State ex rel. Dean v. Dolny, CV-88-0272-PR

• Citation: 778 P.2d 1193,161 Ariz. 297
• Decision Date: 15 June 1989
• Docket Number: No. CV-88-0272-PR,CV-88-0272-PR
• Parties: STATE of Arizona ex rel. Frederick S. DEAN, Petitioner/Appellant, v. The Honorable Carmen DOLNY, a Magistrate of the City Court of the City of Tucson; the Superior Court of the State of Arizona, County of Pima; the Honorable John Hawkins, a Judge thereof; Respondents, and Timothy HARING, Real Party in Interest/Appellee. STATE of Arizona ex rel. Frederick S. DEAN, Petitioner/Appellant, v. The Honorable Margarita BERNAL, a Magistrate for the City Court of the City of Tucson; the Superior Court of the State of Arizona, County of Pima, the Honorable Thomas Meehan, a judge thereof; Respondents, and Marvin LITTLES, Real Party in Interest/Appellee.
• Court: Supreme Court of Arizona

Page 1193

778 P.2d 1193

161 Ariz. 297

STATE of Arizona ex rel. Frederick S. DEAN, Petitioner/Appellant, v. The Honorable Carmen DOLNY, a Magistrate of the City Court of the City of Tucson; the Superior Court of the State of Arizona, County of Pima; the Honorable John Hawkins, a Judge thereof; Respondents and Timothy HARING, Real Party in Interest/Appellee STATE of Arizona ex rel. Frederick S. DEAN, Petitioner/Appellant, v. The Honorable Margarita BERNAL, a Magistrate for the City Court of the City of Tucson; the Superior Court of the State of Arizona, County of Pima, the Honorable Thomas Meehan, a judge thereof; Respondents and Marvin LITTLES, Real Party in Interest/Appellee.

No. CV-88-0272-PR.

Supreme Court of Arizona, In Banc.

June 15, 1989.

Reconsideration Denied Sept 19, 1989.

[161 Ariz. 298] Frederick S. Dean, Tucson City Atty. by M.J. Raciti, L. Michael Anderson and Christopher L. Straub, Asst. City Attys., Tucson, for petitioner/appellant.

Dunscomb & Shepherd by Denice R. Shepherd, Tucson, for real parties in interest.

OPINION

MOELLER, Justice.

JURISDICTION

These two consolidated cases are both misdemeanor prosecutions for possession of marijuana. The court of appeals, in a published opinion, reversed lower court orders granting jury trials in these cases, 157 Ariz. 599, 760 P.2d 599 (1988). We granted review and have jurisdiction pursuant to article 6 § 5(3) of the Arizona Constitution and Rule 23 of the Arizona Rules of Civil Appellate Procedure.

ISSUE

Whether a defendant criminally charged with unlawful possession of marijuana, designated as a Class 1 misdemeanor, is entitled to a jury trial.

BACKGROUND

The court of appeals consolidated the cases of Timothy Haring and Marvin Littles. Both cases involve essentially the same set of facts. Each defendant was arrested on outstanding warrants: Haring on August 19, 1987, and Littles on August 29, 1987. In each case, a search incident to arrest revealed a small amount of marijuana. Each defendant was charged with unlawful possession of less than one pound of marijuana not for sale. A.R.S. § 13-3405(B)(1) makes such offenses Class 6 felonies. However, pursuant to written policies of the Pima County Attorney, felony prosecution was automatically declined and the cases were filed as Class 1 misdemeanors, punishable by up to six months in jail and a $1,000 fine, plus applicable surcharges. The defendants were arraigned before different city magistrates, and each case was set for a jury trial. The city objected to the jury settings, arguing that under the decisions in State v. Moreno, 134 Ariz. 199, 655 P.2d 23 (App.1982), and State ex rel. Dean v. City Court of Tucson, 141 Ariz. 361, 687 P.2d 369 (App.1984), the defendants were not entitled to a jury trial.

The city petitioned the Pima County Superior Court for special action relief in both cases; the court denied relief. The city then appealed to Division Two of the court of appeals. The court of appeals held that the defendants were not entitled to a jury trial.

COURT OF APPEALS DECISION

The court of appeals first concluded that federal constitutional law did not require a jury trial in these cases. Recent federal case law supports the court's opinion, at least where the constitutional analysis is limited primarily to a consideration of the severity of the potential punishment. See Blanton v. City of North Las Vegas, Nev., 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989). The court of appeals then looked to the rules developed in Arizona for determining the circumstances under which state law requires a jury trial. The appeals court correctly noted that we have applied a three-pronged test to answer this question. Rothweiler v. Superior Court, 100 Ariz. 37, 42, 410 P.2d 479, 483 (1966).

The three prongs of the Rothweiler test are: (1) the severity of the possible penalty; (2) the moral quality of the crime; and (3) the relationship of the crime to common law crimes. The court of appeals concluded that the defendants did not qualify for a jury trial under Rothweiler.

