                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                        STATE OF ARIZONA, Appellee,

                                          v.

                         PATRICK KUDER, Appellant.

                              No. 1 CA-CR 13-0187
                               FILED 3-6-2014


            Appeal from the Superior Court in Yavapai County
                         No. P1300CR201200799
                 The Honorable Michael R. Bluff, Judge

                                    AFFIRMED


                                    COUNSEL

Nicole Farnum, Phoenix
Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee



                        MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court,
in which Judge John C. Gemmill and Judge Randall M. Howe joined.
                            STATE v. KUDER
                           Decision of the Court

T H U M M A, Judge:

¶1            Defendant Patrick Kuder appeals from his convictions and
resulting sentences, arguing the Yavapai County Superior Court should
not have presided over the case because the victim was a court employee.
Finding no reversible error, Kuder’s convictions and resulting sentences
are affirmed.

                FACTS 1 AND PROCEDURAL HISTORY

¶2            Starting in April 2012, Kuder and the victim lived together
as a couple in the victim’s home. Kuder worked at a machine shop and the
victim worked as a court clerk at the Yavapai County Superior Court in
Prescott.

¶3            In July 2012, while in Kuder’s car on the way home from a
bar, Kuder and the victim began arguing. The victim and her friend got
out of the car and Kuder apparently drove home without them. The
victim’s friend then drove the victim to her home, where Kuder was
already in bed. The argument then reignited and the victim, in fear, called
911. Upset that the victim was calling 911, Kuder grabbed the phone and
threw it against the wall. Kuder then strangled and hit the victim,
fracturing her nose and causing numerous bruises and abrasions. Kuder
only stopped when a police officer arrived and ordered him away from
the victim. Kuder and the officer then struggled, and Kuder was tased
several times before he was handcuffed and taken into custody.

¶4            Kuder was charged with two counts of aggravated assault
against the victim, class 4 felonies and domestic violence offenses; one
count of aggravated assault against the police officer, a class 4 felony;
three other counts of aggravated assault against a police officer, each class
5 felonies; resisting arrest, a class 6 felony and three misdemeanor
domestic violence counts involving the victim. Pretrial, Kuder filed a
“Motion to Chan[g]e of Judge And Location of Trial,” stating in substance
the following:




1On appeal, this court views the evidence in the light most favorable to
sustaining the convictions and resolves all reasonable inferences against
Kuder. State v. Karr, 221 Ariz. 319, 320, ¶ 2, 212 P.3d 11, 12 (App. 2008).



                                     2
                           STATE v. KUDER
                          Decision of the Court

             I.     FACTS

             The Defendant in this matter allegedly
             assaulted a long time employee of the Yavapai
             County Clerk of the Court’s Office. On
             information and belief Counsel believes that
             she (the victim) is acquainted with all of the
             sitting Judges in Yavapai County pursuant to
             her employment and has in fact been an officer
             serving in each of their Courts, including
             Division 7 where the case is currently assigned.
             Further employees of the Clerk’s Office will be
             assigned the ministerial duties involved with
             the matter and because of their close
             connection with the victim will be hard
             pressed not to discuss and maintain a
             professional relationship to the case and its
             progress in Court.

             II.    Authority

             This motion is made pursuant to Rule 10.2 and
             Rule 10.3 of the Arizona Rules of Criminal
             procedure which allow for a change of Judge
             and Change of Place of Trial when it is
             appropriate to maintain fairness to the
             defendant. While Counsel for the Defense is
             unaware of any actual conflict, the potential
             and appearance of impropriety certainly exist
             given the closeness of the victim’s professional
             life with the judicial system in Yavapai County.

The motion did not request oral argument or an evidentiary hearing.

¶5            To the extent the motion sought relief under Arizona Rule of
Criminal Procedure (Rule) 10.2 (preemptory change of judge), the
superior court noted it was timely but that it did not “comply with the
specific requirements of Rule 10.2(b).” Accordingly, to the extent the
motion sought relief under Rule 10.2, the court denied such relief but
granted Kuder “leave to file a corrected Notice of Change of Judge within
10 days of this Ruling.” Kuder, however, never filed a corrected notice of
change of judge. To the extent the motion sought relief under Rule 10.3
(allowing a change of the place of trial to another county), the superior


                                    3
                             STATE v. KUDER
                            Decision of the Court

court directed the State to file a response. Quoting the standard in Rule
10.3(b), the State’s response argued Kuder had not shown that “a fair and
impartial trial cannot be had for any reason other than the interest or
prejudice of the trial judge.” After considering the parties’ briefs, the
superior court denied Kuder’s motion to the extent it sought relief under
Rule 10.3.

