Tomb v. Hon. Ronan/State

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEBRA ANN TOMB, ) ) Petitioner, ) ) v. ) ) THE HONORABLE EMMET RONAN, Judge ) of the SUPERIOR COURT OF THE ) STATE OF ARIZONA, in and for the ) County of Maricopa, ) ) ) Respondent Judge, ) ) STATE OF ARIZONA, ) Real Party in Interest. ) ) No. DIVISION ONE FILED: 12/14/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-SA 09-0261 DEPARTMENT A MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Petition for Special Action from the Superior Court in Maricopa County Cause No. CR 2008-031185-001 SE The Honorable Emmet Ronan, Judge JURISDICTION ACCEPTED; ORDER VACATED AND REMANDED Andrew P. Thomas, Maricopa County Attorney By Arthur Hazelton, Deputy County Attorney Attorneys for Real Party in Interest Phoenix Baker & Baker By Thomas M. Baker Attorneys for Petitioner Phoenix J O H N S E N, Judge ¶1 court At issue in this appeal is an order by the superior denying a defendant s motion to dismiss identity-theft charges brought against her in Maricopa County after a similar charge against her in Pinal County was dismissed by agreement. We reaffirm the rule that jeopardy does not attach to a criminal charge dismissed pursuant to a plea agreement. however, attorney s that a office plea on agreement behalf of negotiated the State may We also hold, by be one county enforceable against another county attorney s office and remand for further consideration of whether, by agreeing to the dismissal of the one charge, the State promised it would not bring other related identity-theft charges. FACTS AND PROCEDURAL BACKGROUND ¶2 By her own account, Debra Ann Tomb became addicted to prescription pain killers first prescribed for back pain. When her physician stopped prescribing the drugs for her, she stole a prescription pad from the medical office in which she had worked and wrote dozens of prescriptions for herself. She forged the name and license number of a nurse practitioner in the medical office and filled many of the prescriptions at pharmacies in Apache Junction, where she lives, and others at a pharmacy located about a mile west of the Apache Junction city limits. 2 Although most of Apache Junction lies within Pinal County, a portion of the west side of the city is part of Maricopa County. The Apache Junction pharmacies prescriptions are situated pharmacy used is she at within located in which Pinal an Tomb County; filled the unincorporated other area of Maricopa County. ¶3 Apache Junction and Mesa police both investigated Tomb and shared information about their respective investigations. Apache Junction police arrested Tomb, who waived her Miranda 1 rights and agreed to be interviewed Apache Junction police station. without a lawyer at an In the interview, which a Mesa police officer watched through a closed-circuit television, Tomb admitted she forged numerous prescriptions for herself at a number of pharmacies within the Apache Junction city limits. After Apache Junction police completed their interview, the Mesa officer entered the interview room and questioned Tomb, who admitted filling other prescriptions at the other location. ¶4 A Pinal County grand jury indicted Tomb on 35 counts of forgery in violation of Arizona Revised Statutes ( A.R.S. ) section 13-2002(A)(2) (2001) and a single count of identity theft in violation of A.R.S. § 13-2008 (Supp. 2008), all Class 4 felonies. 1 On October 2, 2008, Tomb signed a plea agreement in Miranda v. Arizona, 384 U.S. 436 (1966). 3 which she agreed to plead guilty to two of the forgery charges in exchange for dismissal of the remaining charges. The Pinal County Superior Court accepted the plea agreement on October 6 and later imposed a four-year term of probation. ¶5 Two days after the Pinal County court accepted Tomb s plea agreement, the Maricopa County Attorney s Office issued a direct complaint charging Tomb with two counts of identity theft in violation of A.R.S. § 13-2008 in connection with prescriptions filled at the pharmacy outside the Apache Junction city limits in Maricopa County. Tomb moved to dismiss charges, arguing they were barred by double jeopardy. the After the State objected, the superior court denied the motion. 2 ¶6 Tomb Maricopa County agreement. moved for charges reconsideration, constituted a arguing breach of that the her plea The court denied the motion, reasoning: It appears clear to the Court that the Arizona Legislature intended that prosecuting agencies should be permitted to consolidate identity theft complaints in different counties against the same defendant in one county so that they can all be heard in one court. . . . It also appears that could have (and should have) been done in this case. However, there is nothing in the charging documents or the 2 Following the court s denial of Tomb s motion to dismiss, the State amended the information to allege one of Tomb s Pinal County forgery convictions as an historical prior felony conviction and to assert that the charged felonies were multiple offenses not committed on the same day pursuant to A.R.S. § 13702.02 (now § 13-703). 