Opinion
No. 1 CA-SA 08-0165
October 2, 2008.
Petition for Special Action from the Mohave County Superior Court, Cause No. CR 2008-0522, The Honorable Richard Weiss, Judge, JURISDICTION ACCEPTED; RELIEF DENIED.
Law Offices of David Michael Cantor, Tempe, By David Michael Cantor, Todd Nolan, Attorneys for Petitioner.
Lake Havasu City Attorney's Office, Phoenix, By Charles F. Yager, Attorneys for Real Party in Interest.
¶ 1 Following a bench trial in Lake Havasu City Municipal Court, James Papazian was found guilty of theft, criminal damage, and assault, all misdemeanors. The magistrate placed Papazian on probation for three years. Papazian thereafter filed a petition for post-conviction relief, in which he argued that the trial court failed to obtain a knowing, voluntary, and intelligent waiver of his right to jury trial. The municipal court denied the petition and Papazian requested review in the Mohave County Superior Court. The superior court concluded that Papazian waived his jury-trial right because he did not demand a trial by jury as required by Arizona Revised Statutes (A.R.S.) section 22-320 (2002). The superior court also stated that it did "not decide whether any conflict exists between a constitutional waiver of a jury trial in a lower court proceeding and the statute requiring an affirmative act." Papazian then filed this petition for special action relief.
¶ 2 The pretrial hearing at which the parties discussed whether there would be a jury trial was not recorded and the parties offer differing interpretations as to whether defense counsel, a criminal law specialist, intended to forego his client's right to a jury trial or simply assumed that no such right existed. Regardless, it is undisputed both that Papazian did not personally waive his right to a jury trial and that he never affirmatively requested that he be tried by a jury.
¶ 3 We accept jurisdiction because "special action is a proper method for determining the existence of the right to a jury trial." Benitez v. Dunevant, 194 Ariz. 224, 225, ¶ 4, 979 P.2d 1017, 1018 (App. 1998), vacated on other grounds by Benitez v. Dunevant, 198 Ariz. 90, 7 P.3d 99 (2000). In addition, the superior court rendered its judgment on appeal, and Papazian therefore lacks any further remedy by direct appeal. See A.R.S. § 22-375(B) (2002); Ariz. R.P. Spec. Act. 1(a). Moreover, jurisdiction is appropriate because the petition presents a pure question of law. See Guthrie v. Jones, 202 Ariz. 273, 274, ¶ 4, 43 P.3d 601, 602 (App. 2002).
DISCUSSION
¶ 4 Papazian asserts that he had a federal and state constitutional right to a jury trial on the misdemeanor theft charge, which was denied him because the trial court failed to obtain a knowing, voluntary, and intelligent waiver of his jury trial right before proceeding with a bench trial. See State v. Butrick, 113 Ariz. 563, 565-66, 558 P.2d 908, 910-11 (1976) (waiver of right to jury trial must be "voluntarily and intelligently made by the accused").
¶ 5 We review de novo whether a particular crime is jury eligible. State v. Le Noble, 216 Ariz. 180, 181, ¶ 8, 164 P.3d 686, 687 (App. 2007). The defendant bears the burden of proving the allegations of fact contained in a petition for post-conviction relief by a preponderance of the evidence. Ariz. R. Crim. P. 32.8(c). ¶ 6 "The right to a jury trial is a fundamental right secured to all persons accused of a crime by the Sixth Amendment of the United States Constitution and, in Arizona, by Article 2, [Sections] 23 and 24 of the Arizona Constitution." Butrick, 113 Ariz. at 565, 558 P.2d at 910. The Sixth Amendment right to a jury trial presumptively does not attach to any criminal offense for which the "maximum authorized period of incarceration" is "six months or less." Blanton v. City of Las Vegas, 489 U.S. 538, 543 (1989). Because Papazian was charged only with misdemeanors and was not exposed to a penalty in excess of six months incarceration for any single offense, the charges against him were presumptively not jury-trial eligible under the Sixth Amendment. However, a defendant may "rebut the [Blanton] presumption by showing that the legislature had `pack[ed] an offense it deems `serious' with onerous penalties that nonetheless do not puncture the 6-month incarceration line.'" Derendal v. Griffith, 209 Ariz. 416, 421, ¶ 16, 104 P.3d 147, 152 (2005) (quoting Blanton, 489 U.S. at 543).