¶6            At trial, after the close of the State’s case, the superior court
granted Kuder’s motion for judgment of acquittal on one of the class 5
felony aggravated assault of a police officer charges. The nine remaining
counts were submitted to the jury, which returned guilty verdicts as
charged on six counts: two counts of aggravated assault against the
victim, class 4 felonies and domestic violence offenses; one count of
resisting arrest, a class 6 felony and the misdemeanor counts. The jury
found Kuder not guilty of the class 4 and class 5 felony aggravated assault
against a police officer charges and found him guilty of the lesser included
offense of misdemeanor assault for the remaining class 5 felony
aggravated assault against a police officer charge.

¶7             Kuder properly waived his right to a jury trial on
aggravating circumstances and the superior court found as an aggravating
factor that the offenses caused emotional harm to the victim, and found no
mitigating factors. The superior court also properly found Kuder had two
historical non-dangerous felony convictions. The superior court then
sentenced Kuder to concurrent slightly aggravated prison terms for the
felony convictions (the longest of which was 10.25 years in prison for the
class 4 felony, slightly aggravated from a 10 year presumptive term) and
to time served for the misdemeanor convictions. From Kuder’s timely
appeal, this court has jurisdiction pursuant to Article 6, Section 9 of the
Arizona Constitution and Arizona Revised Statute (A.R.S.) sections 12-
120.21(A)(1), 13-4031, and -4033(A)(1) (2014). 2

                               DISCUSSION

¶8            The sole argument Kuder presses on appeal is that the
superior court erred in denying his motion to change judge and location
of trial. This court reviews the superior court’s decision denying the
motion to change venue for an abuse of discretion, State v. Blakley, 204


2 Absent material revisions after the relevant dates, statutes cited refer to
the current version unless otherwise indicated.




                                      4
                            STATE v. KUDER
                           Decision of the Court

Ariz. 429, 434, ¶ 13, 65 P.3d 77, 82 (2003), and “review[s] de novo matters
involving interpretation of court rules,” State v. Fitzgerald, 232 Ariz. 208,
210, ¶ 10, 303 P.3d 519, 521 (2013). Kuder argues the motion should have
been granted under: (1) Rule 10.2; (2) Rule 10.3 (which also implicates
Rule 10.2) and (3) Canon 2 and Rule 2.11(A)(2) of the Arizona Code of
Judicial Conduct. 3 The court considers Kuder’s arguments in turn.

I.     The Superior Court Properly Denied Kuder’s Attempted Notice
       Of Change Of Judge Under Rule 10.2.

¶9            Rule 10.2 grants “each side” in a criminal case a peremptory
notice to change an assigned superior court judge without cause. Ariz. R.
Crim. P. 10.2(a). Although Kuder’s filing was timely under Rule 10.2, it
did not take the form of, or contain the avowal required for, a notice of
change of judge pursuant to Rule 10.2(b). See Fiveash v. Superior Court, 156
Ariz. 422, 425, 752 P.2d 511, 514 (App. 1988) (“[A]ny provision relating to
disqualification of judges must be given strict construction to safeguard
the judiciary from frivolous attacks.”). The superior court denied the
motion to the extent it relied on Rule 10.2 because it did “not comply with
the specific requirements of Rule 10.2(b).” The superior court granted
Kuder ten days to file a corrected notice of change of judge pursuant to
Rule 10.2. Kuder, however, never filed an amended Rule 10.2 notice and
the time to do so has long since passed. Ariz. R. Crim. P. 10.4(a) (“A party
loses the right . . . to a change of judge when the party participates before
that judge in any contested matter in the case.”). Having failed to file a
proper Rule 10.2 notice after being allowed additional time to do so by the
superior court, and having then participated in trial before the same
judge, Kuder cannot now rely on Rule 10.2 as a proper ground for the
relief requested. See State v. Webb, 19 Ariz. App. 73, 75, 504 P.2d 1296, 1298
(App. 1973) (no peremptory challenge allowed when judge, without
challenge, heard evidence and motions regarding trial); State v. Hughes, 13
Ariz. App. 221, 223, 475 P.2d 511, 513 (App. 1970) (after evidence was
taken on ultimate issues, it was too late to disqualify judge).




3 Although Kuder cites to a Canon of the Arizona Code of Judicial
Conduct before changes effective September 1, 2009, the court applies the
comparable provisions of the Code in place during the time relevant here.



