Kaniowsky v. Pima Cnty. Consol. Justice Court

• Decision Date: 21 March 2016
• Docket Number: No. 2 CA–CV 2015–0157.,2 CA–CV 2015–0157.
• Citation: 239 Ariz. 326,371 P.3d 654
• Parties: Peter J. KANIOWSKY, Plaintiff/Appellant, v. The PIMA COUNTY CONSOLIDATED JUSTICE COURT; the Hon. Maria L. Felix, A Judge thereof; and the Pima County Attorney's Office, Defendants/Appellees.
• Court: Arizona Court of Appeals

239 Ariz. 326

371 P.3d 654

Peter J. KANIOWSKY, Plaintiff/Appellant

v.The PIMA COUNTY CONSOLIDATED JUSTICE COURT; the Hon. Maria L. Felix, A Judge thereof; and the Pima County Attorney's Office, Defendants/Appellees.

No. 2 CA–CV 2015–0157.

Court of Appeals of Arizona, Division 2.

March 21, 2016.

Benavidez Law Group, P.C. By Javier Alatorre, Tucson, Counsel for Plaintiff/Appellant.

Barbara LaWall, Pima County Attorney By Jacob R. Lines, Tucson, Counsel for Defendants/Appellees.

Presiding Judge HOWARD authored the opinion of the Court, in which Judge ESPINOSA and Judge STARING concurred.

OPINION

HOWARD

, Presiding Judge:

¶ 1 Peter Kaniowsky appeals from the trial court's denial of relief in his special action challenging the Pima County Justice Court's denial of his request for a jury trial on five unlawful imprisonment charges. Kaniowsky argues he is entitled to a jury trial because unlawful imprisonment was a jury-eligible offense at common law. Because we agree with Kaniowsky, we vacate the court's order and remand for further proceedings.

Factual and Procedural Background

¶ 2 The relevant facts are not in dispute. Kaniowsky was charged in justice court with five counts each of assault and unlawful imprisonment. He filed a motion requesting a jury trial for the false imprisonment counts,¹ which the court denied. He then filed a complaint for special action in superior court, arguing he was entitled to a jury trial because false imprisonment was a jury-eligible offense at common law. The superior court accepted jurisdiction but denied relief. It reasoned that Amancio v. Forster, 196 Ariz. 95, 98, 993 P.2d 1059, 1062 (App.1999)

, which concluded that unlawful imprisonment was not a jury-eligible offense based on its seriousness, was controlling and thus Kaniowsky was not entitled to a jury trial. We have jurisdiction over Kaniowsky's appeal pursuant to A.R.S. §§ 12–120.21(A)(1) and 12–2101(A)(1). See Ariz. R.P. Spec. Actions 8(a).

Applicability of Amancio

¶ 3 Kaniowsky argues that the superior court erred by relying on Amancio because it did not reach the question of whether unlawful imprisonment had a jury-eligible counterpart in common law. When the superior court accepts jurisdiction of a special action, but denies relief, we review for an abuse of discretion. Merlina v. Jejna, 208 Ariz. 1, ¶ 6, 90 P.3d 202, 204 (App.2004)

. Whether a defendant is entitled to a jury trial, however, is a question of law we review de novo. Urs v. Maricopa Cty. Attorney's Office, 201 Ariz. 71, ¶ 2, 31 P.3d 845, 846 (App.2001). An error of law may constitute an abuse of discretion. State v. Wall, 212 Ariz. 1, ¶ 12, 126 P.3d 148, 150 (2006).

¶ 4 At the time Amancio was decided, our supreme court had identified three factors as relevant to determining a defendant's right to a jury trial, any one which could independently give rise to jury eligibility. See Derendal v. Griffith, 209 Ariz. 416, ¶ 5, 104 P.3d 147, 149 (2005)

(overruling Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966) ). The existence of a jury-eligible common law antecedent was one factor and the seriousness of the offense was another. Id.

¶ 5 The defendant in Amancio argued the seriousness of the offense entitled him to a jury trial and conceded that unlawful imprisonment did not have a jury-eligible common law antecedent. 196 Ariz. 95, ¶ 7, 993 P.2d at 1060

. The court, in its analysis, thus focused solely on the seriousness of the offense. Id. ¶¶ 7–15.

¶ 6 The defendant's concession deprived the court of “the opportunity to address [the] argument that” unlawful imprisonment had a jury-eligible common law antecedent, thus waiving the issue for review. Harris v. Cochise Health Sys., 215 Ariz. 344, ¶ 18, 160 P.3d 223, 229 (App.2007)

; see also

State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (insufficient argument on appeal waives claim). That waiver meant the court was not “fully advised on the question.” Creach v. Angulo, 186 Ariz. 548, 552, 925 P.2d 689, 693 (App.1996). Consequently, the court's statement that “there was ... no entitlement to a jury trial under the common law,” Amancio, 196 Ariz. 95, ¶ 16, 993 P.2d at 1062, was dictum, Creach, 186 Ariz. at 552, 925 P.2d at 693 ; see also

Town of Chino Valley v. City of Prescott, 131 Ariz. 78, 81, 638 P.2d 1324, 1327 (1981) (court's statement on question not necessarily decided in case is dictum). And in any event, based on the following analysis, we conclude that any statement in Amancio indicating unlawful imprisonment does not have a common law antecedent is an incorrect statement of the law.

