State v. Jackson
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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
STATE OF ARIZONA,
v.
DONNIE JACKSON,
)
)
Appellant, )
)
)
)
)
)
Appellee. )
)
)
)
1 CA-CR 10-0114
1 CA-CR 10-0123
1 CA-CR 10-0289
(Consolidated)
DIVISION ONE
FILED: 09/08/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
DEPARTMENT B
MEMORANDUM DECISION
(Not for Publication Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause Nos. CR2008-030406-001SE
CR2009-030788-001SE
CR2009-030788-001SE
The Honorable Timothy J. Ryan, Judge
VACATED AND REMANDED WITH DIRECTIONS
___________________________________________________________________
William G. Montgomery, Maricopa County Attorney
By
Lisa Marie Martin, Deputy County Attorney
Attorneys for Appellant
Phoenix
James J. Haas, Maricopa County Public Defender
Phoenix
By
Terry J. Adams, Deputy Public Defender
Attorneys for Appellee
___________________________________________________________________
W I N T H R O P, Chief Judge
¶1
In this consolidated appeal, the State of Arizona, by and
through the Maricopa County Attorney, appeals the trial court’s
orders dismissing criminal charges against Donnie Jackson with
prejudice.
For the following reasons, we vacate the dismissal with
prejudice of the charges against Jackson and remand to the trial
court
with
instructions
to
dismiss
the
2008
charges
without
prejudice and to reinstate the 2009 charges against Jackson.
FACTS AND PROCEDURAL HISTORY 1
¶2
The following facts are supported by the record:
On
October 30, 2008, police arrested Jackson for a violent home
invasion that occurred on October 22, 2008.
Maricopa
County
Attorney’s
Office
charged
The next day, the
Jackson
by
direct
complaint with two counts of armed robbery, each a class two
dangerous felony.
(2010). 2
See Ariz. Rev. Stat. (“A.R.S.”) § 13-1904
A grand jury issued a supervening indictment on November
7, 2008, and the case was assigned cause no. CR2008-030406-001SE in
the Maricopa County Superior Court (“the 2008 case”).
¶3
Given the nature of the allegations and Jackson’s alleged
prior criminal record, the trial court set bond at $250,000, and
Jackson remained incarcerated throughout pendency of the case.
At
his November 17, 2008 arraignment, Jackson entered a plea of not
guilty.
At that time, the last day for trial was April 16, 2009.
See Ariz. R. Crim. P. (“Rule”) 8.2(a)(1) (limiting the time between
arraignment and trial to 150 days for in-custody defendants).
Due
1
We view the facts in the light most favorable to sustaining
the court’s determination. See State v. Kiper, 181 Ariz. 62, 64,
887 P.2d 592, 594 (App. 1994).
2
We cite the current version of the applicable statute if no
revisions material to our analysis have since occurred.
2
to numerous time extensions occasioned by the defense throughout
pendency of the case, however, the last day eventually became
December 5, 2009.
¶4
See Ariz. R. Crim. P. 8.2(d).
The State and Jackson entered plea negotiations, and on
April 1, 2009, they engaged in a settlement conference, at which
Jackson was advised the State was considering additional charges,
including kidnapping and aggravated assault.
Jackson, however,
declined the State’s plea offer and indicated he was willing to
take the risk of the additional charges being brought against him
before trial.
¶5
In April 2009, Jackson filed a notice that he planned to
call an identification expert at trial, ostensibly to challenge the
victims’ identification of him as one of the perpetrators.
At the
June 9, 2009 status conference, defense counsel agreed to exclude
time to allow scheduling for the expert witness and noted that the
witness would only be available “in early July or after September
15th.
If we have to file a motion to continue until after the last
day, we can do that.”
To accommodate defense counsel’s request,
the trial court (Judge Emmet J. Ronan of the Southeast Facility of
the Superior Court) set trial for September 14, 2009, and a trial
management conference for August 31, 2009.
¶6
On July 24, 2009, the trial court held an evidentiary
hearing on a defense motion to suppress evidence of a handgun
3
seized during Jackson’s arrest.
The court took the matter under
advisement.
¶7
On August 25, 2009, the State filed a motion to continue
the trial until September 28 due to the unavailability of one of
its witnesses. 3
Defense counsel did not object, and at the August
31 trial management conference, the court granted the State’s
motion.
The court also set a new trial management conference for
September 21.
At that time, the last day for trial was October 14,
2009.
¶8
On September 17, 2009, defense counsel filed a motion to
continue,
contending
that
the
defense’s
expert
unavailable until sometime in early November.4
witness
was
At the September 21
trial management conference, coverage counsel appeared for both
sides.
Defense
counsel
requested
that
the
trial
management
conference be reset for September 24, 2009, because counsel did not
know about the availability of her expert.
Defense counsel also
agreed to waive time, and the trial court vacated the September 28
trial date.
¶9
On
September
24,
request for a continuance.
2009,
defense
counsel
renewed
her
After noting that her expert had
scheduled a vacation and would be out of the country, defense
3
4
This was the State’s first such motion.
At no time before trial did defense counsel, the State, or the
court explore the possibility that the expert witness’s testimony
might be introduced through videotape or some manner other than
live testimony.
4
counsel stated that the next available date for her expert would be
Monday, November 16.
Coverage counsel for the State agreed to the
continuance, and the court reset trial for November 16, scheduled a
trial management conference for Monday, November 9, and excluded
time, making the new last day December 5, 2009.
After the court
set the dates, defense counsel advised that her expert would be
available to testify on either November 16 or 18, and counsel
intended to have the expert testify on November 18.
¶10
In the meantime, the prosecutor in the 2008 case (Mr.
Sean Kelly) was also assigned to the case of State v. Careaga,
which was also assigned to Judge Ronan. 5
At the October 5, 2009
trial management conference in the Careaga case, defense counsel
requested a continuance.
Coverage counsel for Mr. Kelly noted that
the prosecutor’s calendar indicated he was “available the week of
the 9th, 23rd or 30th of November.”
The court reset the Careaga
trial for Monday, November 9, and set a trial management conference
for Monday, November 2.
The court also advised counsel that the
Careaga case was a “priority” case that would “not be continued for
any other trial conflicts.”
