## Facts

- In 1974, Eric M. Mageary was convicted of rape and sentenced to 25 years to life in prison.
- Beginning in 1982, when Mageary first became eligible for parole, the Arizona Board of Pardons and Paroles repeatedly denied parole.
- The Board granted Mageary parole in 1989, but revoked it within a year for a parole violation; after that revocation, the Board continued to deny parole until 1993.
- Before a 1984 parole hearing, the Board mailed a notice letter to the victim’s last known address, but the letter was returned as undeliverable.
- After the letter was returned, neither the Board nor the prosecutor made further efforts to notify the victim of later parole or release proceedings.
- The victim never filed a request for notice of post-sentencing proceedings.
- In 1993, the Board denied parole but ordered Mageary released to the Department of Corrections’ home arrest program.
- After the victim learned of the home-arrest release, she submitted a letter opposing release; the Board was notified of the letter but declined to hold a hearing.
- The State of Arizona, through Coconino County Attorney Terence C. Hance acting on the victim’s behalf, filed a special action in the Arizona Court of Appeals seeking to set aside the home-arrest release order and to require a new Board proceeding that included the victim’s participation.

## Issues

1. Whether a crime victim may obtain an order setting aside a Board of Pardons and Paroles home-arrest release decision for lack of victim participation when the victim did not request notice of the release proceeding.
2. Whether the State’s failure to notify the victim of her rights under Arizona’s Victims’ Bill of Rights makes the victim’s failure to request notice non-dispositive, requiring the release order to be vacated.

## Decision

- The Arizona Court of Appeals accepted special action jurisdiction.
- The court set aside (vacated) the Board’s order releasing Mageary to home arrest.
- The court directed the Board to conduct a reexamination proceeding conducted in compliance with Arizona statutes implementing the Victims’ Bill of Rights.
- The court held that, because the State failed to notify the victim of her rights, the victim’s failure to request notice did not defeat relief, and the release order could not stand.

## Legal Principles

- Arizona’s Victims’ Bill of Rights and implementing statutes provide victims enforceable rights to notice and participation in post-sentencing release-related proceedings.
- A statutory scheme that allows a victim to request ongoing notice presumes the State has first informed the victim that the rights exist and how to exercise them.
- When the State does not notify the victim of victims’ rights, the victim’s failure to request notice is not treated as a waiver that validates a release decision made without victim participation.
- A Board decision releasing an inmate to home arrest is a release decision that triggers victims’ rights protections requiring notice and an opportunity for victim participation as provided by law.
- The appropriate remedy for a victims’ rights violation in a release determination is to set aside the release order and require a new Board proceeding that includes victim participation, not for the court to decide whether the inmate should be released.

## Conclusion

In *State ex rel Hance v. Arizona Board of Pardons and Paroles*, the Arizona Court of Appeals granted special action relief and vacated the Board’s home-arrest release order because the State had not notified the victim of her victims’ rights; as a result, the victim’s failure to request notice did not bar relief, and the Board was required to hold a new reexamination proceeding consistent with the governing victims’ rights provisions.


State ex rel Hance v. Arizona Board of Pardons and Paroles, 875 P.2d 824 (1993)