State v. Rodriguez
| Citation | 761 P.2d 143,158 Ariz. 69 |
| Decision Date | 22 March 1988 |
| Docket Number | CA-SA,No. 2,2 |
| Parties | STATE of Arizona, Petitioner, v. Honorable Lina RODRIGUEZ, Judge of the Superior Court, In and For the County of Pima, Respondent, and Jeffrey William DICUS, Real Party in Interest. 88-0012. |
| Court | Court of Appeals of Arizona |
The state has brought this special action from the trial court's refusal to grant a motion to vacate hearing and to quash subpoena, a motion which arose from the real party in interest's challenge to a new program implemented by the Pima County Attorney's Office excluding certain offenders from plea bargaining. We believe the trial court abused its discretion in refusing to vacate the hearing. Since the state has no equally plain, speedy or adequate remedy by appeal, we assume jurisdiction and grant relief.
The applicable facts which led to the instant ruling are as follows. The real party in interest, Jeffrey Dicus, was arrested on August 27, 1987, for stealing 18 cartons of cigarettes and a $30 car stereo from two Tucson stores. He and a codefendant, Larry Reid, were indicted on two counts of third-degree burglary and one count of theft by control. Defense counsel was informed that due to the existence of a new program implemented by the Pima County Attorney's Office whereby certain "target offenders" are to be offered no plea bargains whatsoever, real party in interest would either have to plead to all charges or go to trial on all charges. Under the Target Offender Program, a defendant is deemed ineligible for plea negotiations if he or she meets the following criteria: between the ages of 18 and 25; juvenile law enforcement contact; prior arrest; drug or alcohol abuse history; sporadic employment or post-adjudication/conviction incarceration.
The real party in interest was deemed to meet the TOP profile although he is 26 years old. No plea offer was made and his minimum prison exposure is 10, 12 or 14 years at two-thirds time. The codefendant's background is very similar to that of the real party in interest except that he is 40 years old. He was offered a plea bargain, under which the allegation of prior conviction and the allegation that this offense was committed while on release were to be dismissed, thereby lessening his prison exposure from two-thirds of 10, 12 or 14 years to one-half of four, six or eight years. On January 21, 1988, Mr. Reid accepted the offer and was sentenced to a presumptive term of six years in prison.
The real party in interest's attack on the Target Offender Program is based on his contention that the program constitutes an abuse of prosecutorial discretion or that discretion has been "abandoned entirely in favor of blind adherence to an arbitrary and improper checklist." He claims that his age, normally a factor in mitigation, is being used as the determining factor in seeking maximum punishment.
It is within the prosecutor's discretion to determine whether to file charges and which charges to file. State v. Hankins, 141 Ariz. 217, 686 P.2d 740 (1984); State v. Murphy, 113 Ariz. 416, 555 P.2d 1110 (1976). While the real party in interest agrees that it is similarly within the prosecutor's discretion to decide in what cases, if any, to plea bargain, State v. Martin, 139 Ariz. 466, 679 P.2d 489 (1984), he claims that the prosecutor cannot abandon this discretionary power. We disagree. There is no constitutional bar to the full prosecution of all criminal law violators as long as that prosecution is not tainted with invidious discrimination. Murguia v. Municipal Court for Bakersfield, 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44 (1975). See also Murray v. Thorneycroft ex rel. Arizona Highway Dept. Motor Vehicle Division, 131 Ariz. 156, 639 P.2d 346 (App.1981). In Martin, supra, our supreme court stated:
[W]hile a prosecutor may refuse to plea bargain with alleged criminal violators, he may not do so solely because defendant has selected a particular defense counsel. The county attorney may not refuse to plea bargain out of animus toward the defendant's attorney. He may plea bargain or not, depending on how this case fits the policies and standards of his office. For instance, he may properly decide, as a matter of policy, that there will be no plea bargains with those accused of selling cocaine, or he may plea bargain only in cases in which there exists substantial doubt of guilt. He must, however, have some valid reason; animus...
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