¶ 7 Article 2, Section 24, provides that "[i]n criminal prosecutions, the accused shall have the right to . . . a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed." Because the language in Section 24 is nearly the same as that of the Sixth Amendment, which guarantees the right to jury trial "[i]n all criminal prosecutions," our supreme court has "construed it consistently with the federal constitution to preserve the right to jury trial only for `serious,' as opposed to `petty,' crimes." Derendal, 209 Ariz. at 420, ¶ 13, 104 P.3d at 151. Because the legislature has classified theft of property or services valued at less than one thousand dollars as a misdemeanor punishable by no more than six months incarceration, the theft offense charged against Papazian was presumptively a petty offense for which he was not entitled to a jury trial by Section 24. Id. at 422, ¶ 21, 104 P.3d at 153. Although, under Blanton, a defendant may rebut that presumption by showing the existence of "additional grave consequences" that "reflect a legislative determination that the offense is indeed `serious,'" id., Papazian has not attempted to do so here. Cf. Fushek v. State, 218 Ariz. 285, 294, ¶ 30, 183 P.3d 536, 543 (2008) (holding "that when a special allegation of sexual motivation exposes a defendant to the possibility of sex offender registration" if convicted of charged misdemeanors, the defendant was entitled to trial by jury). Therefore, we conclude that Papazian was not entitled to a jury trial under either the Sixth Amendment or Section 24.
¶ 8 The remaining issue is whether Papazian was nonetheless guaranteed a jury trial by Article 2, Section 23, which provides in relevant part: "The right of trial by jury shall remain inviolate." It is well-settled that Section 23 does not create a substantive right, but rather preserves "the right to jury trial as it existed in Arizona prior to statehood." Derendal, 209 Ariz. at 419, ¶ 8, 104 P.3d at 150.
To determine whether Article 2, Section 23 assures the right to trial by jury, we consider whether a modern crime has a common law antecedent. We regard a jury-eligible, common law offense as an antecedent of a modern statutory offense when the modern offense contains elements comparable to those found in the common law offense.
Id. at 419, ¶ 10, 104 P.3d at 150; see also Le Noble, 216 Ariz. at 182, ¶ 10, 164 P.3d at 688 ("[I]f a crime existed at common law with a right to a jury trial, whether felony or misdemeanor, the right to a jury remains.").
¶ 9 Papazian asserts that, under Derendal, he has a constitutional right to a jury trial because misdemeanor theft "was a crime that was triable to a jury prior to the adoption of the Arizona Constitution." Throughout the course of the post-conviction relief proceedings, and now, before us, the State has agreed with Papazian that the misdemeanor theft offense for which he was tried was a jury-eligible offense at common law. Instead, citing A.R.S. § 22-320, the State argues that Papazian waived his right to jury trial by not affirmatively requesting one. Papazian contends, however, that § 22-320 applies only to a "statutorily available jury trial right" and therefore does not apply to his "constitutional" jury trial right.
The State's concession may be erroneous. Papazian was charged with and convicted of theft of services pursuant to A.R.S. § 13-1802(A)(6) (Supp. 2007). Both parties apparently assume that this offense is the modern equivalent of common-law larceny. However, the common-law offense of larceny did not include the unauthorized use or diversion of intangible personal property such as services or labor. See, e.g., Rudolph J. Gerber, Criminal Law of Arizona, 248 (1978) ("At common law, larceny was the trespass-related taking and asporting of the tangible personal property of another with the intent to deprive the owner permanently of possession.") (Emphasis added.); see also Lund v. Commonweath, 232 S.E.2d 745, 748 (Va. 1977) ("At common law, labor or services could not be the subject of the crime of false pretense because neither time nor services may be taken and carried away."). For purposes of this appeal only, we accept the State's concession. See Fushek, 218 Ariz. at 288 n. 3, ¶ 7, 183 P.3d at 539 n. 3 (noting that the State was bound by its previous concession that defendant's misdemeanor charge was jury eligible).
¶ 10 When Papazian was tried in November 2007, § 22-320 provided:
A. A trial by jury shall be had if demanded by either the state or defendant. Unless the demand is made at least five days before commencement of the trial, a trial by jury shall be deemed waived.
B. Upon demand being made for a jury trial, the justice of the peace or presiding officer of a police court shall issue an order directed to the sheriff of the county, or to any constable, marshal, policeman or member of the court staff to summon the number of qualified persons specified in the order to appear at the time and place therein fixed to serve as jurors in the action. If the required number of jurors do not appear, an additional order or orders may be issued.
Paragraph B was deleted effective January 1, 2008. 2007 Ariz. Sess. Laws, ch. 199, §§ 29, 31.
