Opinion
No. 2 CA-JV 2013-0057
04-14-2014
IN RE E.M.
Barbara LaWall, Pima County Attorney By Dale Cardy, Deputy County Attorney, Tucson Counsel for State The Hopkins Law Office, P.C., Tucson By Cedric Martin Hopkins Counsel for Minor
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Civ. App. P. 28(c); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Pima County
No. J18485601
The Honorable Catherine Woods, Judge
AFFIRMED
COUNSEL
Barbara LaWall, Pima County Attorney
By Dale Cardy, Deputy County Attorney, Tucson
Counsel for State
The Hopkins Law Office, P.C., Tucson
By Cedric Martin Hopkins
Counsel for Minor
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 E.M. appeals from the juvenile court's May 2013 order adjudicating him delinquent on two separate petitions, revoking his probation, and committing him to the Arizona Department of Juvenile Corrections. He claims (1) his "right to a speedy adjudication hearing" was violated because a hearing was not completed within forty-five days of his advisory hearing on a delinquency petition first filed in October 2012, alleging offenses committed on October 16, 2012; (2) the state engaged in prosecutorial misconduct by making misrepresentations to the court in support of its motion to dismiss that petition without prejudice; and (3) he was exposed to double jeopardy when the state re-filed the petition in May 2013. He also claims the court abused its discretion in denying his motion to dismiss an amended delinquency petition alleging offenses committed in February 2013. We affirm the court's order for the following reasons.
Discussion
¶2 In this appeal, E. challenges delinquency and probation revocation adjudications occurring after he was placed on juvenile intensive probation on September 27, 2012. Rather than present the background of these proceedings in a single chronology, we identify those facts relevant to the issues raised on appeal in the context of the separate adjudications of delinquency.
October 2012 Charges
¶3 On October 10, 2012, the state filed a petition to revoke E.'s probation on the ground he had absconded from his placement and his whereabouts were unknown. On October 17, E. was apprehended, and the state filed a delinquency petition charging him with second-degree burglary, trafficking in stolen property, and two counts of weapons violations, all alleged to have occurred on October 16. After hearing argument about the deadline for an adjudication hearing, the juvenile court scheduled the adjudication to commence with a thirty-minute hearing on November 29, to be followed by a three-hour hearing on December 28.
¶4 E. then filed an "Objection to Setting Trial Beyond 45 Days/Motion to Accelerate Trial Date," in which he argued the juvenile court was required to complete the delinquency adjudication by December 3—forty-five days after the October 18 advisory hearing—and that it was insufficient, pursuant to Rule 29(B)(1), Ariz. R. P. Juv. Ct., for the court to merely commence the hearing by that date. On November 29, the court commenced the adjudication hearing, denied E.'s motion, and confirmed that the hearing would continue as scheduled on December 28.
On December 21, 2012, E. petitioned this court for special action relief, seeking dismissal of the delinquency petition because an adjudication had not been completed within forty-five days of the advisory hearing. We declined jurisdiction of the special action and our supreme court subsequently denied review.
¶5 On December 28, the state informed the juvenile court that key witnesses "did not show up" and moved to dismiss the delinquency petition without prejudice. When the court inquired whether the subpoenaed witnesses had included law enforcement officers, the state said law enforcement witnesses were present, but lay witnesses were not. The state also told the court it would not be pursuing an order to show cause for the witnesses who had failed to appear. The court granted the state's motion and dismissed the petition without prejudice. On January 7, 2013, the court also dismissed, without prejudice, the petition to revoke E.'s probation, and ordered E.'s release from detention.
E. was subsequently returned to detention during the second week in February. See infra ¶ 17.
¶6 On April 2, 2013, the state filed a new delinquency petition in which it reasserted the October 2012 charges, as well as a petition to revoke probation based on those allegations. E. filed a motion to dismiss the petitions on April 9, asserting the reinstatement of the October charges resulted in "a continuing violation of his right to a speedy trial under Rule 29(B)(1)." Although not entirely clear, it appears he argued the state should not have been permitted to refile its petition because the October 2012 petition, based on the same allegations, should have been dismissed with prejudice in December 2012. At a hearing on April 10, E. entered denials to the October 2012 charges, as alleged in the state's April 2 petition, and the juvenile court scheduled a delinquency adjudication hearing for April 23, with a hearing on E.'s motion to dismiss that petition to follow in May.
