Opinion
No. 1 CA-CR 18-0736
05-02-2019
STATE OF ARIZONA, Appellee, v. JUSTIN MEAD COBB, Appellant.
COUNSEL Maricopa County Attorney's Office, Phoenix By Daniel Strange Counsel for Appellee Michael L. Freeman, Attorney at Law, Scottsdale By Michael L. Freeman Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. CR2014-155929-002
The Honorable Terri L. Clarke, Judge Pro Tempore
JURISDICTION ACCEPTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Daniel Strange
Counsel for Appellee
Michael L. Freeman, Attorney at Law, Scottsdale
By Michael L. Freeman
Counsel for Appellant
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge James P. Beene joined.
CATTANI, Judge:
¶1 Justin Mead Cobb seeks review of the superior court's order denying his motion to designate his class 6 undesignated felony conviction as a misdemeanor. For reasons that follow, we accept jurisdiction over this matter as a special action, but deny relief.
FACTS AND PROCEDURAL BACKGROUND
¶2 In early 2015, Cobb pleaded guilty to possession of drug paraphernalia as a class 6 undesignated felony. The superior court suspended sentence and imposed 18 months' unsupervised probation.
¶3 In August 2018, Cobb filed a motion to designate the offense a misdemeanor, noting that he had been discharged from probation two years earlier and had satisfied all probation-related monetary and non-monetary obligations. The State took no formal position on the motion, but noted that Cobb had six felony charges pending against him and provided the cause number for each. The superior court denied Cobb's motion to designate without prejudice, leaving the offense undesignated pending resolution of the new charges. The court expressly granted Cobb leave to reassert the motion should the pending charges be resolved without a finding of guilt or conviction.
¶4 Cobb timely filed a notice of appeal.
DISCUSSION
I. Appellate Jurisdiction.
¶5 As a preliminary matter, this court lacks appellate jurisdiction over Cobb's appeal. An order finally designating an open-ended offense as a felony is appealable as a post-judgment order affecting a party's substantial rights (even if the underlying conviction and sentence were entered pursuant to a plea agreement). A.R.S. § 13-4033(A)(3); State v. Delgarito, 189 Ariz. 58, 59 (App. 1997). But here, the superior court has not
yet rendered a final decision on designation and instead has simply deferred consideration until after Cobb's pending charges are resolved, leaving in place the circumstances established pursuant to Cobb's plea agreement. Cf. A.R.S. § 13-4033(B) (prohibiting appeal from a judgment or sentence entered pursuant to a plea agreement). Such an order is not appealable and may be challenged only by special action. State v. Soriano, 217 Ariz. 476, 478, ¶ 8 (App. 2008). Nevertheless, because Cobb would otherwise be deprived of appellate review of the decision, we exercise our discretion to treat this appeal as a special action and accept jurisdiction. See A.R.S. § 12-120.21(A)(4); Ariz. R.P. Spec. Act. 1(a).
II. Designation of the Offense.
¶6 Under A.R.S. § 13-604(A), the superior court has discretion to designate a non-dangerous class 6 felony offense as a class 1 misdemeanor if the court concludes felony designation would be too harsh given the "nature and circumstances of the crime" and the "history and character of the defendant."
¶7 Cobb first argues the court had no discretion to deny his motion because the parties' stipulation in the plea agreement that the "offense may not be designated a misdemeanor unless and until the defendant successfully completes probation" established an entitlement to misdemeanor designation upon successful completion of probation. But that stipulation established only eligibility for, not entitlement to, misdemeanor designation, so the superior retained discretion to consider designation in light of the factors described in § 13-604(A).
¶8 Cobb next argues that the superior court erred by relying on matters outside the record—the new charges—to justify denial of his motion. But the superior court is authorized to take judicial notice of its own records. Ariz. R. Evid. 201(b); In re Sabino R., 198 Ariz. 424, 425, ¶ 4 (App. 2000). And here, the State raised the new charges (including cause numbers and alleged offenses) in its response to the motion, giving Cobb an opportunity to oppose or explain the new information.
¶9 Finally, Cobb argues that the superior court wrongfully considered charges arising after he was discharged from probation. But A.R.S. § 13-604(A) directs the court to consider the "history and character" of the defendant, which may include conduct after completion of probation but before the designation hearing. See Soriano, 217 Ariz. at 480-81, ¶ 14. And contrary to Cobb's argument that the court violated his presumption of innocence by considering the new charges, the court did not presume his
guilt but rather deferred a decision on whether to designate the offense as a misdemeanor until after his guilt or innocence on the new charges is resolved. See id. at 481, ¶ 15. Accordingly, the superior court did not abuse its discretion in resolving Cobb's motion to designate.
CONCLUSION
¶10 We accept jurisdiction but deny relief.