Sulavka v. State

Decision Date08 December 2009
Docket NumberNo. 1 CA-CV 08-0267.,1 CA-CV 08-0267.
PartiesLisa M. SULAVKA, Plaintiff/Appellee, v. STATE of Arizona, Defendant/Appellant.
CourtArizona Court of Appeals

Robinson & Associates By Robert G. Robinson, Glendale, Attorneys for Plaintiff/Appellee.

Stephen M. Kemp, Peoria City Attorney By Shawna L. Brumbaugh, Assistant City Prosecutor, Peoria, Attorneys for Defendant/Appellant.

OPINION

BROWN, Judge.

¶ 1 In this appeal, we consider whether Lisa M. Sulavka, charged with shoplifting by concealment, has the right to a jury trial under the Arizona Constitution. For the following reasons, we hold she does have that right and therefore we affirm the order of the superior court.

BACKGROUND

¶ 2 The State filed a complaint in the Peoria Municipal Court charging Sulavka with shoplifting by concealment, in violation of Arizona Revised Statutes ("A.R.S.") section 13-1805(A)(5) (2001). In her motion to set, Sulavka asked for a jury trial. The municipal court denied her request, reasoning in part that shoplifting, "with its multiple classifications and particularized definitions (e.g. display for sale, establishment), is not a modern-day analog of common law larceny."

¶ 3 Sulavka filed a special action petition in the superior court, which accepted jurisdiction and found that the municipal court abused its discretion in denying Sulavka's request for a jury trial. The superior court noted that "[w]hile the issue is interesting, and subject to debate, [it] lacks the authority to hold that prior appellate case law on the issue is wrong," referring to a prior decision of this court which held that the charge of shoplifting justifies the right to trial by jury. See State v. Superior Court ("Espinosa"), 121 Ariz. 174, 176, 589 P.2d 48, 50 (App.1978). The superior court ordered the municipal court to grant Sulavka a jury trial "unless or until the Court of Appeals reconsiders its prior holding." The State then filed a timely notice of appeal and we have jurisdiction pursuant to Arizona Rule of Procedure for Special Actions 8(a).

DISCUSSION

¶ 4 The State argues that the superior court abused its discretion and erred as a matter of law in reversing the decision of the municipal court. Because eligibility for a jury trial is a question of law, we independently determine the merits of Sulavka's special action complaint. Ottaway v. Smith, 210 Ariz. 490, 492, ¶ 5, 113 P.3d 1247, 1249 (App. 2005).

¶ 5 The Sixth Amendment to the United States Constitution and Article 2, Sections 23 and 24 of the Arizona Constitution guarantee the right to a jury trial for the accused in a criminal prosecution. While the Sixth Amendment affords such a right to serious offenses, it does not extend to petty offenses. Duncan v. Louisiana, 391 U.S. 145, 159, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). In contrast, Section 23 of the Arizona Constitution provides that "[t]he right of trial by jury shall remain inviolate." Ariz. Const. art. 2, § 23. Both Sections 23 and 24 preserved, but did not create, the right to a jury trial as it existed under common law prior to statehood. Derendal v. Griffith, 209 Ariz. 416, 419, ¶ 8, 104 P.3d 147, 150 (2005) (citing Bowden v. Nugent, 26 Ariz. 485, 487-88, 226 P. 549, 550 (1924)). Because the United States Constitution does not contain language similar to Section 23, our constitution potentially affords a broader right to a jury trial than mandated under federal law. See id. at 419-20, ¶¶ 9-12, 104 P.3d at 150-51. Thus, jury eligibility under the Arizona Constitution turns on whether a statutory offense is sufficiently linked to a common law offense for which a jury trial was granted prior to statehood. Id. at ¶ 9.

¶ 6 In 1966, the Arizona Supreme Court adopted a test for deciding whether an offense is jury-eligible under the Federal or Arizona Constitution. Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966), overruled in part by Derendal, 209 Ariz. 416, 104 P.3d 147 (eliminating the "moral quality" prong of the Rothweiler test). The court defined three factors as relevant to that inquiry: (1) the relationship of the charged offense to common law crimes tried by a jury; (2) the severity of the possible penalty; and (3) the moral quality of the offense. Id. at 42, 410 P.2d at 483. Over time, Arizona courts viewed each prong of the Rothweiler test as providing an independent basis for the right to a jury trial. See, e.g., State v. Harrison, 164 Ariz. 316, 317, 792 P.2d 779, 780 (App.1990).

¶ 7 In 1989, the United States Supreme Court re-visited the right to a jury trial under the Sixth Amendment. Blanton v. City of N. Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989). The Court abandoned earlier decisions focusing on the nature of an offense and whether it was triable by jury at common law in favor of a more objective standard. Id. at 541, 109 S.Ct. 1289. The Court held that an offense with a maximum sentence of less than six months is presumptively a petty offense and therefore the constitutional right to a jury trial does not attach. Id. at 543, 109 S.Ct. 1289.