¶7 On April 23, the juvenile court adjudicated E. delinquent on charges of burglary, trafficking in stolen property, and possession of a firearm by a minor, three of the four counts alleged, and also found he had violated his conditions of probation. At the May 10 post-adjudication hearing on E.'s motion to dismiss, E. relied on the testimony of lay witnesses at the recent adjudication hearing to allege the state had misled the court in December 2012 when it sought to dismiss the October 2012 charges without prejudice. According to E., the state had allowed the court to infer that the case could not proceed because subpoenaed witnesses had failed to appear, which, E. alleged, "was not true." In particular, he noted that A.G., one of the victims of the October 2012 charges, testified he had not been served with a subpoena to appear at the hearing that had been scheduled for December 28, 2012, and had understood his attendance at the hearing was optional.
¶8 The juvenile court denied E.'s motion to dismiss, finding his right to a timely adjudication had not been violated. Citing Rule 18, Ariz. R. P. Juv. Ct., the court also stated that, had speedy adjudication concerns been implicated, it would not have found the interests of justice required a dismissal with prejudice even had it known the state had not subpoenaed A.G. See Ariz. R. P. Juv. Ct. 18(C) (dismissal for violation of time limits shall be "without prejudice unless the court finds that the interests of justice require that the dismissal be with prejudice").
Rule 29(B)(1) and the Right to a Speedy Adjudication
¶9 Relying on Rule 29(B)(1), E. first argues the juvenile court violated his right to a completed delinquency adjudication hearing within forty-five days of his advisory hearing. The state contends, as it did below, that the rule requires only that an adjudication hearing be commenced—rather than completed—before the forty-five day deadline and that this requirement was met when the hearing commenced on November 29. After the court denied E.'s motion to accelerate the hearing, he filed a petition for special action relief in this court, and we declined jurisdiction. In this review on appeal, we decline to consider whether the court correctly construed the requirements of Rule 29(B)(1), because E. has failed to explain why, under these circumstances, the rule applies at all.
The parties also disagreed about the date of the forty-five day deadline.
¶10 Rule 29(B)(1) provides, "A[ delinquency] adjudication hearing for a detained juvenile shall take place within forty-five (45) days of the date of the advisory hearing unless a motion for transfer or petition to revoke probation has been filed." E. does not dispute that he had been detained during the last quarter of 2012 pursuant to a petition to revoke his probation as well as a delinquency petition. Because a "petition to revoke probation ha[d] been filed," these proceedings fall within an express exception to the rule's requirement. Although E. has quoted the provision in full, he has failed to acknowledge the relevance of the exception in his case or to develop any argument that the exception does not apply to foreclose his claim. Accordingly, we decline to address his argument that the juvenile court violated Rule 29(B)(1). See City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 88, 181 P.3d 219, 242 (App. 2008) (appellate court will not address issues or arguments waived by party's failure to develop them adequately); see also Ariz. R. Civ. App. P. 13(a)(6) (argument "shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on"); Ariz. R. P. Juv. Ct. 106(A) (Rule 13, Ariz. R. Civ. App. P., applies to juvenile appeals).
E.'s counsel in the proceedings below informed the court that he had been unaware, when he filed his motion to accelerate the adjudication hearing, that a petition to revoke E.'s probation had been filed. But Rule 29(B)(1)'s express exception was never addressed.
¶11 Similarly, although E. additionally asserts, in conclusory fashion, that the juvenile court "violated [his] due process rights under the Sixth and Fourteenth Amendments to the United States Constitution, article II, § 24 of the Arizona Constitution," he provides no analysis to support such a claim. See State v. Parker, 231 Ariz. 391, ¶ 9, 296 P.3d 54, 61 (2013) ("no bright line rule" for constitutional right to speedy trial; "[i]n evaluating such claims, courts weigh (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the right to a speedy trial, and (4) the prejudice to the defendant"), citing Barker v. Wingo, 407 U.S. 514, 530 (1972); see also In re Cochise Cnty. Juv. Action No. DL89-00020, 161 Ariz. 154, 156, 776 P.2d 1080, 1082 (App. 1989) (applying Barker analysis to juvenile delinquency proceedings). Any claim that his right to a speedy adjudication was violated is therefore waived. See State v. Moody, 208 Ariz. 424, n.9, 94 P.3d 1119, 1147 n.9 (2004) ("Merely mentioning an argument is not enough . . . .").