At the November 2 trial management
conference, the court confirmed the November 9 trial date, stating
5
We take judicial notice of the record in State v. Careaga,
Maricopa County Superior Court cause no. CR2008-031153-001SE. See
State v. Valenzuela, 109 Ariz. 109, 110, 506 P.2d 240, 241 (1973)
(recognizing that an appellate court may take judicial notice of
the records of the superior court).
5
“[t]here will be an order affirming trial for next Monday on the
master calendar before Judge [Timothy J.] Ryan.” 6
¶11
On November 9, the court (Judge Ronan) held a trial
management conference in the 2008 case.
Coverage counsel again
appeared for the prosecutor, and defense counsel reminded the court
that her expert witness planned to testify on November 18.
The
court confirmed that trial would begin on November 16 and advised
counsel that the case would be transferred downtown to “the master
calendar [before Judge Ryan], but we will send them a note that you
6
In a March 30, 2010 minute entry, Judge Ryan explained the
master calendar system as follows:
As of July, 2009, the Criminal Department of the
Maricopa County Superior Court disbanded the Criminal
Case Transfer system for reassignment of trial ready
cases, and replaced it with the Master Calendar. Stated
simply, cases would be managed by the entire department,
then, on the day of trial, be assigned to a particular
judge to begin jury selection.
This transformation did not impact the cases
assigned to the Southeast Facility of the Superior Court.
Those judges managed several hundred cases individually.
The transfer of the downtown Phoenix Courts to the Master
Calendar left the Southeast Courts without an ability to
reassign cases for trial close in time to the trial date,
as the Criminal Case Transfer system had been disbanded.
The solution for the Courts and attorneys in the
Southeast Facility was to reassign matters for trial to
the Master Calendar during the Final Trial Management
Conference, scheduled several days before trial. At the
Final Trial Management Conference, the attorneys were
advised of the reassignment to downtown Phoenix. They
were advised that Master Calendar Trial Assignment
Calendar started promptly at 8:00 a.m. They were advised
to come to this Division to learn which judge would be
assigned to their case for trial.
6
have the witness.”
Defense counsel also inquired about the status
of the motion to suppress the handgun, and noted that the court had
previously indicated its “inclination was to listen to what the
witnesses had to say [at trial] before making a final ruling.”
The
court advised counsel that the motion would have to be ruled on by
“the judge you’re placed with.”
¶12
Despite the fact that both sides’ counsel were prepared
for trial in the Careaga case, that case was continued until
November 10, 7 and it was later continued until November 12, due to
court unavailability.
On Thursday, November 12, 2009, the court
(Judge Ryan) assigned the Careaga case to Commissioner Julie P.
Newell and, to accommodate defense counsel in that case, ordered
that
jury
selection
in
that
afternoon of November 16.
priority
trial
would
begin
the
The court scheduled a final trial
management conference in the Careaga case for the afternoon of
Friday, November 13.
¶13
Later in the afternoon of November 12, the prosecutor
filed a notice of trial conflict in the 2008 case, explaining that
trial in that case, which was scheduled to begin November 16, would
conflict with his scheduled trial in the Careaga case, which “was
supposed to begin on Monday, November 9, 2009; however, due to the
7
The court’s November 2 minute entry, which was electronically
filed November 5, indicates that the court changed the trial date
from November 9 to November 10 sometime after the November 2 trial
management conference had concluded because “the Master Calendar
Assignment Judge is not available for trial on November 9, 2009.”
7
unavailability of any judge to try the case, we were not set to
begin
trial
until
Monday,
Commissioner Newell.”
November
16,
2009
in
front
of
The prosecutor noted that trial in the
Careaga case was expected to continue through at least Wednesday,
November
18,
and
he
requested
that,
due
to
numerous
other
scheduling conflicts, trial in the 2008 case be rescheduled for
late December or early January. 8
¶14
On Monday morning, November 16, counsel in the 2008 case
met before Judge Ryan, the master calendar assignment judge, who
considered the State’s notice of trial conflict, characterizing it
as
a
motion
to
continue.
Defense
counsel
objected
to
a
continuance, explaining, “I understand that Mr. Kelly is in trial
and can’t be in two places at once, but . . . Mr. Jackson’s been in
custody for well over a year.
expert.”
In addition, we have secured an
Defense counsel noted the trial had been set with the
schedule of the defense’s expert witness in mind.
Judge Ryan asked
how the case came to be on his calendar, and defense counsel
explained,
“Because
Judge
Ronan
decided
at
our
TMC
[trial
management conference] last Monday that he had 15 trials set for
today, and that our case did not take precedent, and he sent us
down here.”
Defense counsel further noted that Judge Ronan had
held “a full evidentiary hearing” on the motion to suppress in
8
Trial in the Careaga case ultimately lasted four half-days,
including return of verdict, because trial was held only during the
afternoons due to Commissioner Newell’s schedule as an “afternoon
only” judge.
8
July, but had still not ruled on the motion because “he wanted to
hear what the witnesses said at trial before making a final
decision.”
The court questioned how counsel could “make opening
statements if you don’t know what the evidence will be,” and
defense counsel agreed that the issue should have been resolved
earlier because “we don’t know . . . if the evidence is going to
come in or not.”
The court then noted that it did not “have any
judges left to pin a trial to this morning.”
Defense counsel
replied that “it’s not my client’s problem” and warned the court
that “it’s my understanding the judge has to get permission from
the Supreme Court to exclude time.”
The court replied that it need
not exclude time because the current last day was December 5.
Defense counsel argued against continuation of the case, even
within time limits, maintaining that “if we don’t go today, then
the
expert
is
not
going
to
be
available
to
testify,”
and
insinuating her client’s (Jackson’s) due process rights might
therefore be violated.
The court then denied in part the State’s
motion, vacated the November 16 trial date, reset the trial date to
commence and for assignment on November 17, and stated that the
trial would be considered a priority trial.
¶15
On Monday afternoon, November 16, trial began in the
Careaga case.
That same afternoon, the State filed a motion to
dismiss the 2008 case without prejudice, explaining that the
prosecutor was unable to proceed to trial due to a scheduling
9
conflict.
The State avowed the motion was not being filed for the
purpose of avoiding Rule 8 and further stated that the State had
complied with all victims’ rights.
¶16
On the morning of Tuesday, November 17, 2009, defense
counsel and coverage counsel for the prosecutor appeared before
Judge Ryan, who stated it was his understanding the 2008 case was
being dismissed.