4 Pinal County plea agreement to indicate that the two prosecuting agencies in this case intended that to happen. DISCUSSION A. Jurisdiction. ¶7 The denial of a motion to dismiss is not an appealable order. United States v. Super. Ct. In and For Maricopa County, 144 Ariz. 265, 269, 697 P.2d 658, 662 (1985). We exercise our discretion special to accept jurisdiction of Tomb s action petition because she has no equally plain, speedy or adequate remedy by appeal from the court s decision that the Maricopa County charges were not precluded by the Pinal County plea agreement, see Hovey v. Superior Court, 165 Ariz. 278, 281, 798 P.2d 416, 419 (App. 1990), and because the question of whether double jeopardy bars the later charges is purely a question of law, see Lewis v. Warner, 166 Ariz. 354, 355, 802 P.2d 1053, 1054 (App. 1990). B. Jeopardy Does Not Attach to a Charge Dismissed Pursuant to a Plea Agreement. ¶8 Tomb argues that under double jeopardy principles, the negotiated dismissal of the Pinal County identity-theft charge bars her charges. prosecution on the Maricopa County identity-theft She cites no authority, however, for the proposition that jeopardy attaches to a charge dismissed pursuant to a plea agreement. 5 ¶9 In arguing that double jeopardy does not apply, the State cites Lewis, in which the issue was whether a dismissal pursuant to a plea agreement serves purposes of the double jeopardy clause. at 1055. Because such a dismissal as an acquittal for Id. at 356, 802 P.2d does not involve the presentation of evidence and because the superior court had made no factual findings as to the merits of the dismissed charge, the court in that case held jeopardy did not attach to the dismissed charge. Id. at 357, 802 P.2d at 1056. Courts in other jurisdictions agree that jeopardy does not attach in that situation. E.g., United States v. Green, 139 F.3d 1002, 1004 (4th Cir. 1998); United States v. Garner, 32 F.3d 1305, 1311 n.6 (8th Cir. 1994); United States v. Nyhuis, 8 F.3d 731, 735 n.2 (11th Cir. 1993); United States v. Fontanez, 869 F.2d 180, 183 (2d Cir. 1989); United States v. Vaughan, 715 F.2d 1373, 1377 (9th Cir. 1983); People v. Mezy, 551 N.W.2d 389, 391 (Mich. 1996). ¶10 Accordingly, the superior court did not err by declining to hold that double jeopardy principles barred the identity-theft charges filed in Maricopa County. C. Breach of Plea Agreement. ¶11 County Tomb charges argues must in be the alternative dismissed 6 because that the Maricopa they constitute a breach of the plea agreement approved by the Pinal County Superior Court. ¶12 To this the State responds as an initial matter that Tomb waived this argument by failing to raise it in the Pinal County superior court prior to her sentencing on the charges to which she pled guilty. Although waiver usually is a question of fact, the State itself waived this argument by failing to raise it in response to Tomb s motion to dismiss the complaint. ¶13 Addressing defendant has a the merits due-process of right promises used to elicit a plea. Tomb s to contention, fulfillment of a the Hovey, 165 Ariz. at 281, 798 P.2d at 419; see Santobello v. New York, 404 U.S. 257, 262 (1971) ( when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled ); cf. State v. Georgeoff, 163 Ariz. 434, 436-37, 788 P.2d accepted 1185, by 1187-88 the prosecutor s breach fundamental error). (1990) court of (although implicates a plea have held plea due-process agreement We a that does when agreement rights, not constitute a prosecutor breaches a plea agreement, a defendant may move for specific 7 performance. Hovey, 165 Ariz. at 282, 798 P.2d at 420; see United States v. Hawes, 774 F. Supp. 965, 970 (E.D. N.C. 1991). 3 ¶14 As noted, Tomb s plea agreement provided for the dismissal of 33 forgery counts and the single identify-theft charge alleged in the indictment. Specifically, the written agreement recited, [Those] charges are dismissed or, if not yet filed, shall not be brought against the Defendant. the State breached that agreement by filing Tomb argues the pair of identity-theft charges against her in Maricopa County. ¶15 Pinal In response, the State first argues that even if the County intended to identity-theft encompass charge conduct that was underlying the dismissed Maricopa was County identity-theft charges, the dismissal of the Pinal County charge was without prejudice, meaning that the State reserved the power to refile the dismissed charge. that neither provided prejudice. the whether plea the agreement dismissal The basis of this argument is nor was the to be judgment with or expressly without See Ariz. R. Crim. P. 16.6(d) (dismissal shall be without prejudice to commencement of another prosecution, unless 3 Courts that reject double-jeopardy claims arising out of plea agreements sometimes suggest that defendants may receive relief by way of specific performance of the plea agreement. E.g., Vaughan, 715 F.2d at 1377 n.1; Hawes, 774 F. Supp. at 970; Lewis, 166 Ariz. at 356 n.3, 802 P.2d at 1055 n.3. 