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State v. Bernini

Court of Appeals of Arizona, Second Division, Department B

September 30, 2013

THE STATE OF ARIZONA, Petitioner,
v.
HON. DEBORAH BERNINI, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and DEBBIE LYNN COPELAND, Real Party in Interest.

SPECIAL ACTION PROCEEDING Pima County Cause No. CR20103950001

Barbara LaWall, Pima County Attorney By Jacob R. Lines Tucson Attorneys for Petitioner

Lori J. Lefferts, Pima County Public Defender By Lisa M. Hise and David J. Euchner Tucson Attorneys for Real Party in Interest

OPINION

VIRGINIA C. KELLY, Presiding Judge

¶1 In this special action proceeding, the state has asked us to consider the relationship between a trial court's designation of an offense as "non-dangerous" for the purpose of conviction and sentencing, see A.R.S. §§ 13-702, 13-704, and another judge's later consideration of whether that same conviction had been for "a dangerous offense, " which would render the defendant ineligible to have the conviction set aside pursuant to A.R.S. § 13-907(D)(1). Specifically, the state argues the respondent judge erred as a matter of law when she set aside real-party-in-interest Debbie Copeland's conviction for attempted aggravated assault.

2 The state contends Copeland's conviction cannot be set aside because it was "for a dangerous offense, even though the allegation of the dangerous nature was dropped" by Copeland's plea agreement, and even though the offense had been designated at conviction as non-dangerous. The state also urges this court to "grant jurisdiction and publish its decision to provide guidance to the trial courts on this issue, " a matter of first impression in Arizona courts.[1] Copeland joined in that request at oral argument.

¶3 Although special action review is not available "where there is an equally plain, speedy, and adequate remedy by appeal, " Ariz. R. P. Spec. Actions 1(a), the state's right to appeal from post-judgment orders is limited to those orders "affecting the substantial rights of the state or a victim." A.R.S. § 13-4032(4). The state believes its right to a remedy by appeal is not readily apparent, and Copeland agrees. We may accept special action jurisdiction when the "remedy by appeal is not 'equally plain' compared to [a] remedy by special action." State v. Bernini, 230 Ariz. 223, ¶ 5, 282 P.3d 424, 426 (App. 2012). We do so here because the question raised may be resolved on purely legal grounds and is likely to arise again, but may evade review by direct appeal. See State ex rel. Romley v. Martin, 203 Ariz. 46, ¶ 4, 49 P.3d 1142, 1143 (App. 2002) ("Special action jurisdiction is appropriate in matters of statewide importance, issues of first impression, cases involving purely legal questions, or issues that are likely to arise again."). Although we accept special action jurisdiction, we deny relief, for the reasons that follow.

Background

¶4 On March 28, 2011, Copeland pleaded guilty pursuant to a plea agreement that provided,

Having been placed under oath by the Court, Defendant, Debbie Lynn Copeland, agrees to plead guilty to the charge(s) of:
Amended count one: attempted aggravated assault, deadly weapon/dangerous instrument, domestic violence, a class four felony
On or about the 23rd day of October, 2010, Debbie Lynn Copeland attempted to assault [T.C.] with a deadly weapon or dangerous instrument, to wit: a knife, in violation of A.R.S. §§ 13-1001, 13-1204(A)(2) and (C), [2] 13-3601, 13-603, 13-704 [sic], 13-701, 13-702, 13-801, 13-804 and 13-811.

The agreement also "amend[ed] the charges filed in this case to the offense(s) set forth above, " with "[a]ll other charges and allegations in this case . . . dismissed." Presumably, the agreement's dismissal of "other . . . allegations" included the dismissal of a separate allegation that Copeland had committed a "dangerous offense" that subjected her to an enhanced sentence under ยง 13-704(A). The agreement did not exclude the possibility of probation, but required that any probation ...


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