Defense counsel confirmed that “it’s being
dismissed and refiled right now” and argued that the case should be
dismissed with prejudice.9
Defense counsel reminded the court that
it had denied the State’s motion to continue the previous day and
set the 2008 case as a priority trial to accommodate the defense’s
expert.
Defense counsel then argued:
Mr. Kelly ignored your order, went to Commissioner
Newell’s courtroom yesterday and picked a jury in a case
that was set on his motion[ 10] and started that case.
And then at 4:30 I received a motion to con -– motion to
dismiss yesterday afternoon, was being E-filed, and now
it’s being re-filed this morning.
This is clearly a
violation of my client’s right to due process and clearly
a violation of his speedy trial right, when we were told
by Your Honor specifically that we were to start today.
9
That day, a grand jury issued a new indictment, again charging
Jackson with two counts of armed robbery, each a class two
dangerous felony (Counts I and II), as well as two counts of
kidnapping, each a class two dangerous felony (Counts III and IV),
two counts of aggravated assault, each a class three dangerous
felony (Counts V and VI), and one count of burglary in the first
degree, a class two dangerous felony (Count VII), based on the
events that allegedly occurred on October 22, 2008. The case was
assigned cause no. CR2009-030788-001SE in the Maricopa County
Superior Court (“the 2009 case”).
10
The record does not support defense counsel’s avowal that the
Careaga case was re-set on the prosecutor’s motion.
10
My client is 17 years old[ 11] and he’s been in
custody for over a year. It’s bad faith on the part of
the State, Your Honor, to blatantly ignore your order and
dismiss and re-file, to try and circumvent Rule 8.
The court denied the State’s motion to dismiss without prejudice
and assigned the case to Judge Glenn Davis to begin trial that day.
¶17
Later that morning, the court (Judge Ryan) was advised
that Judge Davis was not available for trial.
At a subsequent
status conference, the prosecutor (Mr. Kelly) requested that the
court
reconsider
the
State’s
motion
to
dismiss.
The
court
acknowledged the prosecutor’s dilemma but denied the State’s motion
to reconsider:
MR. KELLY:
Judge, I would like
reconsider my motion this morning. I am
trial in front of Commissioner Newell. I
for trial there last Thursday, we started
We are still in trial. I cannot try two
same time.
to have you
currently in
was assigned
last Friday.
cases at the
THE COURT: You can’t but this was a trial set up by
Judge Ronan where there was an out-of-state witness
flying in and a date certain that the trial was supposed
to go forward yesterday as scheduled.
There were
additional complications that were happening that we
continued to today. So for those reasons I denied the
motion to dismiss without prejudice.
I can understand you can’t do two trials at once; I
never had expected you to do that. However, as every one
[sic] is aware, in the county attorney’s office since I
worked there, and long before I worked there and since
that time, sometimes you have trial conflicts that can’t
be resolved because you’re in trial and that is when
other attorneys in your office step up and assist and
take a trial if they are not in trial.
11
Jackson’s eighteenth birthday occurred on December 6, 2009.
11
MR. KELLY: That is what I tried to do yesterday
after we were here and that didn’t happen and that is why
I filed the motion to dismiss.
THE COURT: I understand, Mr. Kelly. But there is
literally several hundred witnesses –- I’m sorry -–
several hundred attorneys in your firm to handle this
trial. So the fact that no one stepped up doesn’t mean
that they are not available. So that’s why I denied the
motion to dismiss without prejudice at this time.
And also there was a material omission of fact, when
we were talking about this case yesterday, when I wasn’t
advised, that there was a probable cause determination
that would take place in this trial today.
I wasn’t
advised of that.
MR. Kelly:
Judge, I understand that and I
understand the defense’s perspective. I was supposed to
finish the trial last week but for not being placed until
this week and that’s why I tried to set it this week so –
THE COURT:
Your motion for reconsideration is
respectfully denied.
The court placed the matter with Judge Sam J. Myers to begin trial
that day, advised the prosecutor that he could re-urge the motion
with Judge Myers, and further advised that “we will not be ordering
a jury today so we will defer to Judge Myers to work out the trial
schedule with counsel.”
¶18
At a hearing before Judge Myers later that day, the
prosecutor re-urged his motion to dismiss and advised the court of
the conflict that had been created due to the late re-scheduling of
the trial in the Careaga case.
The prosecutor explained that the
Careaga trial had been continued from November 9 and re-set on
Thursday, November 12, for trial on Monday, November 16.
He
further explained that, after trial in the Careaga case had been
12
rescheduled, he went back to his office but could find no one else
who could take the 2008 case, so he immediately filed a notice of
conflict, which was denied, and then filed a motion to dismiss
without prejudice, which had been denied with leave to re-urge the
motion.
¶19
Defense counsel argued the case should be dismissed with
prejudice because (1) she had arrived early the previous morning
for calendaring, and by the time the prosecutor arrived, there was
no more court availability for that day; (2) the defense had “a
very small window” of availability for its expert; and (3) Jackson
had “been in custody for over a year” and asking him to choose
between going to trial before the last day without his witness or
waiving additional time until his expert could testify was “no
choice at all,” especially given his age.
maintained
that
the
prosecutor
had
Defense counsel further
“willfully
withheld
[]
information from Judge Ryan yesterday” because, after the court
denied his motion to continue, the prosecutor had not disclosed
that he planned to continue with the Careaga trial and “pick a jury
in front of Commissioner Newell.”
Defense counsel further avowed
that “Mr. Kelly didn’t tell, as far as I know, did not tell
Commissioner Newell about the problem with my case in front of
Judge Ryan,” and maintained that just because the prosecutor’s
“schedule is overwhelmed” was no reason to “disregard” the court’s
13
ruling
denying
a
continuance
and
seek
a
dismissal
without
prejudice.
¶20
The prosecutor explained that the basis for his dismissal
request was his “unavailability to try the case when it is being
set” and, from the State’s perspective, the case could likely be
tried within the time limits because “the problem is this week.”
He further avowed that he had mentioned the trial conflict in his
motion and had spoken with Commissioner Newell about the situation,
and “she had told me she was going to contact Judge Ryan.”
He also
noted that dismissal did not prevent the defense “from presenting
the same defense that they want to present.”
