Opinion
No. 2 CA-SA 2014-0029
06-27-2014
THE STATE OF ARIZONA, Petitioner, v. HON. RICHARD S. FIELDS, JUDGE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA, Respondent, and MATT EDWARD ZANG, Real Party in Interest.
Barbara LaWall, Pima County Attorney By Nicolette Kneup, Deputy County Attorney, Tucson Counsel for Petitioner Matt Edward Zang, St. Paul, Minnesota Real Party in Interest
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).
Special Action Proceeding from the Superior Court in Pima County
No. CR20111844001
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Barbara LaWall, Pima County Attorney
By Nicolette Kneup, Deputy County Attorney, Tucson
Counsel for Petitioner
Matt Edward Zang, St. Paul, Minnesota
Real Party in Interest
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Brammer concurred. ESPINOSA, Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court.
¶1 In this special action, the State of Arizona challenges the respondent judge's order dated March 27, 2014, re-designating as a class one misdemeanor the class six felony of which real party in interest Matt Zang was convicted pursuant to a plea agreement in the underlying criminal proceeding. For the reasons stated below, we accept jurisdiction of this special action and grant relief.
Factual and Procedural Background
¶2 Zang was charged with aggravated driving under the influence of an intoxicant (DUI) and aggravated driving with a blood alcohol concentration of .08 or more, class four felonies, both committed while Zang was under court order to equip his car with a certified ignition interlock device. In September 2011, Zang entered into a plea agreement that provided he would plead guilty to two amended charges: endangerment, "a class six designated felony," and DUI, a class one misdemeanor. The plea agreement, which the respondent judge expressly accepted at the change-of-plea hearing, provided the sentencing options for the class six felony and the misdemeanor, and stated probation was available for both offenses. At the sentencing hearing on October 21, 2011, the respondent found Zang guilty of endangerment, a class six felony, and misdemeanor DUI. He suspended the imposition of sentence and placed Zang on probation for three years, ordering him to serve a thirty-day jail term as a condition of probation.
¶3 In November 2013, Zang's probation officer filed a petition to terminate probation early. The officer marked the space on the form petition to signify no offenses remained undesignated. Another space on the form was marked to reflect that Zang was entitled to automatic restoration of all civil rights pursuant to A.R.S. § 13-912, except the right to possess a firearm. On November 7, 2013, the respondent judge signed the order terminating probation and marked the space in the section entitled "Designation of Undesignated Offenses" to signify that no changes in this regard were required because, as the form order stated, "the offense previously was designated."
¶4 In February 2014, however, Zang filed an "Application Pro Per To Designate A Class 6 Undesignated Offense." The form he used mischaracterized the conviction and stated he had been convicted of a class six undesignated offense. He asked the respondent judge to designate the offense as a misdemeanor pursuant to A.R.S. § 13-604 because he had successfully completed probation, adding he needed to remove the felony from his record in order to use his "personal training degree." In March, Zang additionally filed a petition seeking to have his right to possess a gun or other firearm restored.
¶5 On March 27, 2014, the respondent judge conducted a hearing on Zang's application and petition. Zang appeared telephonically from Minnesota, where he had moved after obtaining permission in July 2012 from his probation officer and the respondent. Zang urged the respondent to redesignate the felony a misdemeanor because he was applying to be a fire fighter, stating "it would make it a lot easier . . . to get a position . . . without the felony on my record." He also stated he wanted to go hunting with friends and asked the respondent to restore his right to possess a firearm. The prosecutor objected to the redesignation of the offense. She argued Zang had pled guilty to a class six, designated felony, the respondent had accepted the plea agreement, and the offense was accordingly designated a felony at the time of the change-of-plea hearing and sentencing. Therefore, the prosecutor argued, § 13-604 did not apply and did not give the respondent authority to redesignate the previously designated offense.
¶6 Disagreeing with the state, the respondent judge found it would be "unduly harsh to sentence the defendant for a felony," § 13-604(A), and designated the offense a misdemeanor. The respondent also restored all of Zang's civil rights, including the right to possess a firearm, given that the offense had been redesignated a misdemeanor. See A.R.S. §§ 13-905(C) (person convicted of felony may not file for restoration of right to possess or carry gun or firearm for two years from date of discharge from probation), 13-912 (civil rights of first offender automatically restored upon completion of probation or discharge from prison except right to possess weapons; person must apply for restoration pursuant to § 13-905 or A.R.S. § 13-906).
Discussion
¶7 In this special action, the state challenges the respondent judge's redesignation of the offense, raising essentially the same arguments it raised below, insisting § 13-604(A) did not authorize the respondent's ruling. It contends, too, that if the respondent had not wanted to accept Zang's guilty plea to a designated class six felony, "it could have rejected the plea rather than go through the colloquy with Zang . . . [and] could have made a record of deviating from the terms of the plea [agreement] and given the State the opportunity to rescind." Zang has not filed a response to the petition.
¶8 Special action jurisdiction is available when a party has no equally plain, speedy, or adequate remedy by appeal. Ariz. R. P. Spec. Actions 1(a). The state's right to appeal is set forth in A.R.S. § 13-4032; it has no right to appeal from the order entered in the underlying action. Specifically, with respect to a post-judgment order such as this, the state's right to appeal is limited to those orders "affecting the substantial rights of the state or a victim," § 13-4032(4), which this order did not. In addition, it is appropriate for this court to accept special action jurisdiction when a pure question of law has been raised, such as the interpretation of a statute. See State ex rel. Romley v. Martin, 203 Ariz. 46, ¶¶ 4-5, 49 P.3d 1142, 1143 (App. 2002). Here, we are asked to interpret and determine the meaning of § 13-604. For these reasons, we accept special action jurisdiction.
