Benitez v. Dunevant, No. CV-98-0540-PR.

• Court: Supreme Court of Arizona
• Writing for the Court: JONES, Vice Chief Justice
• Citation: 7 P.3d 99,198 Ariz. 90
• Parties: Daniel Paul BENITEZ, Petitioner, v. The Honorable Thomas DUNEVANT III, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, The Phoenix City Prosecutor's Office, Real Party in Interest.
• Decision Date: 31 July 2000
• Docket Number: No. CV-98-0540-PR.

7 P.3d 99
198 Ariz. 90

Daniel Paul BENITEZ, Petitioner,
v.
The Honorable Thomas DUNEVANT III, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge,
The Phoenix City Prosecutor's Office, Real Party in Interest

No. CV-98-0540-PR.

Supreme Court of Arizona, En Banc.

July 31, 2000.

7 P.3d 101

Neal W. Bassett and Mariscal Weeks McIntyre Friedlander PA by Dominica Minore Bassett, Phoenix, Attorneys for Petitioner

Roderick G. McDougall, Phoenix City Attorney by Gregory L. Hanchett, F. Tyler Rich, Assistant City Prosecutors, Phoenix, Attorneys for Real Party in Interest.

OPINION

JONES, Vice Chief Justice:

Facts and Procedural History

¶ 1 Daniel Paul Benitez was charged, inter alia, with violating Arizona Revised Statutes Annotated (A.R.S.) section 28-3473(B) (1998)¹—driving a motor vehicle on a license suspended for an earlier DUI violation. He was tried in Phoenix City Court without a jury and found guilty of the violation, a class one misdemeanor. Pursuant to relevant sentencing statutes, the maximum sentence available was six months' incarceration, see A.R.S. § 13-707(A)(1) (1989), and a fine of $2500, see A.R.S. § 13-802(A) (1989). Additionally, under A.R.S. § 28-3473(D)(1), upon conviction, a driver's license suspension for an "additional like period" was mandatory. Benitez' actual sentence was 48 hours in jail, a $1010 fine, and a 90-day suspension of his driver's license, tacked on to his initial DUI suspension.

¶ 2 Benitez appealed to the Maricopa County Superior Court, asserting a right to jury trial. The superior court ruled the offense ineligible for trial by jury and held that even had the offense been found eligible, Benitez waived the issue as untimely raised. Benitez then brought a special action in the court of appeals, again arguing that the offense was jury eligible and that it had not been waived in city court. The court of appeals reversed the superior court, ruling the offense jury eligible, and remanded to the city court for a decision on waiver. The State now petitions this Court for review of the jury question. We granted review and have jurisdiction pursuant to article VI, section 5(3) of the Arizona Constitution, Rule 23 of the Arizona Rules of Civil Appellate Procedure, and A.R.S. section 12-120.24.

¶ 3 We hold that a trial on the charge of violating section 28-3473(B) (driving on a DUI suspended driver's license) is not jury eligible. Accordingly, we vacate the court of appeals' decision, affirm the decision of the superior court, and reinstate Benitez' conviction and sentence in the Phoenix city court. Applying the Rothweiler/Dolny test for jury eligibility, the offense is not linked to a crime associated with a common law right to jury trial, is not a crime evidencing serious moral deficiency, nor is it one which carries such severe penalties as would compel a jury trial. State ex rel. Dean v. Dolny, 161 Ariz. 297, 778 P.2d 1193 (1989); Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966).

Discussion

I. The Rothweiler/Dolny Test

¶ 4 The test for jury eligibility in this state requires an inquiry into the seriousness of the offense. "Serious" offenses have been found jury eligible while "petty"

7 P.3d 102

offenses have been found ineligible. See, e.g., Dolny, 161 Ariz. at 299, 778 P.2d at 1195. This dichotomy is rooted in the Arizona Constitution. Article II, sections 23 and 24, guarantee jury rights to all criminal defendants, stating respectively, "[t]he right of trial by jury shall remain inviolate" and "[i]n criminal prosecutions, the accused shall have the right ... to have a speedy public trial by an impartial jury...." Ariz. Const. art. II, §§ 23-24. The constitutional guarantee of trial by jury is not a grant, but a reservation of a pre-statehood right. See, e.g., United States Fidelity & Guar. Co. v. State, 65 Ariz. 212, 217, 177 P.2d 823, 826 (1947); In re Davis, 28 Ariz. 312, 313, 236 P. 715, 716 (1925). Thus, those offenses linked to jury trial at common law at the time the constitution was adopted are protected by the constitutional guarantee. It is because petty offenses were not triable to a jury at common law that we continue to distinguish between petty and serious offenses in the determination of jury eligibility