Prosecutorial Misconduct and Double Jeopardy
¶12 Relying on Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984), E. maintains the state engaged in prosecutorial misconduct on December 28, 2012, when it moved to dismiss the October 2012 charges without prejudice, and that this misconduct precluded his adjudication on the same charges in April 2013. We disagree.
¶13 "The right not to be twice placed in jeopardy of life or limb for the same offense, guaranteed by the Fifth Amendment to the Constitution of the United States, is applicable to the states through the Fourteenth Amendment." State v. Soloman, 125 Ariz. 18, 21, 607 P.2d 1, 4 (1980). "Jeopardy attaches as soon as the jury is impaneled and sworn," McLaughlin v. Fahringer, 150 Ariz. 274, 277, 723 P.2d 92, 95 (1986), or, "in a nonjury trial[,] when the first witness has been sworn," State v. Elias, 111 Ariz. 195, 196, 526 P.2d 734, 735 (1974). Double jeopardy principles apply to juvenile delinquency adjudications. See In re Maricopa Cnty. Juv. Action No. J-83341-S, 119 Ariz. 178, 181, 580 P.2d 10, 13 (App. 1978).
¶14 In Pool, our supreme court announced an exception to the "general rule" that, "if the defendant successfully moves for or consents to a mistrial, retrial is not barred on double jeopardy grounds." State v. Minnitt, 203 Ariz. 431, ¶¶ 28-29, 55 P.3d 774, 780-81 (2002). Specifically, the court in Pool "held that retrial is barred when the prosecutor engages in improper conduct that is not merely the result of legal error or negligence, but constitutes intentional conduct that the prosecutor 'knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal [] and the conduct causes prejudice to the defendant which cannot be cured by means short of a mistrial.'" Id. ¶ 29, quoting Pool, 139 Ariz. at 108-09, 677 P.2d at 271-72 (alteration in Minnitt).
¶15 Pool is inapposite for several reasons. Most critically, unlike Pool, which involved a mistrial declared after a jury had been seated and had received evidence, the prosecutor in E.'s case sought a dismissal without prejudice before any witness had been sworn. Accordingly, jeopardy never attached in the delinquency adjudication hearing scheduled for November and December 2012, and double jeopardy principles were not implicated by the petition's dismissal. See Elias, 111 Ariz. at 196, 526 P.2d at 735; see also Serfass v. United States, 420 U.S. 377, 388 (1975) (in nonjury trial, "jeopardy attaches when the court begins to hear evidence").
¶16 E. also appears to suggest the prosecutor's statements at the December 2012 hearing provide an independent basis for reversal of the May 2013 adjudication. However, "[t]o prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor's misconduct 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" State v. Hughes, 193 Ariz. 72, ¶ 26, 969 P.2d 1184, 1191 (1998), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Prosecutorial misconduct "is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial." Pool, 139 Ariz. at 108-09, 677 P.2d at 271-72. E. has not shown the prosecutor's representations at the December 2012 hearing constituted "misconduct that is so egregious that it raises concerns over the integrity and fundamental fairness of the trial itself," rather than "simple prosecutorial error, such as an isolated misstatement." Minnitt, 203 Ariz. 431, ¶ 30, 55 P.3d at 781. Nor has he provided any reason he was denied a fair hearing as a result of those remarks. See id. Accordingly, we find no basis to reverse E.'s delinquency adjudication on the October 12 charges.
February 2013 Charges
¶17 E. had been released from detention on January 7, 2013, after the delinquency and probation revocation petitions filed in October 2012 were dismissed without prejudice. In February, he was detained on a new delinquency petition alleging he had committed misdemeanor theft on February 9, 2013.
¶18 E. entered a denial to the allegation and, on March 11, the state amended the petition to add a felony count of trafficking in stolen property. E. moved to dismiss the amended petition with prejudice, arguing the amendment was an act of "prosecutorial vindictiveness" intended to punish him for exercising his right to an adjudication. On April 4, the court denied the motion, finding no actual or presumptive vindictiveness in the state's amendment, but granted the state's motion to dismiss the petition without prejudice.
The state's motion to dismiss does not appear in the record on review.
