Petition for Special Action from the Superior Court in
Maricopa County No. CR 2018-121030-001 The Honorable Thomas
A. Kaipio, Commissioner
Maricopa County Attorney's Office, Phoenix By E.
Catherine Leisch Counsel for Petitioner
Maricopa County Public Defender's Office, Phoenix By
William H. Atkins, III Counsel for Real Party in Interest
Michael J. Brown delivered the opinion of the Court, in which
Presiding Judge James P. Beene and Judge Jennifer M. Perkins
The State challenges the denial of its request that Carlos
Espinoza-Sañudo ("Defendant") be held
without bond because his presence was secured through
issuance of a writ of habeas corpus ad prosequendum
("Writ"), which granted the State temporary
physical custody of Defendant to allow prosecution of his
pending criminal charges. For the following reasons, we hold
that the respondent commissioner erred in allowing Defendant
to post a bond because releasing him from custody conflicted
with the express terms of the Writ.
The State arrested Defendant and charged him with three
counts of sale or transportation of narcotic drugs and one
count of possession of narcotic drugs for sale, all class 2
felonies, after he sold drugs to an undercover detective.
Defendant was released after posting a $2, 500 bond, but the
United States Immigration and Customs Enforcement
("ICE") took him into custody and detained him for
When Defendant failed to appear at a status conference for
his pending criminal charges, the superior court issued a
bench warrant. The State then petitioned for the Writ,
requesting permission from ICE to transfer physical custody
of the Defendant to the county sheriff until final
adjudication of the pending criminal charges. The superior
court's criminal presiding judge issued the Writ, which
directed the Eloy Detention Center Warden or the Maricopa
County Sheriff to bring Defendant to the superior court,
"keep [him] in custody and available for all court
proceedings until final judicial disposition is
completed," and then "return [him] to the prison
from which custody was obtained . . . within a reasonable
ICE honored the Writ and the State took physical custody of
Defendant. Despite the terms of the Writ, the commissioner
set release conditions, including an $1, 800 bond. The State
filed a motion requesting Defendant be held without bond
because he would be immediately deported by ICE if released,
depriving the State of its opportunity to prosecute him. The
State also contended Defendant was merely "on loan"
from the federal government and thus "not eligible for
bail or any release conditions." The commissioner denied
the motion, and the State challenged the decision by filing
its petition for special action in this court. In response,
Defendant argued in part that the issue was moot because he
had accepted a plea offer and was sentenced to a prison term.
Acknowledging mootness, we determined exercising special
action jurisdiction was appropriate because the petition
raises an important issue, affects the public interest, and
is capable of repetition yet evading review. See State v.
Valenzuela, 144 Ariz. 43, 44 (1985) (noting the
discretion of appellate courts to decide issues that have
become moot but pose significant issues that are likely to
recur); see also Velazquez v. Myers, 1 CA-SA
17-0298, 2018 WL 326515, at *2, ¶ 8 (Ariz.Ct.App. Jan.
9, 2018) (mem. decision) (addressing whether the superior
court was permitted to release a defendant on his own
recognizance when he remained in federal custody and "on
loan" to the State pursuant to a writ). We issued an
order accepting jurisdiction and granting relief, indicating
a written decision would follow. We now explain our reasoning
for the order.
The State argues the commissioner acted in excess of his
legal authority by denying its request to hold Defendant
without bond, contending he was required to be held in
custody until adjudication was complete because his presence
was obtained from ICE pursuant to the Writ. See
Ariz. R.P. Spec. Act. 3(b) (listing the questions that may be
raised in a special action, including "[w]hether the
defendant has proceeded or is threatening to proceed without
or in excess of jurisdiction or legal authority").
Defendant counters that the commissioner acted properly
because the State failed to establish proof supporting either
of the two methods by which a court may properly deny bail
under Arizona law. See Simpson v. Miller, 241 Ariz.
341, 348, ¶¶ 23-26 (2017) (explaining a superior
court may deny bail (1) based on an individualized
determination of a defendant's dangerousness, or (2)
where the proof is evident or presumption great that
defendant committed a crime presenting an "inherent risk
of future dangerousness").
The constitutional framework of the United States allocates
sovereignty between federal and state governments. See,
e.g., Murphy v. NCAA,138 S.Ct. 1461, 1475-77 (2018).
Defendant correctly notes the limited circumstances in which
the superior court may deny bail, but this case turns on the
legal significance of the Writ, which stems from a
longstanding practice permitting both sovereigns "to
enforce and ...