¶21
The trial court (Judge Myers) granted the State’s motion
to dismiss and took the issue of prejudice under advisement.
After
discussing the matter with Judge Ryan, the court ordered that Judge
Ryan would rule whether the dismissal should be with prejudice
following written briefing by the parties.
The court also ordered
that Jackson be released from custody as to the 2008 case but
denied his motion for release on the newly filed charges in the
2009 case.
¶22
support
On November 25, 2009, defense counsel filed a brief in
of
a
dismissal
with
prejudice,
arguing
that
the
prosecutor’s trial conflict was not good cause for requesting a
dismissal and the dismissal prejudiced Jackson because “he remains
in custody” and it was unclear when his expert witness would again
14
be available to testify.
Defense counsel maintained that the
motion to dismiss was “on its face” a violation of Rule 8.
¶23
The State responded that the length of time Jackson had
been incarcerated was largely due to the numerous requests for
continuance made on his behalf before trial in the 2008 case, and
the conflict was created by rescheduling of the Careaga trial,
which was a priority case that involved an in-custody defendant
charged with four felonies, three of them dangerous, and “involved
victims coming in from out of town.”
The State argued that, given
the conflict, the prosecutor simply could not proceed to trial, and
it had been “not possible or practical” for another attorney to
take one of the trials on such short notice, especially given the
“serious, violent crimes” involved.
The State also noted that both
the notice of trial conflict (motion for continuance) and the
motion to dismiss were filed “well before the last day,” and thus
Rule 8 time limits had not been violated, and the defense had been
unwilling to consider any continuation of the case, even within
time limits.
Additionally, the State maintained that its request
for a dismissal had not been made to harass Jackson or gain a
tactical advantage over him, and Jackson had suffered no actual
prejudice as a result of the delay because he had not shown that
his witness would be unavailable at a future date.
¶24
On December 11, 2009, defense counsel replied that the
State had gained a tactical advantage by having more time to
15
prepare for trial and that because the last day for trial in the
2008 case (December 5) had subsequently passed, the court should
deem Rule 8 to have been violated.
¶25
On January 19, 2010, the trial court (Judge Ryan) held
oral argument on the deferred motion to dismiss the 2008 case with
prejudice.
At the hearing, the court asked the prosecutor why he
had not sought another attorney to try the 2008 case when he
realized a conflict existed, and the prosecutor replied that he had
contacted his bureau chief, who could find no one in his trial
division to take over the case.
The court appeared to accept the
prosecutor’s explanation at the time, stating:
an attorney.
I know you asked.
“And I know you as
I know [you] looked around.
know you talked to the bureau chief.
I
So I know it wasn’t an issue
of you saying, well, gosh, I have got a trial conflict.”
¶26
the
Nevertheless, after taking the matter under advisement,
trial
court
dismissed
the
2008
case
with
prejudice;
accordingly, the court also dismissed with prejudice Counts I and
II of the 2009 case.12
The State moved for reconsideration, and in
a minute entry dated February 1, 2010, the court denied the State’s
motion.
12
The court found that “the sole purpose of the Notice of
As the State notes, the trial court made no express finding
whether the dismissal with prejudice was “in the interests of
justice.” Compare State v. Granados, 172 Ariz. 405, 407, 837 P.2d
1140, 1142 (App. 1991), with Quigley v. City Court of City of
Tucson, 132 Ariz. 35, 36-37, 643 P.2d 738, 739-40 (App. 1982). See
also infra ¶ 36.
16
Trial Conflict and the Motion to Dismiss were to circumvent Arizona
Criminal Rule 8.” 13
¶27
On February 3, 2010, the State filed a notice of appeal
with regard to the trial court’s dismissal with prejudice of the
2008 case.
this court.
That appeal was assigned case no. 1 CA-CR 10-0114 in
Two days later, the State filed a notice of appeal
with regard to the dismissal with prejudice of Counts I and II in
the 2009 case.
¶28
That appeal was assigned case no. 1 CA-CR 10-0123.
On March 10, 2010, the parties filed a joint pretrial
statement in the 2009 case.
Defense counsel listed as one of its
witnesses the same expert witness on identification that the
defense had planned to use in the 2008 case.
That same day,
defense counsel filed a motion to dismiss the remaining counts of
the 2009 case on the basis of prosecutorial misconduct, arguing
that the prosecutor had engaged in vindictive prosecution and the
counts should be dismissed based on the events in the 2008 case.
The State opposed the motion to dismiss, arguing that Jackson was
trying to re-litigate the court’s February order that had only
dismissed the first two counts; Jackson had not established an
appearance of vindictiveness because the State had previously
advised him it was considering the additional charges; the State
should
13
not
be
penalized
because
the
Careaga
trial
had
been
The court also found that the prosecutor arrived late on
November 16 and 17, 2009, and, in a footnote, found that had the
prosecutor arrived on time on November 16, the matter would have
been placed for trial that day.
17
rescheduled due to court unavailability, which resulted in the
conflict with the 2008 case; and Rule 8 had not actually been
violated.
¶29
On March 23, 2010, the trial court (Judge Ryan) heard
argument on the motion to dismiss.
Defense counsel argued that the
additional charges alleged in the 2009 case were based on the same
facts as in the 2008 case, should have been alleged in the 2008
case, and were subsequently being used by the State as a vindictive
measure to hold Jackson in jail longer and “persecute” him for
choosing to exercise his right to a trial.
The State argued that
trial in the 2008 case had to be continued due to the scheduling
conflict with the trial in the Careaga case, and that such a
conflict was not foreseeable at the time it arose.
The State
maintained it filed a notice of trial conflict as soon as it became
aware of the conflict, the last day wasn’t until December 5, 2009,
and the case could still have been tried within the time limits.
¶30
In a minute entry dated March 23, 2010, the trial court
dismissed the 2009 case with prejudice and ordered that Jackson be
released from custody.
In a subsequent minute entry dated March
30, 2010, the court provided a detailed explanation of its decision
to dismiss the 2009 case with prejudice.
The court’s findings
included the following:
The Court [] finds, in review of the record set
forth in this minute entry, that the assigned Deputy
County Attorney failed to provide thorough, competent
representation for the State, failed in his duties to
victims to handle the matter in a way that ensured a
18
speedy trial and a prompt and final conclusion of the
case, failed in his responsibilities as to his duty of
candor
to
opposing
counsel,
failed
in
his
responsibilities as to his duty of candor to the Court,
and failed in his responsibilities as a Minister of
Justice, and not just an advocate, pursuant to ER 3.8 of
the Arizona Rules of Professional Conduct.
