The Arizona Supreme Court has ruled that the Arizona Court of Appeals erred when it ruled that a Phoenix woman responsible for the death of her newborn daughter in 2001 cannot challenge part of her sentence.
Demistres Robertson entered into a plea deal in connection to the November 2001 death of her 10-day-old daughter. It was found that the infant died as a result of the use of crack cocaine in the family’s apartment.
Robertson, then 22 and with two other young children, admitted smoking crack cocaine throughout her pregnancy. She was pregnant again when taken into custody in August 2002 and charged with first-degree murder. If the case had gone to trial she faced a sentence of life in prison followed by up to 28 years.
Instead, Robertson pleaded guilty to manslaughter and reckless child abuse. Per the terms of the deal, she was sentenced in October 2003 to serve 10 years in state prison for manslaughter followed by lifetime probation for the child abuse charge.
With credit for 602 days spent in jail pending the outcome of her case, Robertson was released from the Arizona Department of Correction in August 2010 to begin her term of probation.
Court records show that within a few years Robertson ran afoul of the conditions of probation and was brought back to Maricopa County Superior Court in 2014 to address a number of positive drug tests. She had also apparently given birth to two additional children.
Robertson, now in her early 40s, appeared in court several times over the next three years and three times she left with an order that reinstated her to probation. One time she was required to serve six-months in the county jail.
However, by the summer of 2017, a Judicial Commissioner had enough and on July 12, 2017 he sent Robertson back to prison for 3.5-years on the original child abuse charge. It was the maximum sentence available due to the old plea deal.
Following the new prison sentence, Robertson challenged the legality of that old plea deal. She argued that the manslaughter charge involved the same criminal act upon the same victim as the reckless child abuse charge.
As such, the two sentences should have been ordered to be served concurrently (at the same time) rather than back-to-back, Robertson argued, citing state law.
The Arizona Court of Appeals – Division One ruled in April 2019 that it would not review Robertson’s argument as she “invited any error” in sentencing by entering into a plea deal with a stipulated sentence provision.
“The invited error doctrine prevents a party from injecting error into the record and then profiting from it on appeal,” the opinion states. “A party’s stipulation to an error precludes the party from asserting that error on appeal.”
Robertson completed her sentence on the child abuse charge in August 2019 and was released from prison. But her legal challenge continued up to the Arizona Supreme Court, which ruled last month that the court of appeals should have reviewed Robertson’s case to see if she was the victim of “an illegal” sentence, even if she had agreed to it.
“We conclude that the court misapplied the (invited error) doctrine as its decision conflicts with invited error jurisprudence from our Court and the court of appeals,” the justices ruled. “The Arizona court of appeals has held, consistent with our cases, that the invited error doctrine only applies when the facts show the party urging the error initiated, or at least actively defended, the error rather than passively acquiescing in it.”
The supreme court justices, in their 5-0 opinion, also held that the court of appeals’ 2019 decision is “inconsistent with Arizona law concerning illegal sentences.” The opinion noted that Arizona Revised Statute 13-4037(A) “expressly requires this Court to correct an illegal sentence and its terms do not exempt sentences imposed pursuant to stipulated plea agreements.”
As a result, Robertson’s case is being sent back to the court of appeals to consider the merits of her challenge to the legality of the child abuse sentence.
Robertson may have already completed her sentence, but a ruling by the appellate court that the original court needs to correct her sentence could have implications if Robertson faces new criminal charges in the future.