State v. Emedi

• Decision Date: 25 March 2021
• Docket Number: No. 1 CA-CR 19-0650,1 CA-CR 19-0650
• Citation: 484 P.3d 657,251 Ariz. 78
• Parties: STATE of Arizona, Appellee, v. Bisimo EMEDI, Appellant.
• Court: Arizona Court of Appeals

251 Ariz. 78

484 P.3d 657

STATE of Arizona, Appellee,

v.Bisimo EMEDI, Appellant.

No. 1 CA-CR 19-0650

Court of Appeals of Arizona, Division 1.

FILED March 25, 2021

Arizona Attorney General's Office, Phoenix, By Brian R. Coffman, Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix, By Aaron J. Moskowitz, Counsel for Appellant

Presiding Judge Paul J. McMurdie delivered the Court's opinion, in which Judge Cynthia J. Bailey and Judge Lawrence F. Winthrop joined.

McMURDIE, Judge:

¶1 Bisimo Emedi appeals his convictions and sentences for sexual assault, kidnapping, second-degree burglary, and failure to obey a police officer. We hold that a defendant's right under Arizona Rule of Criminal Procedure 17.4 to a settlement conference before a judicial officer other than the assigned trial judge is not personal to the defendant and therefore may be waived by his or her counsel. We affirm Emedi's convictions, but we vacate his sentences and remand for resentencing due to a sentencing error.

FACTS¹ AND PROCEDURAL BACKGROUND

¶2 Three police officers responded to an early-morning 9-1-1 call concerning a residential burglary at an apartment complex in Phoenix. When they arrived, the officers noticed that a screen had been pulled back, it had blood on it, and the window was broken. After no one answered their knock on the door, the officers forcibly entered the apartment. Inside a bedroom, they discovered an unclothed woman in severe distress on the floor, speaking on the phone with someone. In the bedroom closet, the officers found Emedi, unclothed from the waist down, clutching a young boy in front of him with his arm around the boy's chest. The officers separated Emedi and the child, handcuffed Emedi, and removed him from the apartment.

¶3 As an officer questioned Emedi, he ran and hid under a nearby car. Officers eventually found him and took him to the police station. Police gathered DNA samples from the woman and Emedi. Testing indicated Emedi's DNA on the woman's genitals and the woman's DNA on Emedi's penis. The State charged Emedi with two counts of sexual assault (Count 1 and Count 2); two counts of kidnapping (Count 3 (the woman) and Count 4 (the boy)); one count of second-degree burglary (Count 5); and one misdemeanor count for failure to obey a police officer (Count 6).

¶4 At a trial management conference shortly before the trial, the State and Emedi's counsel requested the court schedule a settlement conference. They also suggested they were willing to "waiv[e] the conflict" and move forward with a settlement conference that day before the assigned trial judge. After a break, the court specifically asked Emedi's counsel, "[D]o you wish to proceed with the settlement conference?" Emedi's counsel responded, "I do, Judge, and I would waive any potential conflict."

¶5 The judge then stepped down from the bench, and the settlement conference proceeded with the judge, the prosecutor, Emedi, and his counsel. The parties discussed with the judge (1) the case, including the evidence available to the State and the arguments that could be made concerning sentencing aggravators; (2) the State's plea offer; and (3) the possible sentence Emedi faced if convicted at trial. At the end of the discussion, Emedi's counsel said that Emedi wanted more time to consider the offer, and the parties agreed to discuss the matter at a later hearing. Emedi ultimately rejected the plea offer, and the same judge who conducted the settlement conference presided over his trial and sentencing.

¶6 After an eight-day trial, the jury acquitted Emedi on Count 1 but found him guilty on the remaining charges. During the aggravation phase, the jury found the State had proven a specifically enumerated statutory aggravating factor and an additional "catch-all" factor, A.R.S. § 13-701(D)(27), for each of Emedi's convictions except Counts 4 and 6. For Count 4, the jury found that the State had proven only two catch-all aggravating factors. On Count 6, the misdemeanor conviction, the aggravating factors did not play a part in establishing the sentencing range.

¶7 For Counts 2, 3, and 6, the court sentenced Emedi to concurrent terms of imprisonment totaling nine years. For Count 4, the court sentenced Emedi to a slightly aggravated term of seven years’ imprisonment to be served consecutively to the sentences imposed for Counts 2, 3, and 6. For Count 5, the court suspended the imposition of a sentence and placed Emedi on a five-year term of supervised probation to be served upon his discharge from prison. Emedi appealed, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

A. Emedi is Bound by His Counsel's Waiver of the Right to a Settlement Conference Before a Judicial Officer Other than the Assigned Trial Judge.

