PENA v. HON. MCCLENNEN/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 ERNESTINE MORENO PENA, ) ) Petitioner, ) ) v. ) ) THE HONORABLE CRANE MCCLENNEN, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of MARICOPA, ) ) Respondent Judge, ) ) STATE OF ARIZONA, by and through, ) the Phoenix City Prosecutor, ) ) Real Party in Interest. ) __________________________________) DIVISION ONE FILED: 10/29/2013 RUTH A. WILLINGHAM, CLERK BY: mjt Court of Appeals Division One No. 1 CA-SA 13-0253 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Petition for Special Action from the Superior Court in Maricopa County Cause No. LC2013-000188-001 DT The Honorable Crane McClennen, Judge JURISDICTION ACCEPTED, RELIEF GRANTED Michael J. Dew Attorney for Petitioner Phoenix Aaron J. Carreon-Ainsa, Phoenix City Prosecutor Phoenix by Gary L. Shupe, Assistant Phoenix City Prosecutor Attorneys for Real Party in Interest T H U M M A, Judge ¶1 After submitting on the record, Petitioner Ernestine Moreno Pena was convicted in Phoenix Municipal Court of Driving Under the Influence (DUI) and Extreme DUI, in violation of Arizona Revised Statutes (A.R.S.) sections 28-1381(A)(1) and 1382(A)(1) (2013) respectively. 1 Prior to her submission on the record, the municipal court failed to fully advise Pena of the rights that she was waiving as required by Arizona Rule of Criminal Procedure 17.2. ¶2 the Given that defective colloquy, Pena timely appealed to superior reversal. The court State claiming fundamental confessed error, error and admitted the seeking colloquy failed to comply with State v. Bunting, 226 Ariz. 572, 250 P.3d 1201 (App. 2011) and, quoting Bunting, stated the superior court should remand evidentiary this hearing matter to to the determine [municipal] whether court [Pena] for would an have agreed to submit the case to the court if a proper colloquy had been conducted. ¶3 In a July 3, 2013 minute entry, the superior court found the municipal court erred in not going through the entire required colloquy before accepting [Pena] s waiver of rights and submission on the stipulated record. The superior court noted Bunting held such a failure was fundamental error and that 1 Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated. 2 Bunting remanded to the trial court to provide defendant the opportunity to establish prejudice. The superior court, however, stated Bunting was conflating fundamental error with structural error and, effectively finding Bunting was wrongly decided, affirmed Pena s convictions, adding the proper procedure is to require [Pena] to file a petition for postconviction relief and allege prejudice. After the superior court denied a timely motion for reconsideration, Pena filed this special action challenging the superior court s decision. ANALYSIS I. ¶4 Special Action Jurisdiction. Pena has no appeal as of right from the superior court s decision. See A.R.S. § 22-375(B). The petition presents an issue of statewide importance potentially affecting numerous DUI cases. Cicoria v. Cole, 222 Ariz. 428, 430, ¶ 9, 215 P.3d 402, 404 (App. 2009). Because the issue raised presents a purely legal question, and because Pena has no equally plain, speedy or adequate remedy by appeal, this court accepts special action jurisdiction. See Ariz. R.P. Spec. Act. 1(a). II. ¶5 The Superior Court Erred In Affirming Without Remanding To The Municipal Court. The Convictions To be reversible, fundamental error requires (1) an error; (2) that was extreme to the point of being fundamental and (3) resulting prejudice to defendant. State v. James, 231 3 Ariz. 490, 493, ¶ 11, 297 P.3d 182, 185 (App. 2013) (citing cases). As the superior court acknowledged, the deficient colloquy in this case was fundamental error. See Bunting, 226 Ariz. at 576-77, ¶ 11, 250 P.3d at 1205-06 (citing cases). Instead of remanding to the trial court for an evidentiary hearing to address prejudice, as directed by Bunting, 226 Ariz. at 576-77, ¶¶ 11-12, 250 P.3d at 1205-06, the superior court affirmed Pena s convictions finding she had not shown prejudice resulting from the fundamental error. ¶6 Although the superior court construed Bunting as grant[ing] relief without requiring [defendant] to establish prejudice, more accurately, Bunting remanded for an evidentiary hearing to determine whether defendant could show prejudice. Id. Indeed, Bunting reserved judgment on whether any relief would be proper pending the outcome of the evidentiary hearing: If the trial court finds that Bunting would not have agreed to submit her case under the circumstances, the court is instructed to vacate the conviction and grant her a new trial. See State v. Carter, 216 Ariz. 286, 292, ¶ 27, 165 P.3d 687, 693 (App. 2007) (holding that if, on remand, the defendant could prove he was prejudiced by the trial court's failure to engage in a Rule 17.6 colloquy, his sentence must be vacated and the defendant must be resentenced). In the alternative, if the court determines that Bunting would have agreed to submit her case if a proper colloquy had been conducted, Bunting s conviction and sentence are affirmed. 4 226 Ariz. at 577, ¶ 12, 250 P.3d at 1206. As such, Bunting did not establish any sort of per se rule requiring reversal for fundamental error without regard to prejudice, a concern expressed by the superior court. Rather, Bunting set forth a specific procedure to determine whether prejudice resulted from fundamental error in the unique setting of an inadequate colloquy regarding submission on the record. ¶7 In this court, quoting Bunting, the State acknowledges the superior court should have remanded this matter back to the trial court for an evidentiary hearing to determine whether [Pena] would have agreed to submit her case to the judge if a proper colloquy had been conducted. The State summarizes the application of Bunting to this case as follows: As shown by Bunting and [State v. Morales, 215 Ariz. 59, 157 P.3d 479 (2007) (cited in Bunting)], the appellate courts treat differently cases in which the [fundamental] error complained of was the trial court s failure to conduct an adequate Rule 17 colloquy. In that instance, if the appellant failed to object to the trial court s omission, the appellate courts deem the omission to be fundamental error but do not require the appellant to show prejudice from the appellate record. Rather, the appellant is generally given another opportunity to demonstrate prejudice [on remand]. Both the municipal and the superior courts were bound to follow the procedure directed in Bunting. In failing to do so, the superior court erred. 5 CONCLUSION ¶8 This court accepts special action jurisdiction and grants relief. The superior court s July 3, 2013 minute entry is vacated and this matter is remanded to the Phoenix Municipal Court for an evidentiary hearing to determine whether Pena would have agreed to submit her case on the record if a proper colloquy had been conducted. /S/_____________________________ SAMUEL A. THUMMA, Judge CONCURRING: /S/_____________________________ PETER B. SWANN, Presiding Judge /S/_____________________________ MAURICE PORTLEY, Judge 6

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