Papazian v. Weiss, 1 CA-SA 08-0165 (Ariz. App. 10/2/2008)
| Decision Date | 02 October 2008 |
| Docket Number | 1 CA-SA 08-0165 |
| Parties | JAMES MICHAEL PAPAZIAN, Petitioner, v. THE HONORABLE RICHARD WEISS, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of Mohave, Respondent Judge, THE STATE OF ARIZONA, Real Party in Interest. |
| Court | Arizona Court of Appeals |
Law Offices of David Michael Cantor, Tempe, By David Michael Cantor, Todd Nolan, Attorneys for Petitioner.
Lake Havasu City Attorney's Office, Phoenix, By Charles F. Yager, Attorneys for Real Party in Interest.
¶1 Following a bench trial in Lake Havasu City Municipal Court, James Papazian was found guilty of theft, criminal damage, and assault, all misdemeanors. The magistrate placed Papazian on probation for three years. Papazian thereafter filed a petition for post-conviction relief, in which he argued that the trial court failed to obtain a knowing, voluntary, and intelligent waiver of his right to jury trial. The municipal court denied the petition and Papazian requested review in the Mohave County Superior Court. The superior court concluded that Papazian waived his jury-trial right because he did not demand a trial by jury as required by Arizona Revised Statutes (A.R.S.) section 22-320 (2002). The superior court also stated that it did "not decide whether any conflict exists between a constitutional waiver of a jury trial in a lower court proceeding and the statute requiring an affirmative act." Papazian then filed this petition for special action relief.
¶2 The pretrial hearing at which the parties discussed whether there would be a jury trial was not recorded and the parties offer differing interpretations as to whether defense counsel, a criminal law specialist, intended to forego his client's right to a jury trial or simply assumed that no such right existed. Regardless, it is undisputed both that Papazian did not personally waive his right to a jury trial and that he never affirmatively requested that he be tried by a jury.
¶3 We accept jurisdiction because "special action is a proper method for determining the existence of the right to a jury trial." Benitez v. Dunevant, 194 Ariz. 224, 225, ¶ 4, 979 P.2d 1017, 1018 (App. 1998), vacated on other grounds by Benitez v. Dunevant, 198 Ariz. 90, 7 P.3d 99 (2000). In addition, the superior court rendered its judgment on appeal, and Papazian therefore lacks any further remedy by direct appeal. See A.R.S. § 22-375(B) (2002); Ariz. R.P. Spec. Act. 1(a). Moreover, jurisdiction is appropriate because the petition presents a pure question of law. See Guthrie v. Jones, 202 Ariz. 273, 274, ¶ 4, 43 P.3d 601, 602 (App. 2002).
¶4 Papazian asserts that he had a federal and state constitutional right to a jury trial on the misdemeanor theft charge, which was denied him because the trial court failed to obtain a knowing, voluntary, and intelligent waiver of his jury trial right before proceeding with a bench trial. See State v. Butrick, 113 Ariz. 563, 565-66, 558 P.2d 908, 910-11 (1976) ().
¶5 We review de novo whether a particular crime is jury eligible. State v. Le Noble, 216 Ariz. 180, 181, ¶ 8, 164 P.3d 686, 687 (App. 2007). The defendant bears the burden of proving the allegations of fact contained in a petition for post-conviction relief by a preponderance of the evidence. Ariz. R. Crim. P. 32.8(c).
¶6 "The right to a jury trial is a fundamental right secured to all persons accused of a crime by the Sixth Amendment of the United States Constitution and, in Arizona, by Article 2, [Sections] 23 and 24 of the Arizona Constitution." Butrick, 113 Ariz. at 565, 558 P.2d at 910. The Sixth Amendment right to a jury trial presumptively does not attach to any criminal offense for which the "maximum authorized period of incarceration" is "six months or less." Blanton v. City of Las Vegas, 489 U.S. 538, 543 (1989). Because Papazian was charged only with misdemeanors and was not exposed to a penalty in excess of six months incarceration for any single offense, the charges against him were presumptively not jury-trial eligible under the Sixth Amendment. However, a defendant may "rebut the [Blanton] presumption by showing that the legislature had `pack[ed] an offense it deems `serious' with onerous penalties that nonetheless do not puncture the 6-month incarceration line.'" Derendal v. Griffith, 209 Ariz. 416, 421, ¶ 16, 104 P.3d 147, 152 (2005) (quoting Blanton, 489 U.S. at 543).