¶8 Emedi argues that Arizona Rule of Criminal Procedure 17.4(a)(2), which provides that an assigned trial judge may participate in settlement discussions only "if the parties consent," required the court to make a record of his "knowing and voluntary" waiver of "his right to not have a trial judge be the same jurist who conducted the settlement conference." In support of this argument, Emedi contends: (1) this court's decision in State v. Mendoza , 248 Ariz. 6, 455 P.3d 705 (App. 2019), established that a record of a knowing and voluntary waiver is required; (2) the language of the rule should be interpreted to require a defendant to personally waive the right to a settlement conference before a judicial officer other than the assigned trial judge; and (3) the nature of the right renders it personal to the defendant. Emedi requests that we remand to the superior court "for an examination of the extended record to determine whether [he] understood the right that was ... waived through his counsel's statement to the court, and whether [he] acquiesced in it." Because Emedi failed to raise this issue before the superior court, we apply fundamental-error review, and Emedi bears the burden to prove fundamental, prejudicial error. State v. Escalante , 245 Ariz. 135, 140, 142, ¶¶ 12, 21, 425 P.3d 1078, 1080 (2018).

¶9 At the outset, the State contends that we need not address Emedi's arguments concerning Rule 17.4(a)(2) because the discussion held at the trial management conference was an attempt to comply with State v. Donald , 198 Ariz. 406, 418, ¶ 46, 10 P.3d 1193, 1205 (App. 2000), not a settlement conference. See Mendoza , 248 Ariz. at 16–17, ¶ 18, 455 P.3d at 715-16 (holding that Donald hearings are exempt from the requirements of the rules governing settlement conferences). Although we agree that the content of the discussion among the assigned trial judge, the prosecutor, Emedi, and his counsel closely paralleled a Donald hearing, the fact remains that the assigned trial judge and the parties described it as a settlement conference and treated it as one. We see no basis to treat it differently.

1. Neither State v. Mendoza Nor the Plain Language of Rule 17.4(a)(2) Requires a Defendant's Personal Waiver.

¶10 Turning first to Emedi's arguments concerning Mendoza , we reject the assertion that it controls the outcome here. In that case, the assigned trial judge presided over an ad hoc settlement conference without first soliciting the defendant's consent. On appeal, this court considered whether that gave rise to a presumption of judicial vindictiveness in the ensuing trial. Mendoza , 248 Ariz. at 11, ¶ 1, 455 P.3d at 713. Mendoza first considered the scope of Rule 17.4(a)(2), id. at 14–17, ¶¶12–18, 455 P.3d at 713-16, and adopted a multi-factor, totality-of-the-circumstances test for assessing claims of judicial vindictiveness arising from a judge's impermissible participation in settlement negotiations. Id. at 18–20, ¶¶26–31, 455 P.3d at 717-19. Based on the record provided, Mendoza then concluded the assigned trial judge's statements during the discussions raised a presumption of judicial vindictiveness that constituted fundamental error and could not be rebutted by the State. Id. at 20–21, ¶¶ 32–35, 22, ¶¶38–40, 455 P.3d at 719-20.

¶11 Mendoza did not concern whether a defendant's right under Rule 17.4(a)(2) to a settlement conference before a judicial officer other than the assigned trial judge was personal to the defendant. Nor did it analyze whether the trial judge must make an affirmative record of a waiver of that right by the defendant himself. Indeed, the Mendoza court explicitly found that neither the defendant nor his counsel had consented to the assigned trial judge's participation in settlement discussions. 248 Ariz. at 16, ¶ 17, 455 P.3d at 715.

¶12 We also reject Emedi's argument that the phrase "the parties" in Rule 17.4(a)(2) mandates a personal waiver because it refers to the defendant personally rather than the defendant and his or her counsel collectively. We review the interpretation of court rules de novo . Mendoza , 248 Ariz. at 14, ¶ 12, 455 P.3d at 713. "If a rule's language is plain and unambiguous, we apply it as written without further analysis." Id. (quoting State v. Salazar-Mercado , 234 Ariz. 590, 592, ¶ 4, 325 P.3d 996, 998 (2014) ). "In determining the plain meaning of a specific provision, we read its words in context and ‘look to the [rule] as a whole.’ " Id. (alteration in original) (quoting Stambaugh v. Killian , 242 Ariz. 508, 509, ¶ 7, 398 P.3d 574, 575 (2017) ).

¶13 The Rules define "the defendant" as including "the attorney who represents the defendant" within the "context of certain rules" and further define the "parties" as "the State of Arizona and the defendants in a case." Ariz. R. Crim. P. 1.4(a), (d). The first sentence of Rule 17.4(a)(2) states that the court may order "counsel with settlement authority to participate in good faith discussions." The Rule's second sentence states that the assigned trial judge "may participate in this discussion only if the parties consent." (Emphasis added.) Reading these sentences together with the definitions in Rules 1.4(a...