                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Petitioner,

                                         v.

THE HONORABLE ROBERT E. MILES, Judge of the SUPERIOR COURT
 OF THE STATE OF ARIZONA, in and for the County of MARICOPA,
                      Respondent Judge,

                  COREY D. WRIGHT, Real Party in Interest.

                              No. 1 CA-SA 15-0010
                                FILED 2-26-2015


 Petition for Special Action from the Superior Court in Maricopa County
                          No. CR2013-421289-001
                   The Honorable Robert E. Miles, Judge

            JURISDICTION ACCEPTED; RELIEF GRANTED


                                    COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Lisa Marie Martin
Counsel for Petitioner

Harla Davison Law Firm, Phoenix
By Harla Davison
Counsel for Real Party in Interest
                     STATE v. HON. MILES/WRIGHT
                          Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined.


C A T T A N I, Judge:

¶1            The State of Arizona seeks special action relief from the
superior court’s order reinstating a lapsed plea offer to Real Party in Interest
Corey Wright as a sanction for a discovery violation. Because the State has
no adequate right to appeal this type of ruling, we accept jurisdiction. See
Ariz. Rev. Stat. (“A.R.S.”) § 13-4032; Ariz. R.P. Spec. Act. 1(a).1 For reasons
that follow, we grant relief and vacate the superior court’s order.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On June 24, 2014, Wright was charged with one count of
possession or use of marijuana, one count of possession of drug
paraphernalia, and one count of misconduct involving weapons. Wright
rejected plea offers from the State on June 24, 2014, September 11, 2014, and
October 29, 2014.

¶3            On July 30, 2014, the State filed a disclosure statement, listing
three witnesses by name, as well as an unnamed fingerprint examiner and
court clerks. On November 13, 2014, twelve days before trial was scheduled
to begin, the State filed a Supplemental Notice of Disclosure, listing seven
additional witnesses.

¶4             Wright filed a motion for sanctions and motion to preclude
under Rules 15.1, 15.6 and 15.7 of the Arizona Rules of Criminal Procedure,
alleging that counsel’s investigation of the case had been impaired. Wright
also alleged that the late disclosure of an internal file relating to one of the
witnesses violated the State’s disclosure requirements under Brady v.
Maryland, 373 U.S. 83 (1963). Wright requested sanctions “including, but
not limited to, dismissal of this case with prejudice and preclusion of



1     Absent material revisions after the relevant date, we cite a statute’s
current version.



                                       2
                     STATE v. HON. MILES/WRIGHT
                          Decision of the Court

witnesses and evidence.” Two days later, the court denied Wright’s motion
to suppress premised on an alleged Miranda2 violation.

¶5            After full briefing and oral argument, the superior court
denied Wright’s Brady claim and found that there was no disclosure
violation regarding five of the seven witnesses. As to the remaining two
witnesses, the court ruled as follows in a minute entry filed on December
15, 2014:

               Rule 15.6 requires that disclosures made after the
       initial disclosure must be done “seasonably,” presumably
       meaning within a reasonable time of a party’s knowledge of
       information that would require disclosure. Although the
       names of witnesses [] Bernal and [] Madrid were disclosed
       within the “final” seven-day deadline of the rule, that
       disclosure was not made seasonably. The State acknowledges
       that it intended to disclose [] Bernal, but failed to do so
       through inadvertence. And, unlike the [other witnesses]
       discussed above, [] Madrid, as the Defendant’s probation
       officer, was a name that was available to the State well before
       the final deadline.

              With respect to the appropriate sanction for the State’s
       failure to “seasonably” disclose the names of Officer Bernal
       and Ms. Madrid, as required by the Rule, the Court finds that
       dismissal is not appropriate. The Court further finds that
       preclusion of witnesses Bernal and Madrid is appropriate.

               As a further sanction for the State’s late disclosure, the
       State shall reinstate the last plea offer made to the Defendant
       . . . . The plea offer shall remain open until 3:30 p.m. on
       December 15, 2014, or as may be extended by the trial judge
       to accommodate the trial schedule.

¶6           On the day the court filed its ruling, the State filed a Motion
to Reconsider, or in the Alternative, Request to Stay. The State pointed out
that Madrid and Bernal were minor witnesses that played no part in
Wright’s prior rejections of the State’s plea offers. The State further argued
that reinstatement of a plea offer is only appropriate in narrow
circumstances not present here. At oral argument on the motion, the State



2      Miranda v. Arizona, 384 U.S. 436 (1966).


                                       3
                     STATE v. HON. MILES/WRIGHT
                          Decision of the Court

also argued that an order to reinstate the plea offer would violate separation
of powers principles.

¶7            The court denied the motion to reconsider, noting that simply
precluding the two witnesses would not have been a significant sanction
because the prosecutor had indicated that the two witnesses in question
were not critical to the State’s case. The court denied the State’s request for
a stay and, over the State’s objection, allowed Wright to enter a guilty plea,
while deferring acceptance of the plea until sentencing.

¶8            The State thereafter filed the instant special action, and we
have accepted jurisdiction to address whether the superior court’s order
directing the State to reinstate a plea offer is appropriate under the Arizona
Rules of Criminal Procedure as a sanction for a disclosure violation.

                               DISCUSSION

¶9            We review the superior court’s assessment of the adequacy of
disclosure for an abuse of discretion. State v. Roque, 213 Ariz. 193, 205, ¶ 21,
141 P.3d 368, 380 (2006). We apply the same standard in reviewing the trial
judge’s imposition of a sanction for a discovery violation. Id.