¶ 8 On several occasions our supreme court declined to re-examine the Rothweiler test, reasoning that Arizona affords its citizens greater access to jury trials than required under the United States Constitution. See, e.g., Benitez v. Dunevant, 198 Ariz. 90, 94, ¶ 10, 7 P.3d 99, 103 (2000); see also State ex rel. McDougall v. Strohson, 190 Ariz. 120, 126-27, 945 P.2d 1251, 1257-58 (1997). But in 2005, the court directly addressed Blanton's implications on the test for jury eligibility in Arizona. Derendal, 209 Ariz. at 419, ¶ 6, 104 P.3d at 150.

¶ 9 In Derendal, our supreme court determined that Article 2, Section 23 mandates retention of the first prong of the Rothweiler test—the relationship of the offense to common law crimes. Id. at ¶ 9. Recognizing that the phrase "shall remain inviolate," preserves the right to jury trial as it existed at the time Arizona adopted its constitution, the court concluded that the right to a jury trial is guaranteed "for any defendant charged with an offense for which a jury trial was granted prior to statehood." Id. The court further recognized that "when the right to jury trial for an offense existed prior to statehood, it cannot be denied for modern statutory offenses of the same `character or grade.'" Id. at ¶ 10. Thus, to determine whether Section 23 assures a right to a jury trial, we consider whether a modern crime has a common law antecedent. Id. To reach this determination, we evaluate whether the charged offense contains elements "comparable" or "substantially similar" to those found in a jury-eligible common law offense. Id. at 419, 425, ¶¶ 10, 39, 104 P.3d at 150, 156; Crowell v. Jejna, 215 Ariz. 534, 536-37, ¶ 7, 161 P.3d 577, 579-80 (App. 2007).

¶ 10 If a modern statutory offense does not have a common law antecedent, then the right to a jury trial depends on whether the offense falls under the guarantee set forth in Article 2, Section 24 of the Arizona Constitution, which provided the basis for the second prong of the Rothweiler test. Because this provision is identical to the Sixth Amendment, Arizona courts have construed it in a similar manner to the United States Constitution. Fushek v. State, 218 Ariz. 285, 288, ¶ 8, 183 P.3d 536, 539 (2008). Thus, the court in Derendal adopted Blanton's bright-line rule to distinguish between serious and petty crimes, finding that if our legislature defines an offense as a misdemeanor punishable by no more than a six-month prison sentence, it is presumptively a petty offense. 209 Ariz. at 422, ¶ 21, 104 P.3d at 153. The court provided specific criteria for deciding if an offense is serious despite having only a relatively short sentence. Id. at 422-23, ¶¶ 21-26, 104 P.3d at 153-54 (requiring penalty to arise directly from statutory law, with severe consequences that apply uniformly to defendants convicted of the offense). As such, the court adopted only a modified version of the Blanton test.1

¶ 11 Unlike the first two prongs of the Rothweiler test, our supreme court found the third prong, the moral quality of an offense, to be without "constitutional pedigree." Id. at 423, ¶ 27, 104 P.3d at 154. Finding that this inquiry became increasingly subjective and ambiguous, yielding "inexplicable results," the court expressly disavowed it. Id. at 424, ¶ 32, 104 P.3d at 155. In doing so, the court noted that its decision to overrule Rothweiler on the third prong did not offend principles of stare decisis nor would it severely curtail the right to a jury trial in Arizona. Id. at ¶ 33. Rejecting the defense argument that overruling the "moral quality" prong would severely curtail the right to a jury trial, the court concluded that its decision would have "little effect upon the number of offenses for which our constitution mandates a jury trial." Id. at ¶ 35. The court recognized that during the almost forty years since Rothweiler, the court of appeals had labeled misdemeanor offenses as crimes of moral turpitude only four times. Id. And, in two of those cases, the court of appeals also "found the offense to have a common law antecedent requiring a jury trial." In one of the two cases, Espinosa, this court applied the Rothweiler test and held that the defendant, charged with misdemeanor shoplifting, was entitled to have his case considered by a jury under our constitution. Espinosa, 121 Ariz. at 176, 589 P.2d at 50. We reached this result based on the severe maximum penalty, the moral turpitude of the offense, and the close relationship of shoplifting to common law larceny. Id.

¶ 12 Here, the State contends that Espinosa is no longer good law, having been implicitly overruled by Derendal because Espinosa was decided using the Rothweiler test. Admittedly, the decision in Espinosa is devoid of comparative analysis addressing the elements of shoplifting and larceny and its precedential value is weak. Nonetheless, the court...

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