from the Superior Court in Maricopa County No.
2017-002264-001 DT The Honorable Annielaurie Van Wie, Judge
Arizona Attorney General's Office, Phoenix By Eric
Knobloch Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix By Paul
J. Prato Counsel for Appellant
Presiding Judge Paul J. McMurdie delivered the opinion of the
Court, in which Judge Randall M. Howe and Judge Jennifer B.
Vincent Mendoza appeals his conviction and sentence for one
count of aggravated driving or actual physical control of a
vehicle while under the influence of intoxicating liquor or
drugs, a class 4 felony. We hold: (1) a superior court judge
who, in violation of Arizona Rule of Criminal Procedure
("Rule") 17.4(a)(2), participates in settlement
discussions between a defendant and the State without the
parties' consent, errs by thereafter presiding over that
defendant's trial and sentencing; (2) such error is
fundamental if the totality of the circumstances raises a
presumption of judicial vindictiveness; and (3) if the
presumption is unrebutted by the State, it requires the
defendant to be either resentenced or retried before a
different judge. Because we find an unrebutted presumption of
judicial vindictiveness exists regarding Mendoza's
sentence, we affirm his conviction but vacate his sentence
and remand for resentencing before a different superior court
AND PROCEDURAL BACKGROUND 
On a night in October 2016, Officer Jaime Cole, a patrol
officer with the Goodyear Police Department, noticed
Mendoza's vehicle traveling northbound at speed slower
than the posted speed limit. Cole decided to follow the car
and soon saw that Mendoza was having trouble staying in his
lane. Mendoza nearly struck a curb while executing a lane
change and crossed over a solid white fog line. Based on
these observations, Cole initiated a traffic stop. Mendoza
was seated in the driver's seat. As Cole spoke with
Mendoza, she noticed Mendoza's eyes were red, bloodshot,
and watery; he had difficulty multi-tasking; and the odor of
alcohol was coming from inside the vehicle. Mendoza admitted
to Cole that he drank six beers that night and had an
ignition interlock device installed in the vehicle "to
prevent this," and added that a friend had blown into
the machine to allow him to drive the car. Eventually, Cole
arrested Mendoza for driving under the influence.
At the police station, Mendoza underwent blood and breath
testing. The blood testing returned a blood alcohol
concentration of 0.128. The breath testing returned results
of 0.119 and 0.117. After the screening, Mendoza waived his
Miranda  rights, and Officer Cole interviewed him.
During the interview, Mendoza again admitted drinking at
least six beers earlier that night but denied that he felt
the effects of the alcohol or that he was impaired to the
The State charged Mendoza with one count of driving or actual
physical control while under the influence of intoxicating
liquor and under a court order to equip a certified ignition
interlock device ("Count 1") and one count of
driving or actual physical control while he had an alcohol
concentration of 0.08 or more in his body within two hours of
the time of driving and while under a court order to equip a
certified ignition interlock device ("Count 2"),
both class 4 felonies. In March 2018, during a status
conference before the assigned trial judge, the parties
indicated to the court that the State had offered a plea
agreement with that day as the deadline for Mendoza to accept
or reject it. Mendoza's counsel stated that Mendoza
"wanted to discuss the case with the Court." The
court agreed and proceeded to inform Mendoza of the charges,
their elements, and that the plea offer was for nine
Upon further questioning, the State asserted that because
Mendoza had two prior historical felony convictions for
aggravated driving under the influence and aggravated assault
involving a vehicle, he would be sentenced as a category
three repetitive offender if convicted, Ariz. Rev. Stat.
("A.R.S.") § 13-703(C), and that under A.R.S.
§ 13-703(J), he would face a sentencing range of 6 to 15
years. The court then made the following statements to
Okay. So, Mr. Mendoza, after trial you would face 6 to 15.
That six is completely, 100 percent unreasonable. There is
not a judge here that will give you six, period. The fact
that you've already done seven and a half on a vehicular
aggravated assault . . . means someone's going to give
you more. Okay? And seven and a half on a vehicular
aggravated assault and then coming back with essentially what
looks like a third felony DUI type activity, when you already
assaulted somebody, like-no.
Your chances of getting nine after trial are literally about
zero. Your chances of getting 10 are extremely low. Your
chances of getting above 10 like the 12, 13, 14, 15,
that's -it's [a] better chance you get that than you
get ten or nine for sure.
I can't imagine anyone giving you less than the
presumptive when you've already been to prison for seven
and a half years related to a vehicular assault and
you've got another Agg DUI and you're here for
another Agg DUI, and you go to trial because when you go to
trial, you also lose the mitigation of acceptance of
responsibility, remorse, saving taxpayer time, court time,
saving money for the courts. You lose all of that that goes
in the good pile.
Okay. When you go to trial, that just doesn't exist.
Okay? So when you go to trial, you have less in the good
pile. When we're weighing the good and the bad, and if
you have less in the good pile, the stuff in the bad pile
weighs heavier. Does that make sense?
The court continued to discuss Mendoza's case with him,
including the sentence he would receive if he went to trial
and was convicted, with little intervention from either
Mendoza's counsel or the State. The following colloquy
occurred during this conversation:
THE COURT: If you are convicted at trial, you will get more
than nine years. So your plea offer may save you some time.
It might not be what you want, but they're not going to
give you something better.
[MENDOZA]: I'm by myself, Your Honor, so if I get 10
years, I get 10 years. . . . I have no family. When my mom
died my family just-just disowned me and not supported me.
THE COURT: And your time is not worth anything? You'd
rather just spend your years in prison?
[MENDOZA]: I was an electrician for-I was an electrician for
the prison so I worked the whole time I was there.
THE COURT: Oh, so you like prison?
[MENDOZA]: I don't like it, but I don't like-just
I'm putting pretty much a gun to my head. Either do or
THE COURT: No, you're right. You're pretty much in
the same spot as everybody else in here when they have to
decide on a plea.
[MENDOZA]: I made a mistake, Your Honor. I can't change
the past. But unfortunately-
THE COURT: Well, you can't but you can try to minimize
the damage. But if you want to go to prison for longer, you
let me know at sentencing because I'll be happy-
[MENDOZA]: I don't.
THE COURT: -to send you for 15 and have no problem with it.
[MENDOZA]: I don't want to, that's why I
(indiscernible) and maybe do some understanding. I'm not
saying that I'm not ...