Court of Appeals of Arizona, First Division, Department B
Not for Publication -Rule 111, Rules of the Arizona Supreme Court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
Michael J. Dew Phoenix Attorney for Petitioner
Aaron J. Carreon-Ainsa, Phoenix City Prosecutor Phoenix by Gary L. Shupe, Assistant Phoenix City Prosecutor Attorneys for Real Party in Interest
SAMUEL A. THUMMA, 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. 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 Given that defective colloquy, Pena timely appealed to the superior court claiming fundamental error and seeking reversal. The State confessed error, admitted the 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 this matter 'to the [municipal] court for an evidentiary hearing to determine whether [Pena] would 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 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 post-conviction 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.
I. Special Action Jurisdiction.
¶4 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. The Superior Court Erred In Affirming The Convictions Without Remanding To The Municipal Court.
¶5 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 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 ...