¶9 "Our primary purpose in interpreting a statute is to give effect to the legislature's intent." Parker v. City of Tucson, 233 Ariz. 422, ¶ 12, 314 P.3d 100, 106 (App. 2013). "Because the plain language of a statute is the best reflection of that intent, when a statute is clear and unambiguous we need look no further than the statute's terms to determine its meaning and do not employ other principles of statutory construction." Id. The plain language of the statute is "the best and most reliable index of a statute's meaning." State v. Christian, 205 Ariz. 64, ¶ 6, 66 P.3d 1241, 1243 (2003); see also A.R.S. § 1-213.
¶10 Section 13-604(A) provides:
Notwithstanding any other provision of this title, if a person is convicted of any class 6 felony not involving a dangerous offense and if the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that it would be unduly harsh to sentence the defendant for a felony, the court may enter judgment of conviction for a class 1 misdemeanor and make disposition accordingly or may place the defendant on probation in accordance with chapter 9 of this title and refrain from designating the offense as a felony or misdemeanor until the probation is terminated. The offense shall be treated as a felony for all purposes until such time as
the court may actually enter an order designating the offense a misdemeanor. This subsection does not apply to any person who stands convicted of a class 6 felony and who has previously been convicted of two or more felonies.
¶11 The language of the statute is clear and unambiguous. See State v. Russell, 226 Ariz. 416, ¶¶ 6, 8, 249 P.3d 1116, 1117-18 (App. 2011). It plainly provides a trial court with three options when a defendant has been convicted of a class six felony: it can designate the offense a felony at sentencing and sentence accordingly; if it finds sentencing the defendant for a felony would be unduly harsh, it can designate the offense a misdemeanor and sentence accordingly; or, it can leave the offense undesignated, place the defendant on probation, and designate the offense as either a felony or misdemeanor after probation is completed. State v. Diaz, 173 Ariz. 270, 272, 842 P.2d 617, 619 (1992) (identifying "three options" available to trial court under A.R.S. § 13-702(H), precursor of § 13-604(A), see 2008 Ariz. Sess. Laws, ch. 301, §§ 16, 24; 1993 Ariz. Sess. Laws, ch. 255, § 11, when sentencing defendant for non-dangerous class six felony). Here, however, those options were limited at the outset by the plea agreement.
¶12 As noted earlier, Zang was charged with two class four felonies but pursuant to the plea agreement, he agreed to plead guilty to one misdemeanor and one class six designated felony. The respondent judge accepted the agreement at the change-of-plea hearing, and consistent with its terms, designated the endangerment offense a class six felony at the sentencing hearing. The agreement submitted for the respondent's approval included among its negotiated terms the designation of the offense as a class six felony. Thus, if the respondent accepted the plea agreement, he would not have the option to decide, in the exercise of his discretion, whether the offense was to be designated a felony or misdemeanor or when that decision was to be made. See State v. Corno, 179 Ariz. 151, 153-54, 876 P.2d 1186, 1188-89 (App. 1994) (interpreting § 13-702(H) and Rule 17.4(a), Ariz. R. Crim. P., and concluding parties may agree whether class six felony would remain undesignated or would be designated, and noting trial court may accept or reject agreement containing such provision or other sentencing stipulations). Having accepted the plea agreement, however, the respondent agreed the endangerment count was to be designated a class six felony and accordingly had done so.
Based on the record we have been provided, it cannot be disputed that the endangerment offense was designated at the change-of-plea hearing, given the clear terms of the plea agreement, and again at sentencing. That no charge remained undesignated after the sentencing hearing was confirmed by the petition to terminate probation and the termination order the respondent judge signed as well; the order acknowledged no charge remained undesignated, and restored all of Zang's civil rights except the right to possess a firearm. Zang's application to designate an "undesignated offense," therefore, was incorrect in characterizing the endangerment count as undesignated.
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¶13 Not only was the respondent judge required to follow the terms of the plea agreement, but once he had designated the offense, he had no authority under § 13-604 to change that designation. Although the respondent's comments at the hearing reflect he believed Zang had performed well on probation and punishing him for having committed a felony would be unduly harsh, the statute did not authorize the respondent to change the designation, nor are we aware of any other statute that would have provided him with such authority. Even assuming arguendo the parties could have conferred that authority on the respondent by agreeing to the redesignation, there is nothing in the plea agreement that permitted the offense to be redesignated and, as we noted above, the state objected at the time of Zang's request and continues to oppose it, having filed this special-action petition.
Disposition
¶14 We conclude the respondent judge acted in excess of his legal authority and abused his discretion by erring on a question of law and its application. See Ariz. R. P. Spec. Actions 3(b), (c); see also Abeyta v. Soos ex rel. Cnty. of Pinal, 234 Ariz. 190, ¶ 7, 319 P.3d 996, 999 (App. 2014). We, therefore, grant the relief requested and vacate that portion of the respondent's order redesignating the offense of endangerment from a class six felony to a class one misdemeanor.