¶ 5 In pre-Rothweiler jury eligibility cases, we focused primarily on the common law right, rather than on the "seriousness" of the offense. See State v. Cousins, 97 Ariz. 105, 107-08, 397 P.2d 217, 218 (1964); Davis, 28 Ariz. at 313, 236 P. at 716; Bowden v. Nugent, 26 Ariz. 485, 486-87, 226 P. 549, 549-50 (1924). But in Rothweiler, recognizing that some offenses, non-existent at common law, are nonetheless comparable in both severity and consequence to jury eligible crimes, we formulated a three-part test to establish a more flexible inquiry into the question of eligibility. 100 Ariz. at 42, 410 P.2d at 483. The test determines which offenses approximate the penalties, the consequences, and the stigmas that would have secured a jury right at common law. We have used the term "petty" to refer to non-eligible crimes. The term may cause confusion, however, due to the inconsistency between judicial use of the term and the legislative classification of offenses as "petty," "misdemeanor," or "felony." See A.R.S. §§ 13-105 (Supp.1999), -701 (Supp.1999), - 707, and -803 (1989). Although we accord deference to legislative designations in determining the seriousness of an offense, see, e.g., Dolny, 161 Ariz. at 299-300, 778 P.2d at 1195-96, the courts alone are vested with constitutional authority to determine jury eligibility.

¶ 6 Thus, we do not attach a jury right to a felony, merely because the legislature has classified it as such, but rather, because, applying our own test, the right attaches to an offense that is sufficiently serious or would have been protected at common law. Similarly, we do not decline to find jury eligibility for a misdemeanor simply because it has been legislatively classified a misdemeanor. Rather, we look to the consequences of a conviction including the penalties and their impact, as well as the public condemnation of the act, to determine whether any given offense warrants a constitutionally protected jury right.

¶ 7 The three factors formulated in Rothweiler to determine jury eligibility are: (a) the relationship of the offense to common law crimes; (b) the severity of the potential penalties made available by statute; and (c) the moral quality of the offense. See Rothweiler, 100 Ariz. at 47, 410 P.2d at 486.

¶ 8 The application of these factors does not follow a set formula. However, we held in State ex rel. McDougall v. Strohson that the second factor, the severity of the maximum potential penalty authorized by the statute, is the most significant. 190 Ariz. 120, 124, 945 P.2d 1251, 1255 (1997); see also Bruce v. State, 126 Ariz. 271, 272-73, 614 P.2d 813, 814-15 (1980). As such, once that factor is established, the right to trial by jury is conclusive.

¶ 9 Moreover, if an offense is traceable to jury eligibility at common law, then the jury right is also firmly established even in the absence of the other two factors. The final factor—moral quality—is more flexible and thus requires careful analysis in its application. However, even in the absence of the other factors, a jury right is present for crimes involving moral turpitude or for crimes with potential for such grave consequences that they are considered serious in the eyes of society.

7 P.3d 103

¶ 10 Rothweiler and Dolny adhere to our flexible approach allowing jury protection of crimes associated with penalties, stigmas, or consequences which, in relative terms, were the equivalent of jury eligible crimes acknowledged prior to adoption of the state constitution in 1912. Conversely, the state urges us to adopt the more rigid federal test making eligibility a function of legislative, rather than judicial, determination. In the federal sector, any offense with a potential jail term of six months or less is presumed petty, thus ineligible, unless the defendant can demonstrate additional statutory penalties that, when combined with incarceration, are so severe that they reflect a legislative determination that the offense is serious. See Blanton v. City of North Las Vegas, 489 U.S. 538, 542-43, 109 S.Ct. 1289, 1292-93, 103 L.Ed.2d 550 (1989). In contrast, we explained recently in Strohson that Arizona operates with a broader jury eligibility standard, providing its citizens with greater access to jury trials than the federal constitution mandates. 190 Ariz. at 121-22, 945 P.2d at 1252-53. For the reasons stated in Strohson, we again reject the narrow federal test and reaffirm Arizona's Rothweiler/Dolny test. As a matter of prudence, we will defer, where appropriate, to legislative standards of severity of an offense but reserve the ultimate determination of jury eligibility exclusively to the courts

II. Applying the Rothweiler Test

¶ 11 Jury eligibility focuses on the offense, not the defendant. See Strohson, 190 Ariz. at 125, 945 P.2d at 1256. On the record before us, we look to our Rothweiler decision for the application of the three-part test.

A. Relationship to Common Law Offenses

¶ 12 Benitez does not argue that driving on a DUI suspended license is comparable to crimes triable to a jury at common law. Clearly, the offense has no common law antecedent and is therefore not jury eligible as a common law criminal offense.

B. Severity of Penalty

¶ 13 In accordance with Strohson, we assess severity of the penalty by looking to the potential jail time and fines set by the legislature. 190 Ariz. at 124, 945 P.2d at 1255. Because the offense,...