¶7 Article 2, Section 24, provides that "[i]n criminal prosecutions, the accused shall have the right to . . . a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed." Because the language in Section 24 is nearly the same as that of the Sixth Amendment, which guarantees the right to jury trial "[i]n all criminal prosecutions," our supreme court has "construed it consistently with the federal constitution to preserve the right to jury trial only for `serious,' as opposed to `petty,' crimes." Derendal, 209 Ariz. at 420, ¶ 13, 104 P.3d at 151. Because the legislature has classified theft of property or services valued at less than one thousand dollars as a misdemeanor punishable by no more than six months incarceration, the theft offense charged against Papazian was presumptively a petty offense for which he was not entitled to a jury trial by Section 24. Id. at 422, ¶ 21, 104 P.3d at 153. Although, under Blanton, a defendant may rebut that presumption by showing the existence of "additional grave consequences" that "reflect a legislative determination that the offense is indeed `serious,'" id., Papazian has not attempted to do so here. Cf. Fushek v. State, 218 Ariz. 285, 294, ¶ 30, 183 P.3d 536, 543 (2008) (). Therefore, we conclude that Papazian was not entitled to a jury trial under either the Sixth Amendment or Section 24.
¶8 The remaining issue is whether Papazian was nonetheless guaranteed a jury trial by Article 2, Section 23, which provides in relevant part: "The right of trial by jury shall remain inviolate." It is well-settled that Section 23 does not create a substantive right, but rather preserves "the right to jury trial as it existed in Arizona prior to statehood." Derendal, 209 Ariz. at 419, ¶ 8, 104 P.3d at 150.
To determine whether Article 2, Section 23 assures the right to trial by jury, we consider whether a modern crime has a common law antecedent. We regard a jury-eligible, common law offense as an antecedent of a modern statutory offense when the modern offense contains elements comparable to those found in the common law offense.
Id. at 419, ¶ 10, 104 P.3d at 150; see also Le Noble, 216 Ariz. at 182, ¶ 10, 164 P.3d at 688 ().
¶9 Papazian asserts that, under Derendal, he has a constitutional right to a jury trial because misdemeanor theft "was a crime that was triable to a jury prior to the adoption of the Arizona Constitution." Throughout the course of the post-conviction relief proceedings, and now, before us, the State has agreed with Papazian that the misdemeanor theft offense for which he was tried was a jury-eligible offense at common law.1 Instead citing A.R.S. § 22-320, the State argues that Papazian waived his right to jury trial by not affirmatively requesting one. Papazian contends, however, that § 22-320 applies only to a "statutorily available jury trial right" and therefore does not apply to his "constitutional" jury trial right.
¶10 When Papazian was tried in November 2007, § 22-320 provided:
A. A trial by jury shall be had if demanded by either the state or defendant. Unless the demand is made at least five days before commencement of the trial, a trial by jury shall be deemed waived.
B. Upon demand being made for a jury trial, the justice of the peace or presiding officer of a police court shall issue an order directed to the sheriff of the county, or to any constable, marshal, policeman or member of the court staff to summon the number of qualified persons specified in the order to appear at the time and place therein fixed to serve as jurors in the action. If the required number of jurors do not appear, an additional order or orders may be issued.
Paragraph B was deleted effective January 1, 2008. 2007 Ariz. Sess. Laws, ch. 199, §§ 29, 31.
¶11 We cannot agree with Papazian's claim that § 22-320 regulates only jury trial rights created by statute. First, as our supreme court has explained, § 22-320 is procedural in nature and does not itself grant any substantive jury trial right. Goldman v Kautz, 111 Ariz. 431, 432, 531 P.2d 1138, 1139 (1975) () (emphasis added). Second, other than certain driving under the influence offenses, which contain their own waiver requirements, A.R.S. § 28-1381(F) (Supp. 2007) (); A.R.S. § 5-397(C) (Supp. 2007) (), that have been interpreted as granting a substantive right to a jury trial, Manic v. Dawes, 213 Ariz. 252, 254, ¶ 9, 141 P.3d 732, 734 (App. 2006), we are unaware of any misdemeanor offense for which a defendant has a right to jury trial in justice or municipal court that is not constitutionally based. In effect, Papazian's ...
To continue reading
Request your trial