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State v. Lee

Court of Appeals of Arizona, Second Division

December 18, 2014

THE STATE OF ARIZONA, Petitioner,
v.
HON. KENNETH LEE, JUDGE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA, Respondent, and L.N., Real Party in Interest

Special Action Proceeding. Pima County Cause No. CR20142391001.

Page 1086

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

Lori J. Lefferts, Pima County Public Defender, By David J. Euchner and Elena M. Kay, Assistant Public Defenders, Tucson, Counsel for Real Party in Interest.

Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Miller and Judge Espinosa concurred.

OPINION

Page 1087

[236 Ariz. 379] ECKERSTROM, Chief Judge:

[¶1] In this special action, the State of Arizona challenges the respondent judge's order remanding real party in interest L.N. to the juvenile division of the Pima County Superior Court after the state sought to prosecute him as an adult on felony charges. The respondent judge found the state did not sustain its burden of establishing the class six felony delinquency adjudications were historical prior felony convictions for purposes of A.R.S. § 13-501(A) and (H)(2), and A.R.S. § 13-105(22)(c). The state maintains the respondent abused his discretion by so finding. We agree and grant relief for the reasons stated below.

Factual and Procedural Background

[¶2] The following facts and procedural history were either undisputed below, are undisputed in this special-action proceeding, or are supported by three minute entries from delinquency proceedings in the juvenile court that were before the respondent judge when he issued the ruling that is the subject of this special action. L.N. was born in July 1998 and is currently sixteen years old. On May 16, 2013, L.N. was adjudicated delinquent based on criminal acts alleged in three separately dated delinquency petitions. With respect to a December 19, 2012 petition, the juvenile court found he had possessed drug paraphernalia, a class six felony, in violation of A.R.S. § 13-3415. Based on two other petitions, one dated October 10, 2012, and the other April 3, 2013, L.N. was adjudicated delinquent based on three class one misdemeanors: shoplifting, possession/use of marijuana, and possession of drug paraphernalia. The juvenile court placed L.N. on probation and issued a " First Felony Adjudication Notice," the notice required by A.R.S. § 8-341(C).[1]

[¶3] In August 2013, L.N. was adjudicated delinquent in connection with a July 18, 2013 petition for possessing or using less than two pounds of marijuana, a class six felony, in violation of A.R.S. § 13-3405(A)(1).[2] At the August 30 disposition hearing, the court placed him on Juvenile Intensive Probation Supervision (JIPS) and signed a Repeat Felony Adjudication Notice as required by § 8-341(E).[3]

[¶4] On June 9, 2014, the state charged L.N. with possession of a deadly weapon by a prohibited possessor, a class four felony, in violation of A.R.S. § 13-3102(A)(4),[4] and

Page 1088

[236 Ariz. 380] theft of a firearm, a class six felony, in violation of A.R.S. § 13-1802(A)(1). In accordance with § 13-501(D), the state filed a notice stating L.N. was a chronic felony offender, " a juvenile who has had two prior and separate adjudications and dispositions for conduct that would constitute a historical prior felony conviction if the juvenile had been tried as an adult," § 13-501(H)(2), and he was subject to mandatory prosecution as an adult pursuant to § 13-501(A).

[¶5] L.N. filed a motion for determination of chronic felony offender status and requested a hearing pursuant to § 13-501(E). Although he conceded in his motion that he had two delinquency adjudications and dispositions for felony offenses, he argued that, based on a policy of the Pima County Attorney's Office (PCAO) regarding the prosecution of adults for these kinds of offenses, he would have been charged with misdemeanors had he committed the offenses as an adult. He argued this disparate treatment of adults and juveniles violated his right to " equal protection under the law," and asked the respondent to find he is not a chronic felony offender and remand him to the juvenile court on the charges.

[¶6] At the July 1, 2014 hearing on his motion, L.N. once again conceded he had two felony adjudications but informed the respondent judge that he had filed a motion in juvenile court " to see if these can be made to misdemeanors." He argued that for this reason and because his equal protection rights were being violated, the respondent should find he was not a chronic felony offender and transfer the case to the juvenile court. The respondent did not rule on the equal protection argument, but commented he was " not going to find a violation." He denied the motion, permitting L.N. to re-file the motion after the juvenile court ruled on the request to re-designate the felonies as misdemeanors.

[¶7] After the juvenile court denied that request, L.N. filed a " motion for reconsideration o[r] redetermination of chronic felony offender status." At the August 4 hearing on L.N.'s second motion, the state introduced certified copies of minute entries from L.N.'s juvenile court record dated May 16, 2013, August 30, 2013, and July 18, 2014. The respondent found that " [t]he documents presented to the Court reflect one cause number where the defendant has been adjudged delinquent and disposition was entered," which suggested to him there had not been separate adjudications. He also noted the state had acknowledged that the PCAO policy permitted prosecutors to charge adults who commit possession of marijuana and possession of drug paraphernalia with misdemeanors rather than class six felonies. The respondent found the state had not ...


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