8 the court order finds that the interests of justice require that the dismissal be with prejudice ). ¶16 We do not accept the State s argument that in agreeing to plead guilty to certain charges, Tomb intended to allow for the possibility bargained to that have the State refile Rather, dismissed. would we the charges construe the she plea agreement as containing an implied promise by the State that as long as Tomb satisfied her obligations under the plea agreement, it would not refile the charges that were to be dismissed. 4 ¶17 bind The State also argues that the plea agreement does not the entered disagree. Maricopa into by County the Attorney s Pinal County Office because Attorney s it Office. was We The plea agreement approved by the superior court was not between Tomb and the Pinal County Attorney s Office; it was between Tomb and the State of Arizona. 5 In charging Tomb in connection with the prescriptions filled in Maricopa County, the Maricopa County Attorney s Office represents the State of Arizona and is bound by whatever obligations the plea agreement imposed on the State. 4 The State does not allege that Tomb has breached the plea agreement. 5 The plea agreement began, The State of Arizona and the defendant hereby agree to the following disposition of the case. 9 ¶18 In denying Tomb s motion to dismiss and her subsequent motion for reconsideration, the superior court concluded there was nothing in the indictment or plea agreement that indicated that the two prosecuting agencies in this case intended the plea agreement to dispose of all identity-theft charges relating to Tomb s theft of the prescription pad. Based on the record before us, however, the intent of the Maricopa County Attorney s Office would not bear directly on how the plea agreement should be interpreted. As we have said, the Pinal County Attorney s Office acted on behalf of the State in negotiating the plea agreement with Tomb; there is no indication in the materials before us that the Maricopa County Attorney s Office participated in those negotiations. ¶19 The State further argues that, as a matter of law, the identity-theft charge dismissed pursuant to the plea agreement cannot encompass the identity-theft charges filed in Maricopa County because authority to the bring outside Pinal County. ¶20 Under Pinal before County the Attorney s grand jury a Office crime lacked committed Again, we disagree. Arizona law, a crime may be charged in any county in which conduct constituting an element of an offense or a result constituting an A.R.S. § 13-109(B)(1) (2001). element of an offense occurs. The identity-theft statute states this principle expressly by providing that [i]f a defendant is 10 alleged to have committed multiple violations of this section within the state, the prosecutor may file a complaint charging all of the violations and any related charges under other sections that have not been previously filed in any county in which a violation is alleged to have occurred. 2008(D). A.R.S. § 13- Under these provisions, the Pinal County Attorney s Office plainly had the power to charge Tomb with all identitytheft violations she had committed, even those committed in Maricopa County. ¶21 As the superior court noted, the three identity-theft charges all arise out of the same course of conduct Tomb took the one prescription pad and repeatedly used the nurse practitioner s name and license number to write prescriptions from the pad. The Pinal County indictment broadly alleged Tomb had violated A.R.S. § 13-2008(A) over a 15-month period in a wide variety of ways (i.e., taking, using, selling transferring the nurse practitioner s stolen identity). 6 6 or The A.R.S. § 13-2008(A) describes the crime of identity theft as follows: A person commits taking the identity of another person or entity if the person knowingly takes, purchases, manufactures, records, possesses or uses any personal identifying information . . . of another person . . . without the consent of that other person or entity, with the intent to obtain or use the other person s or entity s identity for any unlawful purpose . . . . 