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Woodington v. Browning

Court of Appeals of Arizona, Second Division

June 22, 2016

Scott Allen Woodington, Petitioner,
v.
Hon. Christopher Browning and Hon. Kyle Bryson, Judges of the Superior Court of the State of Arizona, in and for the County of Pima, Respondents, and The State of Arizona, Real Party in Interest.

         Special Action Proceeding Pima County Cause No. CR20153529001

          Dean Brault, Pima County Legal Defender By James L. Fullin and Dmitry Kashtelyan, Assistant Legal Defenders, Tucson Counsel for Petitioner

          Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Real Party in Interest

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

          OPINION

          VÁSQUEZ, Presiding Judge

         ¶1 In this special action, petitioner Scott Woodington challenges the determinations of the respondent judge and respondent presiding judge that he was not entitled to a second peremptory challenge to remove the assigned judge after Woodington was arraigned a second time. Finding no abuse of discretion, we accept jurisdiction but deny relief.

         Factual and Procedural Background

         ¶2 In September 2015, Woodington was indicted and arraigned on a charge of second-degree murder. The state later moved to amend the indictment, and Woodington moved to dismiss or, in the alternative, to remand the matter to the grand jury. The respondent judge, Judge Christopher Browning, determined there were "enough areas of concern in the presentation to the Grand Jury" to merit a new presentation and remanded the matter for a redetermination of probable cause. The grand jury returned a new indictment under the same cause number, and, on March 9, 2016, Woodington was again arraigned.

         ¶3 On March 21, Woodington filed a notice of change of judge pursuant to Rule 10.2, Ariz. R. Crim. P., requesting the respondent judge's removal from the case. In the notice, Woodington stated that "the court's rotation of bench assignments would have normally resulted in reassignment to [Judge Richard Fields], which assignment would be acceptable to both parties." The respondent judge denied the request, noting that Woodington previously had been indicted in the same cause number, "[t]he case ha[d] been assigned to [the respondent judge] since its inception, " and "[t]he original case ha[d] never been dismissed." Citing Godoy v. Hantman, the respondent judge thus determined the notice was untimely. 205 Ariz. 104, 67 P.3d 700 (2003).

         ¶4 Woodington filed a motion with the respondent presiding judge, Judge Kyle Bryson, arguing the notice was timely and asking that the presiding judge "determine the assignment of judge on th[e] case." The presiding judge denied the motion and this petition for special action followed.

         Jurisdiction

         ¶5 A defendant may only challenge the denial of a motion for a peremptory change of judge pursuant to Rule 10.2 by special action. State v. Ingram, 239 Ariz. 228, 16, 368 P.3d 936, 940 (App. 2016). Therefore, because Woodington has no remedy by appeal, this matter is appropriate for special-action jurisdiction. See Ariz. R. P. Spec. Act. 1(a).

         Discussion

         ¶6 Woodington contends the respondent judge exceeded his legal authority and failed to perform a duty required by law by failing to transfer his Rule 10.2 motion to the presiding judge. And he argues the respondent judge erred in denying his motion ...


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