. . . .
The Court finds, from the record, that the assigned
Deputy
County
Attorney
engaged
in
prosecutorial
misconduct warranting dismissal with prejudice. Even if
the Court did not so find, there is ample evidence to
infer a presumption of vindictive prosecution, which the
State has failed to rebut. Stated simply, the State has
proferred no good reason for its conduct, and the record
is riddled with numerous instances of misconduct, ranging
from the inadequate to the purposeful.
In Jackson I, the assigned Deputy County Attorney
failed.
He failed to appear at almost all of the
pretrial settings. He failed his office by refusing to
provide salient case information to court coverage. He
failed to meaningfully communicate information regarding
trial conflicts to the Courts and to opposing counsel.
He failed to comply with Court orders. Yet to date, the
State has owned up to none of its responsibilities for
such failures.
¶31
The State filed a timely notice of appeal from the order
dismissing all counts of the 2009 case, and that appeal was
assigned case no. 1 CA-CR 10-0289.
This court granted the State’s
motion to consolidate the appeals in case nos. 1 CA-CR 10-0114, 1
CA-CR 10-0123, and 1 CA-CR 10-0289.
Case no. 1 CA-CR 10-0114 was
designated the primary case number.
We have appellate jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9, and
A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4032(1)
(2010).
19
ANALYSIS
¶32
The State argues that the trial court’s orders dismissing
with prejudice the 2008 case and Counts I and II of the 2009 case,
and its order dismissing the remaining counts of the 2009 case,
were an abuse of discretion.
¶33
prejudice
We agree.
We review a trial court’s dismissal of a case with
and
its
disposition
of
a
claim
vindictiveness for an abuse of discretion.
of
prosecutorial
See generally State v.
Spreitz, 190 Ariz. 129, 136, 945 P.2d 1260, 1267 (1997); State v.
Brun, 190 Ariz. 505, 506, 950 P.2d 164, 165 (App. 1997); State v.
Gilbert, 172 Ariz. 402, 404, 837 P.2d 1137, 1139 (App. 1991).
In
general, a trial court abuses its discretion if the record fails to
provide substantial support for its decision or it commits an error
of law in reaching its decision.
State v. Cowles, 207 Ariz. 8, 9,
¶ 3, 82 P.3d 369, 370 (App. 2004).
¶34
Rule 8.6, Ariz. R. Crim. P., provides that if a court
determines a Rule 8 time limit has been violated, the court “shall
on motion of the defendant, or on its own initiative, dismiss the
prosecution with or without prejudice.”
Thus, Rule 8.6 makes clear
that, even when there has been an actual speedy trial violation
(something that did not occur here because the last day was
December 5, 2009 – eighteen days after the case was dismissed), a
dismissal with prejudice is not mandated.
See State v. Garcia, 170
Ariz. 245, 248, 823 P.2d 693, 696 (App. 1991).
20
Because that is
true, even if we accept the trial court’s finding that the State
was trying to “circumvent” Rule 8 time limits, we must also
recognize that “not every attempt to avoid an impending time limit
merits dismissal with prejudice.”
¶35
Id.
In the absence of a Rule 8 violation, we turn for
guidance to Rule 16.6, Ariz. R. Crim. P., which addresses the
dismissal of criminal charges.
See id.
Rule 16.6 provides, in
pertinent part, as follows:
a. On Prosecutor’s Motion. The court, on motion of the
prosecutor showing good cause therefor, may order that a
prosecution be dismissed at any time upon finding that
the purpose of the dismissal is not to avoid the
provisions of Rule 8.
. . . .
c. Record. The court shall state, on the record, its
reasons for ordering dismissal of any prosecution.
d. Effect of Dismissal.
Dismissal of a prosecution
shall be without prejudice to commencement of another
prosecution, unless the court order finds that the
interests of justice require that the dismissal be
without prejudice.
¶36
Thus, under Rule 16.6, dismissal without prejudice is
generally favored.14
14
See Quigley, 132 Ariz. at 36, 643 P.2d at 739.
Jackson argues that, because the trial court ultimately found
the State was trying to avoid the time limits of Rule 8, the court
erred in dismissing the 2008 case in the first place. See State v.
Paris-Sheldon, 214 Ariz. 500, 508, ¶ 23, 154 P.3d 1046, 1054 (App.
2007) (“[I]f the court concludes the state is attempting to avoid
Rule 8, the court must deny the motion to dismiss altogether.”
(citing Ariz. R. Crim. P. 16.6(a))).
Rule 16.6(a), however,
addresses only the prosecutor’s ability to dismiss criminal
charges. Trial courts have the inherent power (and under Rule 8.6,
the specific authority) to dismiss criminal charges, though there
21
When dismissing a case with prejudice, Rule 16.6(d) “requires a
reasoned
finding
that
the
interests
dismissal to be with prejudice.”
of
justice
require
the
Garcia, 170 Ariz. at 248, 823
P.2d at 696; accord Gilbert, 172 Ariz. at 404, 837 P.2d at 1139.
“This statement must be based on a particularized finding that to
do
otherwise
defendant.”
would
result
in
some
articulable
harm
to
the
State v. Wills, 177 Ariz. 592, 594, 870 P.2d 410, 412
(App. 1993) (holding “that the trial court’s perfunctory statement
that the ‘interests of justice’ required dismissal with prejudice”
was insufficient to constitute a reasoned finding).
¶37
In the context of speedy trial violations, “courts have
concluded that the interests of justice require dismissal with
prejudice only when the prosecutor has delayed in order to obtain a
tactical advantage or harass the defendant and the defendant has
demonstrated resulting prejudice.”
State v. Huffman, 222 Ariz.
416, 420, ¶ 11, 215 P.3d 390, 394 (App. 2009) (citations omitted);
accord Garcia, 170 Ariz. at 248, 823 P.2d at 696; see also State ex
rel. Jenney v. Superior Court, 122 Ariz. 89, 90, 593 P.2d 312, 313
(App. 1979) (recognizing “that the court, prior to dismissing a
criminal case, [must] properly balance the conflicting interests
involved, society’s and the defendant’s, in deciding whether to
make the dismissal with or without prejudice”).
are limitations on when they may dismiss with prejudice.