11 Maricopa County charges alleged that on January 4 and February 21, 2008 (within time period encompassed by the Pinal County charge), Tomb took, possessed and used the stolen identity the same allegations made in the Pinal County indictment. ¶22 The State acknowledges the breadth of the dismissed Pinal County charge but contends that each individual use of a false identity may be charged as a separate offense under A.R.S. § 13-2008(A). Thus, it contends that as alleged in the Maricopa County complaint, a use of the prescription pad and the nurse practitioner s identifying information on January 4, 2008 may be a separate offense from use of the prescription pad and the stolen identifying information on February 21, 2008 and from any of the occasions on which Tomb used the prescription pad to fill prescriptions argument the in Pinal State s County. contention Accepting that each for use of purposes the of stolen prescription pad could have been charged as a separate offense, given the broad scope of the Pinal County identity-theft charge, we cannot conclude on this record that it did not encompass one or both of the events charged in the Maricopa County complaint. ¶23 have The State also argues the dismissed charge could not been because intended the to indictment encompass the acts in Maricopa alleged that Tomb committed County identity theft in or near Apache Junction, Arizona, not outside the city. As we have said, however, 12 the lone Maricopa County pharmacy at which Tomb is alleged to have filled forged prescriptions is located about a mile beyond the Apache Junction city limits, which is near Apache Junction. Contrary to the State s contention, a location near a city necessarily must be outside the city, not inside. That language, therefore, fairly may be read to imply that the conduct alleged in the dismissed charge took place at least a short distance beyond the Apache Junction city limits. ¶24 The State further argues that the introduction to the indictment recites that the grand jury charg[ed] that [Tomb committed certain acts] in Pinal County, Arizona. Given that the law permits a charge to be brought within any county in which an cannot element construe possibility indictment the charged offense the that was of quoted the identity-theft intended to language occurs, as the we foreclosing charge encompass however, the alleged the in prescriptions Tomb filled in the Maricopa County pharmacy using the prescription pad she stole in Pinal County. is particularly statute expressly true See A.R.S. § 13-109(B)(1). because, permits as multiple noted, the This identity-theft identity-theft committed throughout the state to be charged at once. violations A.R.S. § 13-2008(D). ¶25 We note the plea agreement provided that not only would the specified Pinal County charges be dismissed, it also 13 provided that charges if not yet filed, shall not be brought against the Defendant. Tomb argued in the superior court that she understood the latter provision to apply to charges that were under investigation by Mesa police, and she provided an affidavit to that effect. She pointed out that, as described above, Apache Junction police cooperated with Mesa police in investigating her use of the prescription pad and showed that a Mesa police detective was in the grand jury room when evidence supporting the Pinal County indictment was taken. ¶26 We concur with the superior court s observation that consolidation in the Pinal County indictment of all possible identity-theft charges against have) occurred in this case. Tomb could have (and should Based on the record before us, and for the reasons set forth above, we hold that, consistent with Tomb s affidavit, the plea agreement may be reasonably susceptible to the conclusion that the parties intended it to encompass the identity-theft charges contained in the Maricopa County complaint. See Taylor v. State Farm Mutual Automobile Ins. Co., 175 Ariz. 148, 153-54, 854 P.2d 1134, 1139-40 (1993) (in attempting to ascertain and give effect to the intention of the parties at the time the contract was made if at all possible, court may consider parol evidence if it finds that the contract language is reasonably susceptible to the interpretation offered by the proponent of the evidence, but may 14 not consider evidence that would vary or contradict the meaning of the written words of the contract; citing Polk v. Koerner, 111 Ariz. 493, 495, 533 P.2d 660, 662 (1975), and Restatement (Second) of Contracts § 215 cmt. b (1979)). ¶27 Accordingly, we vacate the order denying the motion to dismiss and remand to permit the superior court to consider the relevant evidence, including parole evidence relating to Tomb s understanding of the plea agreement understanding of the Pinal County and the Attorney s corresponding Office, which negotiated the agreement on behalf of the State. CONCLUSION ¶28 We hold the superior court correctly concluded that double jeopardy principles do not bar the identity-theft charges contained in the Maricopa County complaint. Further, we conclude that the Maricopa County Attorney s Office, as an agent of the State, is bound by the plea agreement Tomb negotiated with the Pinal County Attorney s Office. We grant relief insofar as we vacate the order denying the motion to dismiss and remand for proceedings consistent with this decision. