Opinion
No. 1 CA-CR13-0570
09-18-2014
STATE of ARIZONA, Appellant, v. DAVID RUBEN CONTRERAS, Appellee.
COUNSEL Maricopa County Attorney's Office, Phoenix By E. Catherine Leisch Counsel for Appellant Maricopa County Public Defender's Office, Phoenix By Joseph L. Hermes Counsel for Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2013-002090-001
The Honorable Robert L. Gottsfield, Judge
REVERSED AND REMANDED
COUNSEL Maricopa County Attorney's Office, Phoenix
By E. Catherine Leisch
Counsel for Appellant
Maricopa County Public Defender's Office, Phoenix
By Joseph L. Hermes
Counsel for Appellee
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined. NORRIS, Judge:
¶1 While jailed on unrelated charges, appellee David Contreras, allegedly threw a mop bucket, damaging a jail window. Although jail officials finished their investigation just a few days after the incident, a grand jury did not indict Contreras for destruction or injury to a public jail, a class 5 felony, until almost 13 months later. The superior court granted Contreras's motion to dismiss the indictment with prejudice for pre-indictment delay. The State now appeals, arguing the superior court abused its discretion in dismissing the indictment, see State v. Medina, 190 Ariz. 418, 420, 949 P.2d 507, 509 (App. 1997) ("We review an order granting a motion to dismiss criminal charges for an abuse of discretion . . . ."), because Contreras failed to show that, first, the State had intentionally delayed proceedings to gain a tactical advantage over him or to harass him, and second, the delay had actually prejudiced him. See State v. Broughton, 156 Ariz. 394, 397, 752 P.2d 483, 486 (1988).
¶2 Reviewing the facts in the light most favorable to sustaining the dismissal, see State v. Chavez, 208 Ariz. 606, 607, ¶ 2, 96 P.3d 1093, 1094 (App. 2004), and even assuming Contreras established the State intentionally delayed the proceedings to gain a tactical advantage or to harass him, we nevertheless agree with the State that Contreras failed to show the pre-indictment delay caused any actual prejudice to his case as a matter of law. See generally Broughton, 156 Ariz. at 398, 752 P.2d at 487 (proof of actual prejudice "must be definite and not speculative"); State v. Torres, 116 Ariz. 377, 379, 569 P.2d 807, 809 (1977) ("There must be a showing of actual prejudice to the defendant's case." (emphasis added)).
¶3 First, as the State contends, although Contreras argued the delay prejudiced him because he could no longer remember who else was present during the incident, diminished recollection caused by the passing of time "does not, by itself, constitute the type of substantial prejudice warranting a finding of a due process violation." Broughton, 156 Ariz. at 398, 752 P.2d at 487. Moreover, at oral argument on the motion, Contreras admitted he could discover who was present by looking at the jail logs.
¶4 Second, as the State contends, although Contreras argued that during the delay the State had lost or deleted a surveillance video of the incident, at oral argument on the motion, the State represented the video existed and had been disclosed to Contreras. Although defense counsel responded she had not seen the video, she did not present the superior court with any evidence the video in fact had been destroyed.
¶5 Third, as the State contends, although Contreras argued he had turned 18 by the time the grand jury indicted him and therefore lost the opportunity to be tried as a juvenile, the possibility of prosecution for felony offenses in adult court is not the type of prejudice that would impair Contreras's ability to defend himself. In re Arnulfo G., 205 Ariz. 389, 392, ¶ 13, 71 P.3d 916, 919 (App. 2003).
¶6 Fourth, as the State contends, although Contreras argued he "lost the possibility that [his sentence in this case] would run concurrent with the [probation terms from prior sentences] as a probation tail," he did not offer any evidence this lost possibility prejudiced his case. Moreover, Contreras had no right or entitlement to concurrent probation if convicted of the charge. Cf. State v. Valdez, 182 Ariz. 165, 171, 894 P.2d 708, 714 (App. 1994) ("Neither a statutory nor a constitutional right exists to receive concurrent sentences for two separate offenses.").
¶7 Citing Barker v. Wingo, 407 U.S. 514, 532, 92 S. Ct. 2182, 2193, 33 L. Ed 2.d 101 (1972), Contreras argues the superior court did not abuse its discretion in dismissing the indictment because the delay extended his incarceration, and thereby, caused him significant in-custody anxiety and thus prejudice. We reject this argument. First, Contreras did not raise this argument in the superior court, and thus, he presented no evidence the delay had actually caused him any in-custody anxiety. Second, Wingo, is a Sixth Amendment post-indictment delay case that recognizes a defendant may suffer anxiety caused by the "public scorn" that exists while awaiting trial in a criminal case. See id. at 532 n.33, 92 S. Ct. 2193 n.33 (indicating defendants awaiting trial might be subject to social disadvantages resulting from public's suspicion of guilt). Pre-indictment, an individual is not awaiting trial and thus is not subject to the same type of public suspicion or scorn.
In granting Contreras's motion the superior court stated the "normal presumption [is] that a charge is 'presumptively prejudicial' after 12 months from the date of the offense." In making this statement the court relied on Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992), a case mistakenly cited by the State and Contreras for that principle. Doggett, like Wingo however, deals with the Sixth Amendment right to a speedy trial and post-indictment delay, not pre-indictment delay.
¶8 For the foregoing reasons, we reverse the superior court's order granting Contreras's motion to dismiss with prejudice and remand for further proceedings consistent with this decision.