¶ 11 We cannot agree with Papazian's claim that § 22-320 regulates only jury trial rights created by statute. First, as our supreme court has explained, § 22-320 is procedural in nature and does not itself grant any substantive jury trial right. Goldman v. Kautz, 111 Ariz. 431, 432, 531 P.2d 1138, 1139 (1975) (holding that § 22-320 "must be read as meaning that a trial by jury shall be had if demanded in cases where a jury trial is appropriate") (emphasis added). Second, other than certain driving under the influence offenses, which contain their own waiver requirements, A.R.S. § 28-1381(F) (Supp. 2007) (requiring the court to inform a defendant charged with driving a vehicle under the influence of the right to a jury trial at arraignment); A.R.S. § 5-397(C) (Supp. 2007) (same for motorized watercraft), that have been interpreted as granting a substantive right to a jury trial, Manic v. Dawes, 213 Ariz. 252, 254, ¶ 9, 141 P.3d 732, 734 (App. 2006), we are unaware of any misdemeanor offense for which a defendant has a right to jury trial in justice or municipal court that is not constitutionally based. In effect, Papazian's interpretation of § 22-320 as being limited only to statutorily based rights to a jury trial would render it meaningless because there would be nothing to which it would apply. See State v. Pitts, 178 Ariz. 405, 407, 874 P.2d 962, 964 (1994) ("We presume the legislature did not intend to write a statute that contains a void, meaningless, or futile provision.").
¶ 12 We now consider the question mentioned but not resolved by the superior court: whether the implied waiver provision in § 22-320 is invalid as an unconstitutional limitation on a defendant's common-law right to jury trial as preserved by Article 2, Section 23. The second sentence of § 22-320 provides: "Unless the demand is made at least five days before commencement of the trial, a trial by jury shall be deemed waived." The requirement that a defendant affirmatively request a jury for trials in justice and municipal courts lest the right be deemed to have been waived dates back to the early years of the Arizona Territory, see Laws, Ch. XI, § 583 (1871) ("The defendant shall be entitled, if demanded by him, to a jury trial."), and was in effect when the Arizona Constitution was adopted in 1910. Ariz. Pen. Code 1901, § 1191 ("A trial by jury shall be had if demanded by either the territory or the defendant; but unless such demand is made before the commencement of the trial, a trial by jury shall be deemed waived."). Because the jury-trial right afforded to those charged with misdemeanors in justice and municipal courts was conditioned upon the defendant affirmatively requesting a jury trial, § 22-320 does not impose any greater burden on the right to a jury trial than existed prior to statehood. Thus, § 22-320 does not violate Section 23.
¶ 13 In reaching this conclusion, we are aware that a defendant charged with a jury-eligible misdemeanor in superior court cannot be denied a jury trial in the absence of an explicit waiver. Le Noble, 216 Ariz. at 183-84, ¶¶ 16-17, 169 P.3d at 689-90 (finding that waiver of a jury trial by a defendant charged with a jury-eligible misdemeanor in superior court must be on the record and be knowing, voluntary, and intelligent, citing Arizona Rule of Criminal Procedure 18.1(b)(1), b(2)). However, as we previously explained in reaching a similar conclusion in Benitez, § 22-320 establishes a specific procedure for justice and municipal courts, which has differed since territorial days from that established for superior courts:
In the former, a jury trial was deemed waived if not demanded before trial; in the latter, a jury trial waiver had to be expressed by both parties, on the record, in open court [citing Ariz. Pen. Code 1901, § 895]. Because these different procedures were incorporated into the constitution without substantive change, we conclude that a reasonable basis exists for having different jury waiver procedures in inferior and superior courts.
194 Ariz. at 228, ¶ 20, 979 P.2d at 1021; see also Phoenix City Prosecutor's Office v. Ybarra, 218 Ariz. 232, 233, ¶ 9, 182 P.3d 1166, 1167 (2008) (recognizing different procedures govern the right to a jury trial in justice court and superior court); State v. Flourney ex rel. County of Coconino, 193 Ariz. 150, 151, ¶ 6, 971 P.2d 197, 198 (App. 1998) (same).
CONCLUSION
¶ 14 In summary, A.R.S. § 22-320 does not lessen the right to jury trial preserved by Article 2, Section 23 of the Arizona Constitution. Because Papazian never demanded a jury trial, the municipal court did not err by proceeding with a bench trial.
Accordingly, we accept jurisdiction but deny relief.
______________________________________ PHILIP HALL, Judge
CONCURRING:
______________________________________ LAWRENCE F. WINTHROP, Presiding Judge
______________________________________ ANN A. SCOTT TIMMER, Judge