¶10           Rule 15.7 provides as follows:

       a. Failure to Make Disclosure. If a party fails to make a
       disclosure required by Rule 15 any other party may move to
       compel disclosure and for appropriate sanctions. The court
       shall order disclosure and shall impose any sanction it finds
       appropriate, unless the court finds that the failure to comply
       was harmless or that the information could not have been
       disclosed earlier even with due diligence and the information
       was disclosed immediately upon its discovery. All orders
       imposing sanctions shall take into account the significance of
       the information not timely disclosed, the impact of the
       sanction on the party and the victim and the stage of the
       proceedings at which the disclosure is ultimately made.
       Available sanctions include, but are not limited to:

       (1) Precluding or limiting the calling of a witness, use of
       evidence or argument in support of or in opposition to a
       charge or defense, or

       (2) Dismissing the case with or without prejudice, or



                                       4
                     STATE v. HON. MILES/WRIGHT
                          Decision of the Court

       (3) Granting a continuance or declaring a mistrial when
       necessary in the interests of justice, or

       (4) Holding a witness, party, person acting under the
       direction or control of a party, or counsel in contempt, or

       (5) Imposing costs of continuing the proceedings, or

       (6) Any other appropriate sanction.

¶11            The Arizona Supreme Court has noted that in selecting the
appropriate sanction for a disclosure violation, a trial court “should seek to
apply sanctions that affect the evidence at trial and the merits of the case as
little as possible since the Rules of Criminal Procedure are designed to
implement, not to impede, the fair and speedy determination of cases.”
Roque, 213 Ariz. at 210, ¶ 50, 141 P.3d at 385. The sanction of precluding a
witness should be invoked only in cases where other less stringent
sanctions are not applicable to effect the ends of justice. Id. The court
should also consider “how vital the precluded witness is to the proponent’s
case, whether the opposing party will be surprised and prejudiced by the
witness’ testimony, whether the discovery violation was motivated by bad
faith or willfulness, and any other relevant circumstances.” Id.

¶12           Here, in imposing an additional sanction beyond precluding
witnesses Madrid and Bernal, the superior court failed to properly consider
the significance of the witnesses and how Wright was prejudiced by the
untimely disclosure. Because the prosecutor had indicated that he might
not have called the witnesses in any event, the superior court concluded
that precluding the witnesses was not an adequate sanction. But that
conclusion is contrary to Rule 15.7 and to the Arizona Supreme Court’s
directive that the court consider “how vital the precluded witness is to the
proponent’s case.” Id. If the court accepted the prosecutor’s assertion that
he might not have called the witnesses in any event, the logical conclusion
was that the witnesses were not vital to the prosecutor’s case, which
militates against imposing an additional sanction beyond preclusion of the
witness. Contrary to the superior court’s approach, the severity of the
sanction imposed should not be inversely proportional to the severity of the
disclosure violation.

¶13            Furthermore, Wright made no showing of prejudice in light
of the court’s ruling precluding the witnesses from testifying. Accordingly,
the superior court erred by ordering a sanction beyond preclusion of
witnesses Madrid and Bernal.



                                      5
                     STATE v. HON. MILES/WRIGHT
                          Decision of the Court

¶14           Wright argues that under State v. Donald, 198 Ariz. 406, 417, ¶
39, 10 P.3d 1193, 1204 (App. 2000), “[i]t is well established [] that the courts
may intervene to reinstate a plea offer that the State has withdrawn for
vindictive reasons.” Wright further asserts that under Donald, a “court’s
essential function is to provide a remedy in the context of an individual
case, and a restoration of all parties to their original position is a remedy
well established in other contexts.” Id. Wright thus posits that “[u]nder the
circumstances of this case, the trial court did not undertake to usurp the
State’s plea bargaining authority, rather the sanction was remedial and put
the parties back into their original position prior to the State’s late
disclosures.”

¶15            We disagree that Donald supports the trial court’s ruling.
Donald involved an assertion that, but for defense counsel’s ineffective
assistance, the defendant would have accepted a plea offer. Id. at 410. Here,
in contrast, the superior court implicitly acknowledged that the untimely-
disclosed witnesses apparently were not essential to the State’s case, and
the court made no finding that, had Wright been aware of witnesses Madrid
and Bernal, he would have accepted the State’s plea offer. In fact, such a
finding would have been inconsistent with the court’s conclusion that the
untimely-disclosed witnesses were not vital to the State’s case.

¶16           Finally, we note that the court’s ruling is inconsistent with
Rule 15.8 of the Arizona Rules of Criminal Procedure, which specifically
contemplates that the prosecutor, rather than the court, must decide
whether to reinstate a lapsed plea offer following a disclosure violation:

       . . . If the court determines that the prosecutor’s failure to
       provide such disclosure [at least 30 days before a plea offer
       expires] materially impacted the defendant’s decision and the
       prosecutor declines to reinstate the lapsed or withdrawn plea offer,
       then the presumptive minimum sanction shall be preclusion
       from admission at trial of any evidence not disclosed as
       required by Rule 15.8(a). . . .

Ariz. R. Crim. P. 15.8(b) (emphasis added); see also Rivera-Longoria v. Slayton,
228 Ariz. 156, 158, ¶ 9, 264 P.3d 866, 868 (2011). Under this rule, the court
is thus tasked with determining the materiality of the untimely-disclosed
information and its effect on whether a defendant would have accepted a
plea had the information been known prior to the plea offer lapsing. If the
court makes such a determination, the prosecutor is then tasked with
deciding whether to reinstate a plea offer, with the court’s further
involvement limited to determining whether to impose sanctions that may


                                        6
                    STATE v. HON. MILES/WRIGHT
                         Decision of the Court

include preclusion of the untimely-disclosed evidence, but presumably do
not include usurping the role left to the prosecutor.

¶17          Because the superior court’s order misapplies Rule 15.7 and is
inconsistent with Rule 15.8, we vacate the order and remand for further
proceedings consistent with this decision.




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