See,
e.g., State v. Hannah, 118 Ariz. 610, 611, 578 P.2d 1039, 1040
(App. 1978).
22
¶38
The most important consideration in deciding whether a
dismissal should be with or without prejudice is whether delay will
actually prejudice the defendant.
Granados, 172 Ariz. at 407, 837
P.2d at 1142 (citation omitted); see also In re Arnulfo G., 205
Ariz. 389, 391, ¶ 9, 71 P.3d 916, 918 (App. 2003) (“The type of
harm that will justify dismissal with prejudice is a harm that
would actually impair the accused’s ability to defend against the
charges.” (citation omitted)).
¶39
In this case, the record does not support a conclusion
that Jackson was prejudiced by the dismissal of the 2008 case.
Defense counsel’s speculative claim that the defense’s expert
witness might not be available at a later date was insufficient to
establish actual prejudice, see, e.g., State v. Youngblood, 173
Ariz. 502, 507, 844 P.2d 1152, 1157 (1993), and was belied at least
in part by the expert witness’s subsequent inclusion in the March
10, 2010 joint pretrial statement.
We find no indication that the
dismissal impacted Jackson’s ability to defend against any charges
(including those in the 2009 case) or to present the same defense
he had contemplated.
¶40
Jackson’s continued imprisonment due to his inability to
make bail also did not establish the actual prejudice necessary for
a dismissal with prejudice.
See State v. Pruett, 101 Ariz. 65, 69,
415 P.2d 888, 892 (1966); State v. Soto, 117 Ariz. 345, 348, 572
P.2d 1183, 1186 (1978); see also State ex rel. DeConcini v.
23
Superior Court (Apodaca), 25 Ariz. App. 173, 175, 541 P.2d 964, 966
(1975)
(recognizing
generally
that
insufficient
to
annoyance
establish
or
financial
burden
prejudice).
The
are
record
indicates that Jackson was in jail throughout pendency of the
proceedings due to his inability to post the secured bond, which
the court set at $250,000 due to the severity of the alleged crimes
and Jackson’s alleged prior criminal history.
Further, on numerous
occasions the last day was set back and the start of trial delayed
due to continuances requested by and granted to accommodate the
defense. 15
The record makes clear that dismissal of the 2008 case
did not actually prejudice Jackson, and any delay in setting and
commencing trial in that case was occasioned at least as much by
the inflexibility of the defense (and the court itself) as by any
actions of the prosecutor.
¶41
Because
Jackson
failed
to
establish
that
legally
cognizable prejudice would ensue if the charges were dismissed
without prejudice, the trial court erred in dismissing the criminal
charges in the 2008 case (and Counts I and II of the 2009 case)
with prejudice.
inability
to
meet
The State sought dismissal due to a likely
the
speedy
trial
deadline,
and
Jackson’s
arguments that he might not be able to produce his witness and
15
Before the actual trial conflict resulting from the events of
November 2009, the State had requested only one continuance.
Further, defense counsel had previously indicated a willingness to
“file a motion to continue until after the last day” to accommodate
scheduling of the expert witness if necessary.
24
would probably have to continue to sit in custody because charges
were re-filed and he would be unable to post bond are speculative
claims insufficient to establish prejudice.
¶42
We also note that the court’s findings in its orders, and
particularly its March 30, 2010 order regarding dismissal of the
remaining counts in the 2009 case, are not fully supported by the
record, and we express concern that numerous inconsistencies exist
between the record and the facts found and inferences drawn by the
court;
in
fact,
some
of
contradicted by the record.
the
court’s
findings
are
clearly
For example, trial in the Careaga case
was delayed not by the prosecutor (as defense counsel in the 2008
case claimed), who the record reflects was prepared for trial in
that case, but by court unavailability, which caused that trial to
be set back on at least three occasions.
Nonetheless, the court’s
order sharply criticized the prosecutor for his failure to inform
the court as early as November 2, 2009, of the conflict between the
trial dates of the Careaga and 2008 cases.16
The court noted that,
as of November 2, the Careaga trial was set for November 9 and the
2008 case was set for November 16, 2009.
According to the joint
pretrial statement filed in the Careaga case, trial in that case
was expected to last four days, and the court calculated that,
because Wednesday, November 11, was a holiday, a four-day trial
16
The court also criticized the prosecutor for failing to
mention the conflict at the October 5, 2009 trial management
conference in the Careaga case, but as we explain subsequently, the
record makes clear that no conflict existed at that time.
25
taking place on November 9, 10, and 13 would necessarily carry over
to and conflict with the 2008 trial, which was set to commence on
November 16.
The court’s order, however, ignores the existence of
Thursday, November 12, which would have supplied the fourth day of
the Careaga trial so that, as of November 2, that trial would not
have conflicted with trial in the 2008 case.
Accordingly, the
court’s finding that the prosecutor “sat on [his] hands and said
nothing” and ignored his affirmative obligation to inform the court
of a conflict as of November 2 is not supported by the record.
¶43
Further, even after trial in the Careaga case was set
back to November 10 due to the unavailability of the master
calendar assignment judge, the prosecutor might reasonably have
believed that, even if the Careaga trial lasted four days, coverage
counsel could have covered either the last afternoon of the Careaga
trial (if it only involved instructions and return of verdict) or
jury selection on the first day of the 2008 trial.
Although we
express concern that the prosecutor apparently did not immediately
notify the court of an impending conflict after the Careaga trial
was again continued on November 10, and instead waited until an
actual conflict was created on November 12 by rescheduling of the
Careaga case for November 16, we do not view such a failure as
warranting dismissal of the 2008 case with prejudice.17
17
As we have
In fact, given the record in this case, it appears that
continuances based on a lack of court resources to handle the
burgeoning case volume in the superior court were so commonplace as
to almost become expected by counsel and the court itself. As of
26
noted, the prosecutor avowed that, before filing the notice of
trial conflict (motion for continuance), he discussed the matter
with his bureau chief, and before seeking dismissal of the 2008
case, he discussed the matter with Commissioner Newell, the Judge
Pro Tem in the Careaga case, who had indicated she would discuss
the matter with Judge Ryan. 18
We also note that the Careaga case
had been designated a priority case by no later than October 5,
2009, and counsel in that case had been warned it would “not be
continued for any other trial conflicts,” whereas the court did not
designate the 2008 case as a priority case until November 16, after
the prosecutor’s notice of trial conflict (motion for continuance)
had been denied. 19
August 29, 2011, the Maricopa County Superior Court’s website
states that more than 28,000 criminal cases are filed in the
county’s superior court each year, with “a 90% increase in felony
cases filed in Superior Court” over the past decade.