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ MAURICE PORTLEY, Judge 15 B A R K E R, Judge, concurring in part; dissenting in part. ¶29 I agree with the majority s conclusion that Tomb is not entitled to relief on double jeopardy grounds. I disagree with the conclusion that she is entitled to relief based on the plea agreement. ¶30 treat When considering the scope of the plea agreement, we it as a interpretation. contract and apply principles of contract Coy v. Fields, 200 Ariz. 442, 445, ¶ 9, 27 P.3d 799, 802 (App. 2001) ( Plea agreements are contractual in nature and subject to contract interpretation. ); Mejia v. Irwin, 195 Ariz. 270, 272, ¶ 12, 987 P.2d 756, 758 (App. 1999) ( A plea agreement is like a contract between the State and the defendant and is subject to contract interpretation. ). ¶31 Notably absent from this plea agreement is any agreement as to charges that were not a part of the specific indictment at issue. The plea agreement has a specific section for the dismissal of unfiled charges. That section, section 3, states in whole as follows: The following charges are dismissed or, if not yet filed, shall not be brought against the Defendant: COUNTS 1-32;34,36; ALLEGATION OF § 13-702.02. By its terms, Section 3 is limited to the following charges. The charges listed are those that were filed in Pinal County. There are no charges listed that had not yet been filed. 16 It would have been a simple matter to list potential charges out of the Mesa Police intended. Departmental Report That was not done. if that was what was To effectively write in the unfiled charges that were not listed would be to modify the plea agreement, as described below. ¶32 Further, the indictment to which the plea agreement refers is specifically limited to, and based upon, facts that occurred in Pinal County. The initial statement in the indictment, upon which each dismissed count is based, provides: The grand jurors of Pinal County, Arizona, accuse Debra Ann Tomb, charging added.) based, that in Pinal County, Arizona. (Emphasis The facts upon which the Maricopa County charges are however, are specifically limited to Maricopa County: The complainant herein personally appears and . . . complains on information and belief against Debra Ann Tomb, charging that in Maricopa County, Arizona . . . . (Emphasis added.) All conduct necessary for a jury to convict on counts 1 and 2 in the Maricopa County action occurred in Maricopa County. Thus, by the plain terms of the plea agreement and the language of the indictment in the Pinal County matter, an action based on such facts is not precluded. ¶33 We can still give meaning to the phrase in or near Apache Junction and be faithful to the express terms of the charging document, which limits 17 the conduct to that which occurred in Pinal County. In short, the conduct must be in or near Apache Junction, but it also must be in Pinal County. ¶34 Given the express terms of the plea agreement and the charging document just referenced, to remand this matter for an evidentiary hearing to determine whether the parties intended to include conduct in Maricopa County as part of the dismissal of the Pinal County action is contrary to our established case law. In Taylor v. State Farm Mutual Automobile Insurance Co., 175 Ariz. 148, 152-55, 854 P.2d 1134, 1138-41 (1993), our supreme court set forth the guiding principles as to when parol evidence may be considered in construing a contract. plea agreements like contracts, those Because we treat principles apply here. Coy, 200 Ariz. at 445, ¶ 9, 27 P.3d at 802; Mejia, 195 Ariz. at 272, ¶ 12, 987 P.2d at 758. ¶35 Under Taylor, the judge first considers the offered evidence and, if he or she finds that the contract language is reasonably susceptible to the interpretation asserted by its proponent, the evidence is admissible to determine the meaning intended by the parties. 175 Ariz. at 154, 854 P.2d at 1140. However, Taylor recognized the parol evidence rule prohibits extrinsic evidence to vary or contradict the agreement. Ariz. at 152, 854 P.2d at 1138 (emphasis added). 175 Here, permitting the introduction of extrinsic evidence that the plea agreement permits the dismissal of unfiled charges contradicts 18 the express language in Section 3, above, that is restricted to the following charges, which are then expressly enumerated in the charging document at issue in Pinal County. That charging document in turn is limited to conduct that occurred in Pinal County. By permitting it to apply to conduct outside of Pinal County we would be again modifying the plea agreement. Thus, to permit extrinsic evidence that the plea agreement was intended to cover conduct that was neither separately listed in Section 3 and occurred outside of Pinal County violates Taylor. ¶36 For these reasons, I would affirm the trial court and uphold the plea agreement as written. /s/ DANIEL A. BARKER, Judge 19

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