Court of Appeals of Arizona, First Division, Department C
Appeal from the Superior Court in Maricopa County Cause No. LC2011-164655-001 DT The Honorable Crane McClennen, Judge.
Law Offices of Craig W. Penrod, P.C. Tempe Simone A. Atkinson Attorneys for Petitioner
William G. Montgomery, Maricopa County Attorney Phoenix Andrea L. Kever, Deputy County Attorney Attorneys for Real Party in Interest.
DIANE M. JOHNSEN, Chief Judge
¶1 In this special action we address the application of Superior Court Rule of Appellate Procedure-Criminal 8(a)(3) to an appeal from a court of limited jurisdiction when the record of the proceeding appealed from is an audio or video recording rather than a transcript. Accepting jurisdiction, we hold the rule requires parties to such an appeal to cite the specific portion of the recording at which evidence relating to the parties' contentions is found. We grant relief, however, because we conclude the superior court erred by enforcing the rule in this case without notice and without granting petitioner leave to amend his memorandum to comply with the citation requirement.
FACTS AND PROCEDURAL BACKGROUND
¶2 Alexander Jordan was charged in justice court with two driving-under-the-influence violations under Arizona Revised Statutes ("A.R.S.") sections 28-1381(A)(1) and (A)(2) (West 2013) . He filed a motion to suppress, arguing that the officer who stopped him lacked the requisite reasonable suspicion. See Terry v. Ohio, 392 U.S. 1, 30 (1968). After an evidentiary hearing, the justice court denied the motion. The parties then submitted the matter on the record to the court, which found Jordan guilty of both offenses.
¶3 Jordan appealed his convictions to the superior court, arguing the justice court erred by denying his motion to suppress. See A.R.S. § 22-371(A) (West 2013) ("The defendant in a criminal action may appeal to the superior court from the final judgment of a justice or municipal court.") . He did not file a transcript of the evidentiary hearing with his appellate memorandum, but instead filed an audio recording of the proceeding as permitted by Maricopa County Local Rule ("Local Rule") 9.4(b). In his memorandum, Jordan recounted testimony at the justice court hearing but did not reference any specific portion of the recording he had filed. In contrast, the State cited specific time "clips" of the recording of the hearing in its response.
¶4 The superior court declined to consider the arguments in Jordan's appellate memorandum, holding that by omitting citations to the audio recording, he had "failed to properly present his issues for appeal" in violation of Superior Court Rule of Appellate Procedure-Criminal ("Criminal Appeal Rule") 8(a)(3) . The superior court cited the precept that "[w]hen a litigant fails to include citations to the record in an appellate brief, the court may disregard that party's unsupported factual narrative and draw the facts from the opposing party's properly-documented brief and the record on appeal." After concluding that no fundamental error had occurred in the justice court, the superior court affirmed Jordan's convictions and sentences.
¶5 Jordan's petition for special action argues the superior court abused its discretion in declining to consider his arguments on appeal because he had failed to provide specific references to the audio recording of the evidentiary hearing. Our exercise of special action jurisdiction is discretionary but proper when the petitioner has no plain, adequate or speedy remedy by appeal. State ex rel. Romley v. Martin, 203 Ariz. 46, 47, ¶ 4, 49 P.3d 1142, 1143 (App. 2002). Jurisdiction also is "appropriate in matters of statewide importance, issues of first impression, cases involving purely legal questions, or issues that are likely to arise again." Id. (citation omitted).
¶6 Pursuant to A.R.S. § 12-2101 (West 2013), Jordan has no right of appeal from the superior court's order affirming the judgment of the justice court. See Morgan v. Cont'l Mortg. Investors, 16 Ariz.App. 86, 89, 491 P.2d 475, 478 (1971) . Additionally, the interpretation of Criminal Appeal Rule 8(a)(3) and Local Rule 9.4(b) and their interplay are questions of law and issues of first impression that are likely to arise again. We therefore accept jurisdiction of Jordan's petition for special action.
B. Criminal Appeal Rule 8(a)(3) Requires Reference
to the Specific Portions of a Recording Containing Evidence Supporting ...