 CA-CR 00-0549 PR

V.

MELISSA JO REYES, Pima County Superior Court

No. CR 55826

Petitioner.

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MEMORANDUM DECISION (N ot for Publication; Rule 1 1 1, Rules of the Supreme Court)

Petition for Review from the Superior Court in Pima County The Honorable C1ark W. Munger, Judge Relief Granted; Remanded with Instructions

Memorandurn Decision of the Court of Appeals, Division Two flled June 26, 2001 Vacated

Janet Napolitano, Attorney General Phoenix

By: Randall M. Howe, Chief Counsel

Criminal Appeals Section

and Eric J. Olsson, Assistant Attomey General Tucson Attorneys for State of Arizona Susan A. Kettlewell, Pima County Public Defender Tucson

By: Rebecca A. McLean, Deputy Public Defender Attomeys for Melissa Jo Reyes

FELDMAN, Justice 111 Relying on McDonaldv. Thomas, 198 An`z. 590, 12 P.3d l 194 (App. 2000), the court of appeals affirmed the trial judge’ s order denying Melissa Jo Reyes’ petition for post-conviction relief`. The court of appeals held that denial of the Board of Executive Clemency‘s unanimous clemency recommendation need not be signed by the Govemor or attested by the Secretary of State. We have jurisdiction under article VI, § 5(1) and (4) of the Arizona Constitution. 112 Defendant was convicted by a jury of: one count of armed robbery, a class 2, dangerous, non-repetitive felony; one count of aggravated assault with a deadly weapon/dangerous instrument, a class 3, dangerous, non-repetitive felony; and three counts of kidnapping, class 2, dangerous, non- repetitive felonies. The trial judge sentenced her to concurrent, mitigated sentences on all counts, the longest being seven years, with fifty days’ credit. The judge included in his sentencing order a special order under A.R.S. § l 3 -603(L) setting forth the reasons for his conclusion that Defendant’ s sentence was clearly excessive, as follows: (l) her young age; (2) her lack of any felony convictions; (3) her steady employment; (4) the support of her family and friends; (5) her responsibility for her child and two stepchi1dren; and (6) the victim’ s testimony that Defendant was the least aggressive of the perpetrators. 1[3 On August 11, 1998, the Board of Executive Clemency notified Govemor Hull that the Board unanimously approved Defendant’s application for commutation and recommended that her sentence be commuted to two years. Among the reasons for the Board’s recommendation was Defendant’ s minimal participation in the underlying crimes committed by her accomplice. The Govemor’ s office returned the documents to the Board. In the space for the Govemor’ s decision was handwritten "denied." The document was signed by George Weisz on the line designated for "Govemor or Representa- tive" and hand-dated "l 1-9-98." There is no attestation by the Secretary of State. 1[4 On October 10, 2000, Defendant filed a Rule 32 petition contending she was being held past the two-year commuted sentence, which she alleged went into effect because the Govemor’ s denial was not attested and was therefore “ineffective to revoke the Board’s recommendation." On

November 22, 2000, the trial judge denied relief, finding that attestation was not required because

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the Govemor’ s denial of a Board-recommended commutation is not an official act "within the meaning of A.R.S. § 41-101(B)." Thus, denial of the commutation was effective and Defendant’s seven-year sentence remained in effect.

115

and held that denial of the Board’s unanimous recommendation for clemency is an official act that

In an opinion filed on February 1 9, 2002, we vacated the court of appeals’ in McDonald

must be signed by the Governor and attested by the Secretary of State within the ninety-day time period provided by statute. 116

Secretary of State. Defendant’s commuted sentence expired in October 1999 at the latest. The court

Denial of clemency to Defendant was not signed by Governor Hull nor attested by the

of appeals’ memorandum decision is therefore vacated. The case is remanded to the trial court with

instructions that the state be ordered to release Defendant from prison forthwith.

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._ j / sT'Ayfr/G. FELUNTAN, Justice

CONCURRING:

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CHARLES E. JOI\l'ES, Chief Justice

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RU . McGREGOR, Vice

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TTI’oMAS A. ZLA@J, Justice

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