CHOLLAMPEL v. HON MCCLENNEN/HON ANDERSON/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 JOSEPH CHOLLAMPEL, ) ) Petitioner, ) ) v. ) ) THE HONORABLE CRANE MCCLENNEN, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of MARICOPA, and THE ) HONORABLE MARK ANDERSON, Judge ) of the WEST MESA JUSTICE COURT ) OF THE STATE OF ARIZONA, in and ) for the County of ) MARICOPA, ) ) Respondent Judges, ) ) STATE OF ARIZONA, ) ) Real Party in Interest. ) __________________________________) DIVISION ONE FILED: 2/28/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-SA 13-0033 DEPARTMENT A Maricopa County Superior Court No. LC2011-122716-001DT West Mesa Justice Court No. TR2011122716 DECISION ORDER Joseph Chollampel (Petitioner) filed a Petition for Special Action challenging the superior court s ruling that his right to counsel was not violated. We are asked to determine whether the superior court abused its discretion in issuing the ruling in light of existing legal authority. This Court, Judge Patricia A. Orozco presiding and Judges Peter B. Swann and Lawrence F. Winthrop participating, has considered the Petition for Special Action, as well as the State s Response to Petition for Special Action. For the following reasons, we accept jurisdiction, grant relief and remand so that the justice court may determine whether the violation impeded Petitioner s ability to gather exculpatory evidence. FACTUAL AND PROCEDURAL BACKGROUND At approximately 1:52 a.m., on May 6, 2011, Salt River Police Officer J. (Officer J.) observed enter the State Route 101 freeway. Petitioner s Suspecting the driver was impaired, Officer J. stopped the vehicle. driving placed under the Petitioner influence under (DUI) arrest vehicle After conducting the investigation, for DUI. After Officer his J. arrest, Petitioner requested that Officer J. speak with his passenger, Marcus (Passenger), Officer Passenger J. obliged said he with regards Petitioner s did not to contacting request have a but an attorney. testified telephone number that for an attorney, but his father was a policeman. After Officer J. informed have Petitioner that Passenger did not a telephone number for an attorney, Petitioner requested that Officer J. ask Passenger again. After a second attempt, Officer J. told Petitioner that Passenger did not have a telephone number for an attorney and that Petitioner could attorney at the police station. 2 attempt to contact an At 2:55 a.m., Officer J. arrived at the police station with Petitioner. Officer J. proceeded to search for a phonebook but was unable to find one. As a result, Officer J. told Petitioner to dial 4-1-1 and ask the directory assistance operator for a minimum of Petitioner three telephone followed Officer numbers J. s for DUI instructions; attorneys. however, the operator told Petitioner that she did not have the attorneys specifically categorized as DUI attorneys but could give him the names of attorneys. After the operator provided Petitioner with telephone numbers for three attorneys, Petitioner called each number between voicemail. providing 3:00 and 3:05 a.m., but each call went to Petitioner left a message explaining his arrest and his cell phone number and the station s call-back number. Although Officer J. testified that he would have allowed Petitioner to use the telephone again, Petitioner did not ask to use the telephone between 3:05 and 3:18 a.m. At 3:18 a.m., after Petitioner refused to take a blood alcohol content (BAC) test unless he spoke with an attorney, Officer J. proceeded to obtain a search warrant. Officer J. testified that, in his experience, obtaining a warrant took between an hour and an hour and fifteen minutes. At 3:25 a.m., Officer J. transported Petitioner to the main police station in order to obtain the search warrant. Finally, at 4:59 a.m., Officer J. directed a 3 blood draw for the BAC test because waiting any longer would have interfered with the DUI investigation. Petitioner was charged with and convicted of DUI. At trial, the justice court denied Petitioner s motion to dismiss, which alleged that Officer J. violated Petitioner s right to counsel. On appeal, the superior court affirmed Petitioner s conviction and concluded that the justice court properly denied Petitioner s motion to dismiss. JURISDICTION This Court has jurisdiction pursuant to Arizona Statutes (A.R.S.) section 12-120.21.A.4 (2003). jurisdiction is highly discretionary there is no adequate remedy on appeal. and is Revised Special action appropriate when State ex rel. Thomas v. Duncan, 216 Ariz. 260, 262, ¶ 4, 165 P.3d 238, 240 (App. 2007); see Arizona Rule of Procedure for Special Actions 