See
www.superiorcourt.maricopa.gov/SuperiorCourt/CriminalDepartment.
18
The trial court’s orders and record do not reflect whether
such a discussion subsequently occurred. Section IV of the Rule 8
Guidelines adopted by the Maricopa County Criminal Department
Judges provides that, in the event an attorney cites a calendar
conflict as grounds for a motion to continue, the judge hearing the
motion “should consult the lawyers and the judge presiding over the
conflicting case to ascertain whether, in fact, an actual conflict
exists.” In the event of such a conflict, the Guidelines provide
that “the judges assigned to the cases should consult one another
and decide the case to be tried taking into consideration the age
of the cases, the nature of the charges, the custody status of the
defendants and any other relevant factors.”
19
As we have recognized, in arguing against the motion to
continue on November 16, defense counsel acknowledged the 2008 case
had been sent downtown because Judge Ronan determined it “did not
take precedent” over the other cases before him at the time.
27
¶44
The
trial
court
was
also
highly
critical
of
the
prosecutor for his failure to interview the defense’s expert
witness before trial, stating at the March 23 oral argument that
the prosecutor “hadn’t done the interview ordered by the courts, or
that were presumed to be done by the time limits” and intimating
the
prosecutor’s
motion
to
dismiss
was
motivated
by
his
unpreparedness for trial and a resultant tactical interest in
delaying the trial.
In its March 30 minute entry, the court stated
that the prosecutor was on notice that the need to interview a
defense expert was not a basis to continue trial, and the court
concluded that, in seeking a trial continuance, the prosecutor
concealed from the court that he had not yet interviewed the
defense’s expert witness.
Specifically, the court found that the
prosecutor’s failure to interview the expert witness supported the
conclusion “that there was a purposeful concealment of facts and
information that the assigned Deputy County Attorney was obligated
to present.”
¶45
Although we do not find in the record that the prosecutor
ever sought to interview the expert witness, we also do not find a
court order or other requirement that he do so, any indication his
failure to do so was a tactical error he expected to impact his
case, or any indication that this issue was raised as a basis to
continue trial.
Moreover, we express perplexity as to why the
court raised and relied on this allegation for the first time at
28
the March 23 oral argument, especially when it was not raised by
the defense and the inference drawn was not fully supported by the
record.
There are simply no demonstrable facts in the record that
support the trial court’s finding that the prosecutor was seeking,
or in fact that he gained, a tactical advantage by delaying the
trial because he had not yet interviewed the defense’s expert
witness. 20
¶46
Jackson argues on appeal that the prosecutor sought to
gain a tactical advantage by delaying the trial because “[i]t is
obvious that the State did not want a prosecutor not familiar with
the case to have to try it.”
Even assuming Jackson is correct as
to the motive ascribed, the strategy was not an attempt to gain a
tactical advantage so much as an attempt to avoid a tactical
disadvantage.
See State v. Ferguson, 120 Ariz. 345, 347, 586 P.2d
190, 192 (1978) (concluding that a defendant was not deprived of
his speedy trial rights where a delay in trial occurred because the
prosecutor was trying another case and the State argued the case
was too complicated for another prosecutor to try on such short
notice); State v. Mendoza, 170 Ariz. 184, 194, 823 P.2d 51, 61
(1992)
20
(recognizing
that
the
unavailability
of
the
assigned
Furthermore, as we have noted, defense counsel and the court
recognized at the November 16 conference that, because Judge Ronan
had not ruled on the motion to suppress, the issue would have to be
addressed before trial, and “a full evidentiary hearing” might
again have to be held before trial in the 2008 case could begin.
Thus, some delay in the start of trial was likely inevitable in any
circumstance. (Also, by the time the 2008 case was assigned to
29
prosecutor may amount to an extraordinary circumstance meriting an
excludable delay in the interests of justice); cf. State v. Schaaf,
169 Ariz. 323, 328, 819 P.2d 909, 914 (1991) (recognizing that the
absence of key court personnel may constitute an extraordinary
circumstance for purposes of Rule 8).
See also State v. Toney, 553
A.2d 696, 703 (Md. 1989) (“We think that the State’s interest in
maintaining prosecutorial continuity is a significant interest
which
in
some
instances
postponement . . . .”).
may
qualify
as
good
cause
for
a
Further, Jackson has not demonstrated, and
the record does not support the conclusion, that the State acted in
bad faith or intentionally delayed trial in the 2008 case to gain a
tactical advantage.
¶47
See Garcia, 170 Ariz. at 248, 823 P.2d at 696.
The trial court’s March 30 minute entry also criticizes
the prosecutor for multiple discovery violations; a failure to
appear
at
numerous
conferences;
habitual
lateness,
presumably
causing the case to often be called long after the time it was
scheduled; and a failure to communicate with the alleged victims in
the case.
There exists little support in the record, however, for
the court’s criticism.
Any discovery issues were resolved early in
the case, and they were not argued by the defense as a basis for a
dismissal with prejudice.
Further, the record reflects that both
the prosecution and the defense used coverage counsel throughout
pendency of the case, and we hardly see the need to criticize the
Judge Myers, the record reflects that jury selection could have
begun no earlier than November 18 due to court availability.)
30
prosecutor
for
conferences,
prosecutor
employing
when
for
the
not
coverage
court
utilizing
at
the
such
counsel
same
at
time
counsel
as
brief
status
criticized
a
the
last-minute
replacement to cover trial in one of the two conflicting cases.
Additionally, whether the prosecutor was actually late to the
various pretrial conferences is generally not reflected in the
record, and the record does not support the court’s insinuation
that the use of coverage counsel caused numerous conferences to be
reset. 21
Finally, in its motion to dismiss, the State avowed that
it had complied with all victims’ rights requirements, and despite
the trial court’s subsequent finding to the contrary, we find
nothing in the record to dispute that avowal.