False Imprisonment at Common Law

¶ 7 Kaniowsky argues that unlawful imprisonment pursuant to A.R.S. § 13–1303

is the modern day analog to the jury-eligible, common law offense of false imprisonment. Our supreme court has delineated a “two step process” to determine whether a defendant is guaranteed a right to a jury trial for a particular offense. Derendal, 209 Ariz. 416, ¶¶ 36–37, 104 P.3d at 156 ; see also Ariz. Const. art. 2, § 23 ; Ariz. Const. art. 2, § 24. Under the first step, a court must determine whether the offense “has a common law antecedent that guaranteed a right to trial by jury at the time of Arizona statehood.” Derendal, 209 Ariz. 416, ¶ 36, 104 P.3d at 156 ; see also Ariz. Const. art. 2, § 23. If the charged offense has a common law antecedent for which a jury trial right existed, the inquiry ends and “the defendant's right to a trial by jury is established.” Derendal, 209 Ariz. 416, ¶ 36, 104 P.3d at 156. If this first prong is not satisfied, the court, under the second prong, “must analyze the seriousness of the offense under Article 2, Section 24.” Id. ¶ 37.

¶ 8 The test for determining whether a common law offense is the antecedent of a modern offense is whether the modern offense contains “comparable” or “substantially similar” elements to the common law offense. Id. ¶¶ 10–11; see also Sulavka v. State, 223 Ariz. 208, ¶ 9, 221 P.3d 1022, 1024 (App.2009)

. Importantly, the two offenses do not need to be “identical, or [even] nearly so,” but rather must share a “fundamental character.” Crowell v. Jejna, 215 Ariz. 534, ¶¶ 16, 22, 161 P.3d 577, 581–83 (App.2007).

¶ 9 Unlawful imprisonment is committed by knowingly “restrict[ing] a person's movements without consent, without legal authority, and in a manner which interferes substantially with such person's liberty, by either moving such person from one place to another or by confining such person.” A.R.S. §§ 13–1303(A)

, 13–1301(2). At common law, false imprisonment required “[t]he detention of the person” and “[t]he unlawfulness of such detention.” 3 William Blackstone, Commentaries *127; 4 Blackstone, Commentaries *218; see also William C. Robinson, Elementary Law § 219 (1882) (“False imprisonment is the unlawful detention of the person of another.”); 19 Cyclopedia of Law and Procedure 376 (William Mack, ed., 1905) (“The gist of [false imprisonment] is the actual and unlawful restraint or detention of one person against his will by another.”).

¶ 10 Unlawful imprisonment and common law false imprisonment are clearly “substantially similar” offenses, Derendal, 209 Ariz. 416, ¶¶ 10, 39, 104 P.3d at 150, 156

, and share the “fundamental character” of prohibiting the unlawful detention, or restriction, of another person's movement, Crowell, 215 Ariz. 534, ¶¶ 16, 22, 161 P.3d at 581–83. We therefore conclude that common law false imprisonment is the direct antecedent of unlawful imprisonment pursuant to § 13–1303. See

Derendal, 209 Ariz. 416, ¶¶ 10, 39, 104 P.3d at 150, 156.

¶ 11 The state, however, argues the offenses are not comparable because false imprisonment at common law was a misdemeanor, but unlawful imprisonment is a felony “unless the victim is released voluntarily by the defendant without physical injury in a safe place before arrest in which case it is a class 1 misdemeanor.” § 13–1303(C)

. Thus, the state concludes, “the common law antecedent for our felony was a misdemeanor, while our misdemeanor is different from the common law antecedent because it requires additional facts to become a misdemeanor.”

¶ 12 The state's argument does not undermine our conclusion that the fundamental character of unlawful imprisonment is the same now as at common law. The analysis of whether the common law offense is the antecedent of the modern offense, is whether “the modern offense contains elements comparable to those found in the common law offense.” Derendal, 209 Ariz. 416, ¶ 10, 104 P.3d at 150

(emphasis added). And whether the victim was safely released is not an element of unlawful imprisonment, but a mitigating factor the defendant bears the burden of proving. State v. Eagle, 196 Ariz. 188, ¶¶ 9–11, 994 P.2d 395, 397–98 (2000) (mitigating factors affecting classification not statutory element of crime; safe release of victim not element of unlawful imprisonment); see also § 13–1303(C). The state has not cited any authority, nor have we found any, supporting the proposition that courts must additionally compare the classification of the modern and common law offense, as well. Because the statutory elements of unlawful imprisonment are substantially similar to those of common law false imprisonment, we reject the state's argument.

¶ 13 We next turn to whether common law false imprisonment was a jury-eligible offense at common law. Derendal, 209 Ariz. 416, ¶ 36, 104 P.3d at 156

. Kaniowsky argues that because false imprisonment was an “indictable” offense at common law, it required a jury trial. See

Urs, 201 Ariz. 71, n. 3, 31 P.3d at 847 n. 3 (“ ‘Indictable offenses' at common law were jury-eligible crimes.”); see also

District of Columbia v. Colts, 282 U.S. 63, 73, 51 S.Ct. 52, 75 L.Ed. 177 (1930). The state, however, argues that, contrary to Urs and Colts, “indictable” does not indicate whether an offense was jury-eligible, only that it was “cognizable as a crime.”

¶ 14 The state contends that because misdemeanors, such as false imprisonment,...