The court reasoned that because the possible penalty for a Class 1 misdemeanor is "only" a $1,000 fine and six months in jail, the penalty was not severe enough to necessitate a jury trial. State v. City Court of Tucson, 157 Ariz. 599, 602, 760 P.2d 599, 602 (1988) (citing State ex rel. Baumert v. Superior Court, 127 Ariz. 152, 618 P.2d 1078 (1980)). The court also determined that because no common law counterpart to possession of marijuana existed, that aspect of Rothweiler was unavailable. The court concluded finally that possessing marijuana does not involve moral turpitude; thus the "moral quality" prong of Rothweiler also did not apply.

DISCUSSION

The right to a trial by jury is guaranteed in article 2, §§ 23 and 24 of the Arizona Constitution. ¹ It has been held that jury trial is not available to all criminal defendants, but rather only to those defendants charged with serious, as opposed to petty, crimes. See, e.g., Goldman v. Kautz, 111 Ariz. 431, 531 P.2d 1138 (1975); Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966); see also Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970) (establishing standard for "petty" under the federal constitution).

Our legislature has defined "petty offense" as "an offense for which a sentence of a fine only is authorized by law." A.R.S. § 13-105(24). We agree with the observations of Judge Contreras, dissenting in State v. Moreno, 134 Ariz. 199, 655 P.2d 23 (App.1982), that, while the statutory definition of "petty" is not controlling on the issue of right to jury trial, it is entitled to considerable deference, particularly given the fact that our legislature has defined the terms "felony," "misdemeanor,"," and "petty" in a mutually exclusive manner. See A.R.S. § 13-105(13, 18 and 24). We find it significant that the legislature does not consider any offense "petty" which could result in any jail time, let alone six months.

We turn now to a consideration of Arizona case law. As we have noted, this court in Rothweiler established a three-part standard by which to determine whether an offense is petty or serious and, thus, whether a defendant is entitled to a jury trial. The Rothweiler court determined that a defendant in a DUI case was entitled to a jury trial because of the seriousness of the possible penalty together with the potentially grave consequences flowing from conviction. ² Rothweiler, 100 Ariz. at 44-45, 410 P.2d at 484-85.

Although the Rothweiler opinion referred to the "grave consequences" as implicating the moral quality of the crime, this suggests too narrow an inquiry. The Rothweiler court was undoubtedly concerned with the stigma associated with certain crimes, but it was primarily concerned with the nature of the consequences resulting from a conviction, such as the impact that losing one's driver's license could have on the defendant's ability to earn a living. Id.

Certainly, being charged with a crime of moral turpitude warrants a jury trial. ³ Damage to reputation, humiliation, and loss of dignity beyond that associated with all crimes brings moral turpitude crimes, by their very nature, into the realm of serious cases. However, being tried for a crime that does not fall within the definition of moral turpitude may also be serious enough to warrant a jury trial, chiefly because of the grave consequences resulting from conviction. Thus, we regard it as a mistake to read Rothweiler to hold that the moral quality prong only applies to moral turpitude crimes.

In State v. Pima County Superior Court, 121 Ariz. 174, 589 P.2d 48 (App.1978), Division Two of the court of appeals, concerned about the accused's ability to earn a living, ruled that a misdemeanor charge of shoplifting required a jury trial. The court illustrated the impact of a conviction by listing a number of professions or occupations in which one's ability to obtain a license could be restricted as a result of a shoplifting conviction. Id. at 175 n. 3, 589 P.2d at 49 n. 3 (e.g., attorneys, A.R.S. § 32-273 (repealed); nurses, A.R.S. § 32-1663(A)(2); security guards, A.R.S. § 32-2615(3)).

We conclude that a conviction for possession of marijuana results in consequences sufficiently grave to warrant a jury trial. Not only could one convicted of possession of this illegal drug expect decreased employment opportunities, one could also reasonably expect the imposition of conditions to be placed on employment or potential employment, such as drug counselling, treatment, or testing. Moreover, certain occupational and professional licenses could conceivably be unavailable to these defendants should they be convicted (e.g., pharmacists, A.R.S. § 32-1927(A)(4) and (5), attorneys, Ariz.R.S.Ct. 59(b)(1)(B)). These types of consequences bring the crimes out of the category of petty cases and into the category of serious cases, despite the possible penalty being "only" a $1,000 fine and six months in jail. Thus, defendants are entitled to a jury trial. ⁴

Having resolved the cases before us, it is unnecessary to go further and decide whether the Arizona Constitution requires a jury trial in all criminal cases, including those tried in non-record courts. We recognize that territorial statutes dating as far back as 1871 and remaining in force at the time the constitution was adopted, specifically provided for a jury upon demand in all criminal cases, including those in non-record courts. Penal Code, Title XXII, § 1318 (1913); Penal Code, Title XXI, § 1191 (1901); Penal Code, Title XXII, ch. 1, § 2217 (1887), Laws, ch. 11, § 583 (1871). We also note that the language of article 2, § 23 of the Arizona Constitution at the time of adoption clearly contemplated jury trials in non-record courts:

The right of trial by jury shall remain inviolate, but provision may be made by law for a jury of a number of less than twelve in courts not of record.... (Amended to its current form, ...