PETER J. KANIOWSKY, Plaintiff/Appellant,
THE PIMA COUNTY CONSOLIDATED JUSTICE COURT; THE HON. MARIA L. FELIX, A JUDGE THEREOF; AND THE PIMA COUNTY ATTORNEY'S OFFICE, Defendants/Appellees
from the Superior Court in Pima County. No. C20151493. The
Honorable Richard D. Nichols, Judge.
Law Group, P.C., Tucson, By Javier Alatorre, Counsel for
LaWall, Pima County Attorney, By Jacob R. Lines, Tucson,
Counsel for Defendants/Appellees.
Judge Howard authored the opinion of the Court, in which
Judge Espinosa and Judge Staring concurred.
Peter Kaniowsky appeals from the trial court's denial of
relief in his special action challenging the Pima County
Justice Court's denial of his request for a jury trial on
five unlawful imprisonment charges. Kaniowsky argues he is
entitled to a jury trial because unlawful imprisonment was a
jury-eligible offense at common law. Because we agree with
Kaniowsky, we vacate the court's order and remand for
and Procedural Background
The relevant facts are not in dispute. Kaniowsky was charged
in justice court with five counts each of assault and
unlawful imprisonment. He filed a motion requesting a jury
trial for the false imprisonment counts, which the court
denied. He then filed a complaint for special action in
superior court, arguing he was entitled to a jury trial
because false imprisonment was a jury-eligible offense at
common law. The superior court accepted jurisdiction but
denied relief. It reasoned that Amancio v. Forster,
196 Ariz. 95, 98, 993 P.2d 1059, 1062 (App. 1999), which
concluded that unlawful imprisonment was not a jury-eligible
offense based on its seriousness, was controlling and thus
Kaniowsky was not entitled to a jury trial. We have
jurisdiction over Kaniowsky's appeal pursuant to A.R.S.
§ § 12-120.21(A)(1) and 12-2101(A)(1). See
Ariz. R. P. Spec. Actions 8(a).
Kaniowsky argues that the superior court erred by relying on
Amancio because it did not reach the question of
whether unlawful imprisonment had a jury-eligible counterpart
in common law. When the superior court accepts jurisdiction
of a special action, but denies relief, we review for an
abuse of discretion. Merlina v. Jejna, 208 Ariz. 1,
¶ 6, 90 P.3d 202, 204 (App. 2004). Whether a defendant
is entitled to a jury trial, however, is a question of law we
review de novo. Urs v. Maricopa Cty. Attorney's
Office, 201 Ariz. 71, ¶ 2, 31 P.3d 845, 846 (App.
2001). An error of law may constitute an abuse of discretion.
State v. Wall, 212 Ariz. 1, ¶ 12, 126 P.3d 148,
At the time Amancio was decided, our supreme court
had identified three factors as relevant to determining a
defendant's right to a jury trial, any one which could
independently give rise to jury eligibility. See
Derendal v. Griffith, 209 Ariz. 416, ¶ 5, 104
P.3d 147, 149 (2005) (overruling Rothweiler v. Superior
Court, 100 Ariz. 37, 410 P.2d 479 (1966)). The existence
of a jury-eligible common law antecedent was one factor and
the seriousness of the offense was another. Id.
The defendant in Amancio argued the seriousness of
the offense entitled him to a jury trial and conceded that
unlawful imprisonment did not have a jury-eligible common law
antecedent. 196 Ariz. 95, ¶ 7, 993 P.2d at 1060. The
court, in its analysis, thus focused solely on the
seriousness of the offense. Id. ¶ ¶ 7-15.
The defendant's concession deprived the court of "
the opportunity to address [the] argument that" unlawful
imprisonment had a jury-eligible common law antecedent, thus
waiving the issue for review. Harris v. Cochise Health
Sys., 215 Ariz. 344, ¶ 18, 160 P.3d 223, 229 (App.
2007); see also State v. Bolton, 182 Ariz.
290, 298, 896 P.2d 830, 838 (1995) ( insufficient argument on
appeal waives claim). That waiver meant the court was not
" fully advised on the question." Creach v.
Angulo, 186 Ariz. 548, 552, 925 P.2d 689, 693 (App.
1996). Consequently, the court's statement that "
there was . . . no entitlement to a jury trial under the
common law," Amancio, 196 Ariz. 95, ¶ 16,
993 P.2d at 1062, was dictum, Creach, 186 Ariz. at
552, 925 P.2d at 693; see also Town of Chino
Valley v. City of Prescott, 131 Ariz. 78, 81, 638 P.2d
1324, 1327 (1981) ( court's statement on question not
necessarily decided in case is dictum). And in any event,
based on the following analysis, we conclude that any
statement in Amancio indicating unlawful
imprisonment does not have a common law antecedent is an
incorrect statement of the law.