1(a) (Special action jurisdiction is appropriate when a petitioner would have no equally plain, speedy, and adequate remedy by appeal. ). [T]his court has jurisdiction to hear a special action in a case originating in justice or appealed to the superior court. police court that has been State ex rel. McDougall v. Superior Court (Klemencic), 170 Ariz. 474, 475, 826 P.2d 337, 338 (App. 1991). DISCUSSION [I]n reviewing a trial [court s] order within the context 4 of a special action, ordinarily we must find the [court] abused [its] discretion or exceeded [its] authority before we may grant relief. jurisdiction or legal Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 253-54, ¶ 10, 63 P.3d 282, 284-85 (2003) (citing Arizona Rule of Procedure for Special Actions 3). A court abuses its discretion when it incorrectly applies the law or predicates a decision upon irrational bases. Brown v. Superior Court, 137 Ariz. 327, 332, 670 P.2d 725, 730 (1983). Right to Counsel Petitioner discretion in argues that refusing to counsel was violated; superior court s order the find superior that specifically, did not follow court abused Petitioner s Petitioner the its right argues established to the legal precedent of State v. Penney, 229 Ariz. 32, 270 P.3d 859 (App. 2012), and State v. Rosengren, 199 Ariz. 112, 14 P.3d 303 (App. 2000). We agree. A defendant s right to assistance of counsel is guaranteed by both the Sixth Amendment to the United States Constitution and Article 2, Section 24, of the Arizona Constitution. See also Ariz. R. Crim. P. 6.1.a (stating that the right to counsel includes the right to consult with an attorney privately as soon as feasible after a defendant is taken into custody ). A DUI suspect should be provided a reasonable opportunity to exercise this right. State v. Sanders, 194 Ariz. 156, 158, ¶ 8, 5 978 P.2d 133, 135 (App. 1998). Once a suspect invokes his right to counsel, police must take reasonable steps to provide the suspect with reasonable means of contacting a lawyer. Penney, 229 Ariz. at 36, ¶ 15, 270 P.3d at 863. In Penney, a DUI suspect s right to counsel was violated when police placed the suspect in a room with one set of white pages and one set of yellow pages with the attorney listings torn out. Although Id. at 34, 37, ¶¶ 4-5, 20, 270 P.3d at 861, 864. the suspect informed the incomplete yellow pages, the officer did nothing to assist him. Id. at 35, ¶ 13, 270 P.3d at 862. providing Penney with the police of Reasonable steps would have required a complete set of yellow responding in some other appropriate fashion. 15, 270 P.3d at 863. to contact, the white contacting an attorney. pages or Id. at 36, ¶ Furthermore, without a specific attorney pages were not a reasonable means of Id. at ¶ 14. Similarly, in Rosengren, a suspect s right to counsel was violated after police denied the suspect s specific request to contact his father, an out-of-state attorney. 16, ¶¶ 4, 10, 14 P.3d at 306-07. 199 Ariz. at 115- Instead, the police offered the suspect the opportunity to contact any attorney in the local telephone book. Id. at 115, ¶ 4, 14 P.3d at 306. In this case, access to a directory assistance operator is not a reasonable means of replicating the specific categories of 6 legal services provided in the yellow pages. Without already having the name of a DUI attorney, directory assistance access was practically meaningless and, like Penney, comparable to the white pages. 863. See Penney, 229 Ariz. at 36, ¶ 14, 270 P.3d at Officer J. could have responded in some other appropriate fashion by permitting digital access to a web phonebook or web pages devoted to DUI attorney listings or by allowing Petitioner, if possible, to access such Internet information via his own cell phone. We find assistance, See id. at ¶ 15. that without merely a providing specific number access to to contact, directory is not a reasonable means for purposes of protecting Petitioner s right to counsel. Therefore, the superior court erred in finding that Petitioner s right to counsel had not been violated. Remedy Petitioner requested the matter be remanded and dismissed. For the reasons discussed in Penney, we reverse and remand to the justice court to determine whether violation of right to counsel prejudiced evidence. defendant s ability to gather exculpatory See id. at 36-37, ¶¶ 16-19, 270 P.3d at 863-64. 7 CONCLUSION For the foregoing reasons, we accept jurisdiction, grant relief and remand to the justice court for further proceedings consistent with this decision. /S/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge 8

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