STATE v. DERIENZO

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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 DIVISION ONE FILED: 10/22/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellant, ) ) v. ) ) DANIEL JOSEPH DERIENZO, ) ) Appellee. ) ) ) 1 CA-CR 13-0117 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. P1300CR201300070 The Honorable Cele Hancock, Judge VACATED AND REMANDED Sheila Sullivan Polk, Yavapai County Attorney By Cody W. Johnson, Deputy County Attorney Attorneys for Appellant Law Office of Daniel DeRienzo, P.L.L.C. By Daniel J. DeRienzo Attorney for Appellee Prescott Prescott Valley N O R R I S, Judge ¶1 court s Appellant order State dismissing of a Arizona misdemeanor against Appellee Daniel Joseph DeRienzo. appeals the criminal superior prosecution As we explain, the superior court Accordingly, we should not vacate the have dismissed dismissal and the prosecution. remand for further proceedings consistent with this decision. FACTS AND PROCEDURAL BACKGROUND ¶2 an The Prescott Valley Police Department issued DeRienzo Arizona Traffic Ticket and Complaint for allegedly committing misdemeanor criminal damage in violation of Arizona Revised Statutes ( A.R.S. ) section 13-1602(A)(1) (2010). DeRienzo appeared in Prescott Justice Court for arraignment on December 12, 2012 and entered a not guilty plea. A prosecutor was not present at the arraignment ( justice court case ). Five days later, on December 17, 2012, DeRienzo filed a Notice of Defenses/Rule 15.2 Disclosure and a motion for change of judge. Neither the State. On notice nor December the 26, motion 2012, reflected the service justice court on the granted DeRienzo s motion for change of judge. ¶3 agreement. On January 8, 2013, the State offered DeRienzo a plea The justice court held a pretrial conference on January 14, 2013; DeRienzo and a prosecutor from the Yavapai County Attorney s Office appeared. DeRienzo informed the court he had rejected the plea offer and intended to file a motion to determine counsel based on what he alleged was a conflict of interest with the Yavapai County Attorney s Office. 2 The justice court agreed to address the motion at a pretrial conference it scheduled for February 11, 2013. ¶4 On January 18, 2013, the State moved to dismiss the justice court case without prejudice transferred to Superior Court. because it ha[d] been The State mailed a copy of its motion that same day to DeRienzo. The justice court granted the motion on January 22, 2013 and on January 24, 2013 mailed a copy of the dismissal order to the State but not to DeRienzo. ¶5 On the same day the State moved to dismiss the justice court proceeding, it re-filed the case in the superior court ( superior court case ). DeRienzo moved to dismiss asserting, as relevant here, the State had filed the superior court case because it feared the justice court might remove the State from the justice court case when it heard his motion to determine counsel and was, thus, improperly forum shopping. The State did not respond to the motion. ¶6 At a February 5, 2013 early disposition hearing, the superior court did not directly address DeRienzo s motion, but, after confirming the general procedural history of the justice court case with the State, dismissed the superior court case without prejudice to the State re-filing it in justice court. The superior court denied the State s motion to reconsider, reasoning, [t]he case was pending for over a month in City Court [sic]. As the case was originally filed in the Prescott 3 City Court [sic], that is where the case started and should remain. DISCUSSION ¶7 The State argues the superior court should not have dismissed the superior court case because, by statute and rule, it may file misdemeanor actions in the superior court. See generally A.R.S. § 12-123(A) (Supp. 2012) (superior court has original and concurrent jurisdiction with justices of the peace of misdeamenanors when penalty does not exceed $2500 fine or six months imprisonment); Ariz. R. Crim. P. 2.1(a) actions may be commenced in superior court). (misdemeanor On this record, we agree. ¶8 By rule superior court and may State s objection. pursuant dismiss a to its inherent criminal authority, prosecution over a the State v. Huffman, 222 Ariz. 416, 420, ¶ 10, 215 P.3d 390, 394 (App. 2009); Ariz. R. Crim. P. 16.6(b) and comment legal thereto (court insufficiency may and on dismiss any criminal ground prosecution recognized by for law ). When, as here, it does so, we review for an abuse of discretion. See State v. Jones, 222 Ariz. 555, 558, ¶ 9, 218 P.3d 1012, 1015 (App. 2009). A court abuses its discretion when the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice. 135 Ariz. 281, 297, n. 18, 660 4 P.2d State v. Chapple, 1208, 1224 (1983), superseded by statute on other grounds (citation omitted). And, a court abuses its discretion when it erroneously applies or interprets a rule of law. State v. Gonzalez, 216 Ariz. 11, 12, ¶ 2, 162 P.3d 650, 651 (App. 2007). ¶9 that Arizona courts have recognized a variety of situations would justify a court s dismissal objection -- of a criminal prosecution. -- over the State s In addition to the reasons for dismissal recognized under Arizona Rule of Criminal Procedure 16.6(b) and the comment to that rule, dismissal may be warranted when there has been prosecutorial misconduct, State v. Young, 149 Ariz. 580, 586, 720 P.2d 965, 970 (App. 1986); a due process violation, id. at 586, 720 P.2d at 971; bad faith by the prosecutor or acts prejudicial to the defendant, c.f. State v. Superior Court, 137 Ariz. 534, 536, 672 P.2d 199, 201 (App. 1983); or a facially invalid claim. State v. Curtis, 185 Ariz. 112, 114, 912 P.2d 1341, 1343 (App. 1995), disapproved of on other grounds, Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002). Although these situations vary, they share a common characteristic -- absent dismissal, continuation of the case would be contrary to the interests of justice. ¶10 Here, in dismissing the case, the superior court did not find any legal insufficiency, prosecutorial misconduct, a due process violation, bad faith by the prosecutor, acts prejudicial to DeRienzo, or the assertion of a facially invalid 5 claim. Instead, it dismissed the case because it had initially been filed in the Prescott City Court and had been pending there for over a month. These reasons do not, as a matter of law, warrant dismissal; they are not analogous or similar to the grounds for dismissal recognized in Arizona. Although DeRienzo accuses the State of misconduct in filing the superior court case, the superior court did not make any such finding. 1 ¶11 Further, as noted above and as the State emphasizes on appeal, it is entitled to pursue misdemeanor prosecutions in the superior court, and indeed, in general, dismissal of a prosecution is without prejudice to the commencement of another prosecution -- which is what happened here. Moreover, [t]he duty and discretion to conduct prosecutions for public offenses rests with the county attorney. State v. Murphy, 113 Ariz. 416, 418, 555 P.2d 1110, 1112 (1976) (citations omitted). absence of a reason that would warrant dismissal In the of a prosecution, it is within the sound discretion of the State to decide whether a misdemeanor charge either justice or superior court. 1 should be prosecuted in On this record, therefore, Most, if not all, of the improprieties DeRienzo alleges pertain to the dismissal of the justice court case. DeRienzo did not, however, challenge dismissal of the justice court case either through a motion for reconsideration or by special action. See generally State v. Paris-Sheldon, 214 Ariz. 500, 508, ¶ 23, 154 P.3d 1046, 1054 (App. 2007). 6 the superior court should not have dismissed the superior court case. CONCLUSION ¶12 For the foregoing reasons, we vacate the superior court s order dismissing the prosecution against DeRienzo and remand for further proceedings consistent with this decision. /s/ PATRICIA K. NORRIS, Judge CONCURRING: /s/ PETER B. SWANN, Presiding Judge /s/ ANDREW W. GOULD, Judge 7

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