In re E.M.
| Decision Date | 14 April 2014 |
| Docket Number | No. 2 CA-JV 2013-0057,2 CA-JV 2013-0057 |
| Parties | IN RE E.M. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Civ. App. P. 28(c); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Pima County
The Honorable Catherine Woods, Judge
AFFIRMED
Barbara LaWall, Pima County Attorney
By Dale Cardy, Deputy County Attorney, Tucson
Counsel for State
The Hopkins Law Office, P.C., Tucson
By Cedric Martin Hopkins
Counsel for Minor
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred.
¶1 E.M. appeals from the juvenile court's May 2013 order adjudicating him delinquent on two separate petitions, revoking his probation, and committing him to the Arizona Department of Juvenile Corrections. He claims (1) his "right to a speedy adjudication hearing" was violated because a hearing was not completed within forty-five days of his advisory hearing on a delinquency petition first filed in October 2012, alleging offenses committed on October 16, 2012; (2) the state engaged in prosecutorial misconduct by making misrepresentations to the court in support of its motion to dismiss that petition without prejudice; and (3) he was exposed to double jeopardy when the state re-filed the petition in May 2013. He also claims the court abused its discretion in denying his motion to dismiss an amended delinquency petition alleging offenses committed in February 2013. We affirm the court's order for the following reasons.
¶2 In this appeal, E. challenges delinquency and probation revocation adjudications occurring after he was placed on juvenile intensive probation on September 27, 2012. Rather than present the background of these proceedings in a single chronology, we identify those facts relevant to the issues raised on appeal in the context of the separate adjudications of delinquency.
¶3 On October 10, 2012, the state filed a petition to revoke E.'s probation on the ground he had absconded from his placementand his whereabouts were unknown. On October 17, E. was apprehended, and the state filed a delinquency petition charging him with second-degree burglary, trafficking in stolen property, and two counts of weapons violations, all alleged to have occurred on October 16. After hearing argument about the deadline for an adjudication hearing, the juvenile court scheduled the adjudication to commence with a thirty-minute hearing on November 29, to be followed by a three-hour hearing on December 28.
¶4 E. then filed an "Objection to Setting Trial Beyond 45 Days/Motion to Accelerate Trial Date," in which he argued the juvenile court was required to complete the delinquency adjudication by December 3—forty-five days after the October 18 advisory hearing—and that it was insufficient, pursuant to Rule 29(B)(1), Ariz. R. P. Juv. Ct., for the court to merely commence the hearing by that date. On November 29, the court commenced the adjudication hearing, denied E.'s motion, and confirmed that the hearing would continue as scheduled on December 28.1
¶5 On December 28, the state informed the juvenile court that key witnesses "did not show up" and moved to dismiss the delinquency petition without prejudice. When the court inquired whether the subpoenaed witnesses had included law enforcement officers, the state said law enforcement witnesses were present, but lay witnesses were not. The state also told the court it would not be pursuing an order to show cause for the witnesses who had failed to appear. The court granted the state's motion and dismissed the petition without prejudice. On January 7, 2013, the court also dismissed, without prejudice, the petition to revoke E.'s probation, and ordered E.'s release from detention.2
¶6 On April 2, 2013, the state filed a new delinquency petition in which it reasserted the October 2012 charges, as well as a petition to revoke probation based on those allegations. E. filed a motion to dismiss the petitions on April 9, asserting the reinstatement of the October charges resulted in "a continuing violation of his right to a speedy trial under Rule 29(B)(1)." Although not entirely clear, it appears he argued the state should not have been permitted to refile its petition because the October 2012 petition, based on the same allegations, should have been dismissed with prejudice in December 2012. At a hearing on April 10, E. entered denials to the October 2012 charges, as alleged in the state's April 2 petition, and the juvenile court scheduled a delinquency adjudication hearing for April 23, with a hearing on E.'s motion to dismiss that petition to follow in May.
¶7 On April 23, the juvenile court adjudicated E. delinquent on charges of burglary, trafficking in stolen property, and possession of a firearm by a minor, three of the four counts alleged, and also found he had violated his conditions of probation. At the May 10 post-adjudication hearing on E.'s motion to dismiss, E. relied on the testimony of lay witnesses at the recent adjudication hearing to allege the state had misled the court in December 2012 when it sought to dismiss the October 2012 charges without prejudice. According to E., the state had allowed the court to infer that the case could not proceed because subpoenaed witnesses had failed to appear, which, E. alleged, "was not true." In particular, he noted that A.G., one of the victims of the October 2012 charges, testified he had not been served with a subpoena to appear at the hearing that had been scheduled for December 28, 2012, and had understood his attendance at the hearing was optional.
¶8 The juvenile court denied E.'s motion to dismiss, finding his right to a timely adjudication had not been violated. Citing Rule 18, Ariz. R. P. Juv. Ct., the court also stated that, had speedy adjudication concerns been implicated, it would not have found the interests of justice required a dismissal with prejudice even had it known the state had not subpoenaed A.G. See Ariz. R. P. Juv. Ct. 18(C) ().
¶9 Relying on Rule 29(B)(1), E. first argues the juvenile court violated his right to a completed delinquency adjudication hearing within forty-five days of his advisory hearing. The state contends, as it did below, that the rule requires only that an adjudication hearing be commenced—rather than completed—before the forty-five day deadline and that this requirement was met when the hearing commenced on November 29.3 After the court denied E.'s motion to accelerate the hearing, he filed a petition for special action relief in this court, and we declined jurisdiction. In this review on appeal, we decline to consider whether the court correctly construed the requirements of Rule 29(B)(1), because E. has failed to explain why, under these circumstances, the rule applies at all.
¶10 Rule 29(B)(1) provides, "A[ delinquency] adjudication hearing for a detained juvenile shall take place within forty-five (45) days of the date of the advisory hearing unless a motion for transfer or petition to revoke probation has been filed." E. does not dispute that he had been detained during the last quarter of 2012 pursuant to a petition to revoke his probation as well as a delinquency petition. Because a "petition to revoke probation ha[d] been filed," these proceedings fall within an express exception to the rule's requirement. Although E. has quoted the provision in full, he has failed to acknowledge the relevance of the exception in his case or to develop any argument that the exception does not apply to foreclose his claim.4 Accordingly, we decline to address his argument that thejuvenile court violated Rule 29(B)(1). See City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 88, 181 P.3d 219, 242 (App. 2008) (); see also Ariz. R. Civ. App. P. 13(a)(6) (); Ariz. R. P. Juv. Ct. 106(A) ().
¶11 Similarly, although E. additionally asserts, in conclusory fashion, that the juvenile court "violated [his] due process rights under the Sixth and Fourteenth Amendments to the United States Constitution, article II, § 24 of the Arizona Constitution," he provides no analysis to support such a claim. See State v. Parker, 231 Ariz. 391, ¶ 9, 296 P.3d 54, 61 (2013) (), citing Barker v. Wingo, 407 U.S. 514, 530 (1972); see also In re Cochise Cnty. Juv. Action No. DL89-00020, 161 Ariz. 154, 156, 776 P.2d 1080, 1082 (App. 1989) (). Any claim that his right to a speedy adjudication was violated is therefore waived. See State v. Moody, 208 Ariz. 424, n.9, 94 P.3d 1119, 1147 n.9 (2004) ().
¶12 Relying on Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984), E. maintains the state engaged in prosecutorial misconduct on December 28, 2012, when it moved to dismiss the October 2012 charges without prejudice, and that thismisconduct precluded his adjudication on the same charges in April 2013...
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