¶19 In May 2013, after the juvenile court had adjudicated E. delinquent on the October 2012 charges, the state filed a new petition alleging the amended charges, including the felony charge of trafficking in stolen property. Based on an agreement between the parties, E. admitted committing misdemeanor theft, and the trafficking allegation was dismissed with prejudice.
See supra ¶ 7.
Motion to Dismiss for Prosecutorial Vindictiveness
¶20 On appeal, E. challenges the juvenile court's March 2013 denial of his motion to dismiss the amended charges with prejudice, in which he had alleged his claim of prosecutorial vindictiveness. Although the denial of a motion to dismiss "itself [is] not appealable, the denial of such a motion could be reversible error upon which a case could be reversed." State v. Anderson, 9 Ariz. App. 42, 43, 449 P.2d 59, 60 (App. 1969); see also Nataros v. Superior Court, 113 Ariz. 498, 499, 557 P.2d 1055, 1056 (1976) (special action review warranted due to "unlikely possibility that the denial of the motion [to dismiss] might be found to be reversible error on appeal").
¶21 "[T]he Constitution's due process guarantees prevent prosecutors from punishing defendants for exercising their protected legal rights by subsequently subjecting them to more severe charges." State v. Mieg, 225 Ariz. 445, ¶ 10, 239 P.3d 1258, 1260 (App. 2010). Ordinarily, "[w]e review rulings on motions to dismiss for vindictive prosecution for an abuse of discretion." Id. ¶ 9. But in this case, E. did not renew his challenge to the amended charges when the state reasserted them—including the felony trafficking allegation— in the new petition it filed in May; instead, he entered an admission to the petition's allegation of misdemeanor theft in exchange for the state's dismissal with prejudice of the felony trafficking allegation.
¶22 Although the state does not raise the issue, under these circumstances we conclude E. has forfeited appellate review of his claim of prosecutorial vindictiveness for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). And E. has not suggested how he may have been prejudiced in defending against the amended charges—as they were alleged in the new delinquency petition filed in May—when he admitted the misdemeanor charge and the felony trafficking charge was dismissed with prejudice. See id. ¶ 20; cf. State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (concluding argument waived because defendant "d[id] not argue the alleged error was fundamental"); State v. Caperon, 151 Ariz. 426, 428, 728 P.2d 296, 298 (App. 1986) (finding "no evidence of prosecutorial punishment or retaliation in the plea-bargaining process so long as appellant remained free to accept or reject the offer"); State v. Webb, 140 Ariz. 321, 323, 681 P.2d 473, 475 (App. 1984) (suggesting claim of prosecutorial vindictiveness forfeited by guilty plea); State v. Moreno, 134 Ariz. 199, 200, 655 P.2d 23, 24 (App. 1982) (valid guilty plea waives the "right to assert on appeal all nonjurisdictional defenses, errors and defects occurring prior to the plea proceedings"), disapproved on other grounds by State ex rel. Dean v. Dolny, 161 Ariz. 297, 778 P.2d 1193 (1989). Accordingly, we do not address this claim further.
In Blackledge v. Perry, the Supreme Court reversed a defendant's felony conviction, even though based on his guilty plea, finding the indictment "pose[d] a realistic likelihood of 'vindictiveness'" when sought only after Perry had appealed his misdemeanor conviction based on the same conduct. 417 U.S. 21, 27, 29-30 (1974). Thus, the Court identified an exception to the general rule that guilty pleas "foreclose direct inquiry into the merits of claimed antecedent constitutional violations," Tollett v. Henderson, 411 U.S. 258, 266 (1973), stating that "[w]here the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty," Menna v. New York, 423 U.S. 61, 62 (1975) (per curiam), citing Blackledge, 417 U.S. at 30. But this case does not involve a re-trial after a conviction, as in Perry, or double jeopardy issues, as in Menna. Nor has E. been convicted of the felony trafficking charge he challenges on the ground of vindictive prosecution. Moreover, although Arizona courts have not applied Tollett to an admission to a delinquency petition, "we see no difference that justifies a [different] policy" with respect to juveniles. In re Giovani M., 97 Cal. Rptr. 2d 319, 321-22 (Cal. Ct. App. 2000).
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Disposition
¶23 The juvenile court's adjudications of delinquency and disposition order are affirmed.