¶48
The trial court also apparently agreed with defense
counsel’s argument that filing of the 2009 case was presumptively
vindictive.
21
In its March 30 minute entry, the court found that
For example, the court found, “On January 6, 2009, the Trial
Judge met with attorneys regarding this case. The assigned Deputy
County Attorney was not present, and the matter, originally
scheduled for 8:30 a.m., was not called until 10:31 a.m.”
The
clear insinuation and inference to be drawn from the context of
this passage and others surrounding it is that the prosecutor was
the cause of the delay.
The transcript of the January 6
proceedings does not explicitly state the reason for the delay;
however, it makes clear that, although coverage counsel appeared
for the State, defense counsel failed to timely appear. In the
transcript, apparently late-arriving coverage counsel for the
defense advises the court that “we’ve not been able to get a hold
of [Jackson’s] attorney of record,” and that “[i]t’s my
understanding he’s with the Public Defender’s Office downtown.”
After a discussion regarding the whereabouts of defense counsel,
the court states, “[w]ell, he’s not here,” continues the conference
to January 28, 2009, and excludes time for the continuance “because
it is occasioned by the defense counsel.”
31
“using the identical investigation . . . the State added additional
felony counts, which the State concedes could have been filed over
one year earlier on November 7, [2008],” and “it is clear that the
decision to dismiss and file with additional charges came only
after the State’s Motion to Continue was denied.”
Although we
express some concern at the timing of the State’s decision to add
charges, the trial court’s findings alone simply do not support
finding that filing of the 2009 case was presumptively vindictive.22
¶49
As a basic principle, the State may not retaliate against
a person “for exercising a protected statutory or constitutional
right.”
United States v. Goodwin, 457 U.S. 368, 372 (1982).
Because “[t]he imposition of punishment is the very purpose of
virtually all criminal proceedings,” however, a punitive motivation
alone cannot distinguish justifiable governmental conduct from an
impermissible governmental response to a defendant’s protected
activity,
limited
and
to
the
“cases
presumption
in
vindictiveness exists.”
which
of
a
vindictiveness
reasonable
Id. at 372-73.
is
therefore
likelihood
of
Thus, “the mere fact that
a defendant refuses to plead guilty and forces the government to
prove its case is insufficient to warrant a presumption that
subsequent changes in the charging decision are unjustified.”
at 382-83.
Id.
Further, “a mere opportunity for vindictiveness is
insufficient to justify the imposition of a prophylactic rule.”
22
We also note that Jackson has never suggested the underlying
facts as alleged do not support the additional charges.
32
Id. at 384.
Courts in Arizona should consider the totality of the
circumstances, including whether a change in the charging decision
has occurred pretrial or post-trial, in evaluating whether to apply
a presumption of prosecutorial vindictiveness.
See State v. Mieg,
225 Ariz. 445, 448-49, ¶¶ 15-16, 18, 239 P.3d 1258, 1261-62 (App.
2010) (recognizing that “it would ill-serve the public good to
penalize the state when a prosecutor chooses not to bring all
conceivable charges at the outset” (citing Goodwin, 457 U.S. at 382
n.14)).
¶50
In this case, the record demonstrates that the additional
charges had long been contemplated by the State.
At the time of
his settlement conference, Jackson was informed of and acknowledged
the possibility that additional charges would be brought if he did
not enter a guilty plea.
Further, the State sought dismissal of
the 2008 case because a direct trial conflict existed and the
prosecutor’s request for a continuance had been denied.
¶51
In its order, the trial court also found “that the flawed
decision-making demonstrated by the State in this case is identical
to the decision-making process in State v. Tsosie, 171 Ariz. 683,
832 P.2d 700 (App. 1992), that warranted dismissal with prejudice.”
In Tsosie, the defendant obtained a dismissal without prejudice
after he successfully invoked his right to a speedy trial, and the
trial court dismissed the re-indictment of the defendant on more
serious
charges
upon
applying
a
33
presumption
of
prosecutorial
vindictiveness.
affirmed.
Id. at 684-85, 832 P.2d at 701-02.
Id. at 688, 832 P.2d at 705.
Tsosie directly applicable.
This court
We do not, however, find
In this case, Jackson was warned of
the possibility of additional charges during plea negotiations,
whereas
the
facts
of
Tsosie
provide
no
indication
that
the
defendant in that case was ever warned of the possibility of
increased charges.
Furthermore, unlike Tsosie, no actual Rule 8
violation occurred in this case.
701-02.
See id. at 684-85, 832 P.2d at
Under the circumstances present, we do not agree with
Jackson that the record supports the conclusion the State acted in
a
presumptively
vindictive
fashion
by
bringing
previously
contemplated charges when Jackson was re-indicted in the 2009 case.
¶52
Because
Jackson
failed
to
demonstrate
the
necessary
prejudice for a dismissal with prejudice, we conclude that the
trial court abused its discretion in dismissing the 2008 case and
Counts I and II of the 2009 case with prejudice.
Further, because
the trial court’s orders are not fully supported by the record, we
conclude that the court abused its discretion in dismissing the
remaining counts of the 2009 case with prejudice.
CONCLUSION
¶53
We recognize the difficult task faced by the superior
court in scheduling and managing the numerous trials within its
system.
This case highlights the confusion that can result from an
overcrowded court system designed to push cases off from one
34
division of the court to another and from one judge to another in
an effort to deal with an ever-burgeoning caseload.
Based on the
record, it appears that the problems in this case resulted at least
as much from a lack of court resources and inflexibility on the
part of defense counsel as from the actions of the prosecutor.
Given the fact that Rule 8 was not actually violated and the case
might still have been tried within time limits, the lack of
prejudice demonstrated by Jackson, the lack of demonstrable bad
faith or improper motives by the prosecutor, and the lack of
support for many of the trial court’s findings, we conclude that
the trial court abused its discretion in dismissing the criminal
charges against Jackson with prejudice.
Consequently, we vacate
the dismissal with prejudice of the charges against Jackson and
remand to the trial court with instructions to dismiss the 2008
charges without prejudice and to reinstate the 2009 charges against
Jackson.
_______________/S/__________________
LAWRENCE F. WINTHROP, Chief Judge
CONCURRING:
_______________/S/________________
MICHAEL J. BROWN, Judge
______________/S/_________________
PETER B. SWANN, Judge
35
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