                                      5
                              STATE v. KUDER
                             Decision of the Court

II.    The Superior Court Properly Denied Kuder’s Motion To Change
       Venue Under Rule 10.3.

¶10           A party in a criminal case “shall be entitled to a change of
the place of trial to another county, if a fair and impartial trial cannot be
had for any reason other than the interest or prejudice of the trial judge.” Ariz.
R. Crim. P. 10.3(a) (emphasis added). As noted above, Kuder’s motion
relied on the claimed prejudice of the superior court, which is not a
permissible ground for a motion to change venue under the plain
language of Rule 10.3. Accordingly, the superior court did not err in
denying Kuder’s motion for a change in venue under Rule 10.3.

III.   The Superior Court Properly Denied Kuder’s Motion To Change
       Judge Under Rule 10.1.

¶11           In State v. Smith, the Arizona Supreme Court held that a
motion which “was a ‘hybrid’ between a Rule 10.3 motion for change of
venue and a Rule 10.1 motion for change of judge” should be considered
as a motion for change of judge for cause pursuant to Rule 10.1. 203 Ariz.
75, 79, ¶¶ 10-11, 50 P.3d 825, 828 (2002). A Rule 10.1 motion, however,
requires a party to “file a motion verified by affidavit of the moving party
and alleg[e] specifically the grounds for the change.” Ariz. R. Crim. P.
10.1. Kuder never filed such an affidavit and, in fact, did not cite Rule 10.1
in the motion. Accordingly, no relief is appropriate under Rule 10.1. See
State v. Carver, 160 Ariz. 167, 172, 771 P.2d 1382, 1387 (1989) (noting
informal motion for change of judge for cause under Rule 10.1, which did
not comply with affidavit requirement, was insufficient).

IV.    Kuder Has Shown No Violation Of The Arizona Code Of Judicial
       Conduct.

¶12           Under the Arizona Code of Judicial Conduct 2.11(A)(1):

              A judge shall disqualify himself or herself in
              any proceeding in which the judge’s
              impartiality might reasonably be questioned,
              including but not limited to . . . [a circumstance
              where] (1) [t]he judge has a personal bias or
              prejudice concerning a party or a party’s
              lawyer, or personal knowledge of facts that are
              in dispute in the proceeding.

Ariz. R. Sup. Ct. 81, Code of Jud. Conduct, Rule 2.11(A)(1). “‘Impartial,’
‘impartiality,’ and ‘impartially’ mean absence of bias or prejudice in favor


                                        6
                             STATE v. KUDER
                            Decision of the Court

of, or against, particular parties or classes of parties, as well as
maintenance of an open mind in considering issues that may come before
a judge.” Ariz. R. Sup. Ct. 81 (Terminology). Judicial bias is “a hostile
feeling or spirit of ill-will” or “undue friendship or favoritism[ ] towards
one of the litigants.” In re Guardianship of Styer, 24 Ariz. App. 148, 151, 536
P.2d 717, 720 (1975). The “obligation not to hear or decide matters in
which disqualification is required applies regardless of whether a motion
to disqualify is filed.” Ariz. R. Sup. Ct. 81, Code of Jud. Conduct, Rule 2.11
cmt. 2. Impartiality is presumed, however, and the party claiming
otherwise “must prove bias or prejudice by a preponderance of the
evidence.” Carver, 160 Ariz. at 172, 771 P.2d at 1387 (citations omitted).
“Bare allegations of bias and prejudice, unsupported by factual evidence,
are insufficient to overcome the presumption of impartiality and do not
require recusal.” Id. at 173, 771 P.2d at 1388.

¶13            As applied, Kuder does not offer any proof, and does not
cite to anything in the record, to suggest that he was not provided a fair
trial in front of an impartial judge. In his motion, Kuder alleges that the
victim was “acquainted with all of the sitting judges in Yavapai County,”
but also states that “Counsel for Defense is unaware of any actual
conflict.” Moreover, the fact that Kuder received a slightly aggravated
sentence does not, without more, indicate impartiality. See State v. Ellison,
213 Ariz. 116, 129, ¶ 40, 140 P.3d 899, 912 (2006) (judicial rulings alone do
not support a finding of bias or partiality without a showing of an
extrajudicial source of bias). Because Kuder did not meet his burden in
showing bias or prejudice and no evidence of impropriety is present in the
record on appeal, the superior court judge did not err in failing to recuse.
See Smith, 203 Ariz. at 79-80, ¶¶ 12-19, 50 P.3d at 829-830 (no ethical
violation when judge did not recuse when victim’s son and daughter-in-
law were longtime employees of court where trial occurred, and judge
had some prior professional contact with victim’s son and daughter-in-
law).

                              CONCLUSION

¶14           Finding no error by the superior court in denying Kuder’s
motion to change judge and location of trial, Kuder’s convictions and
sentences are affirmed.




                                     :mjt




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