                                                                     FILED BY CLERK
                               IN THE COURT OF APPEALS                 OCT -5 2010
                                   STATE OF ARIZONA
                                     DIVISION TWO                       COURT OF APPEALS
                                                                          DIVISION TWO



CAROL ANN POTTER,                                   )
                                                    )
                                      Petitioner,   )
                                                    )   2 CA-SA 2010-0047
                     v.                             )   2 CA-SA 2010-0048
                                                    )   (Consolidated)
HON. JANNA L. VANDERPOOL, Judge of                  )   DEPARTMENT B
the Superior Court of the State of Arizona, in      )
and for the County of Pinal,                        )   OPINION
                                                    )
                                   Respondent,      )
                                                    )
                     and                            )
                                                    )
THE STATE OF ARIZONA, by and through                )
the Pinal County Attorney,                          )
                                                    )
                          Real Party in Interest.   )
                                                    )
                                                    )
DEBRA JOY MERRYMAN,                                 )
                                                    )
                                      Petitioner,   )
                                                    )
                     v.                             )
                                                    )
HON. JANNA L. VANDERPOOL, Judge of                  )
the Superior Court of the State of Arizona, in      )
and for the County of Pinal,                        )
                                                    )
                                   Respondent,      )
                                                    )
                     and                            )
                                                    )
THE STATE OF ARIZONA, by and through                )
the Pinal County Attorney,                          )
                                                    )
                          Real Party in Interest.   )
                                                    )
                          SPECIAL ACTION PROCEEDING

              Pinal County Cause Nos. CR201000629 and CR201000648

                    JURISDICTION ACCEPTED; RELIEF GRANTED


Mary Wisdom, Pinal County Public Defender
 By Lisa M. Surhio                                                              Florence
                                                                Attorneys for Petitioners

James P. Walsh, Pinal County Attorney
 By Michael C. Larsen                                                            Florence
                                                      Attorneys for Real Party in Interest


K E L L Y, Judge.


¶1           In these consolidated special actions, we are asked to determine whether a

superior court judge may refuse to appoint at least two mental health experts to assess a

criminal defendant‟s competency to stand trial, after a court of limited jurisdiction has

found, pursuant to Rule 11.2(c), Ariz. R. Crim. P., there are reasonable grounds to

conduct a full competency examination. Based on the clear and unambiguous language

of Rule 11.2(d), we hold that the superior court does not have the authority to review a

lower court‟s decision and substitute its own reasonable grounds determination, but

instead must order a full examination of the defendant and conduct additional

proceedings consistent with Rule 11 to determine the defendant‟s competency to stand

trial.




                                               2
                                 Facts and Procedural History

¶2            These special actions have arisen from separate criminal prosecutions

brought against the two petitioners in Apache Junction Justice Court. Petitioner Carol

Ann Potter was cited for driving under the influence of an intoxicant (DUI), driving with

an alcohol concentration (AC) of .08 or more, and driving with an AC of .15 or more

(extreme DUI). Potter‟s appointed counsel filed a motion pursuant to Rule 11, requesting

a preliminary examination or “prescreening” to assess Potter‟s competency to stand trial,

stating counsel had concerns based on Potter‟s “long mental health history.” Noting that

a motion had been “filed for a Preliminary Examination pursuant to Rule 11.2(c), [Ariz.

R. Crim. P.],” Justice of the Peace Dennis Lusk granted the motion and appointed Dr.

Leo Munoz to conduct a prescreening examination of Potter “to determine whether

reasonable grounds exist to order further examination of the Defendant.” Dr. Munoz

evaluated Potter and, in the report he sent to Judge Lusk, opined Potter was not

competent to stand trial and recommended a “[f]ull Rule 11” evaluation. Thereafter,

Potter filed a motion for a “full Rule 11” evaluation, which Judge Lusk granted,

implicitly finding “reasonable grounds exist[ed] for further competency hearings.” Ariz.

R. Crim. P. 11.2(d).

¶3            Consistent with Rule 11.2(d), the case was transferred to Pinal County

Superior Court. The respondent judge reviewed Dr. Munoz‟s report and stated in her

minute entry ruling that “the actual information as to the defendant‟s understanding of the

proceedings and her ability to adequately assist her attorney in this matter” did not

support his opinion. The respondent judge added she could “find no reasonable cause to

                                                3
order further evaluations,” found Potter “competent to stand trial,” and ordered the matter

“returned to the lower court for resolution, including the immediate setting of a

trial/change of plea date.” Potter filed a motion to reconsider the ruling and requested a

full competency evaluation, which she asserted was mandatory under Rule 11.2(d). The

respondent denied the motion and again ordered the matter returned to the justice court

for final disposition.

¶4            Petitioner Debra Joy Merryman‟s case followed a path essentially parallel

to Potter‟s. Merryman was cited for DUI and driving with a drug or its metabolite in her

body. Her appointed counsel, the same attorney who represented Potter, requested a

prescreening evaluation pursuant to Rule 11 based on Merryman‟s “mental health

history” and counsel‟s “concern as to whether she is competent to stand trial.” As he did

in Potter‟s case, Judge Lusk noted that a request had been made pursuant to Rule 11.2(c)

for a preliminary competency examination and granted the motion, appointing Dr. Munoz

to evaluate Merryman to determine “whether reasonable grounds exist to order further

examination of the Defendant.” Dr. Munoz evaluated Merryman, found she was not

competent to stand trial, and recommended a full Rule 11 evaluation. Thereafter, Judge

Lusk granted the state‟s motion for a “full Rule 11 evaluation,” implicitly finding

“reasonable grounds exist[ed] for further competency hearings” pursuant to Rule 11.2(d)

and transferring the case to Pinal County Superior Court.        As in Potter‟s case, the

respondent judge reviewed Munoz‟s report, disagreed with his conclusion, and found

Merryman competent to stand trial. The respondent concluded no further evaluations

were “necessary” and ordered the case returned to justice court “for further proceedings,

                                                4
including the setting of a firm trial date.” Merryman filed a motion to reconsider the

ruling and requested a “full Rule 11 evaluation.” After a hearing, the respondent denied

the motion.

¶5            In seeking special action review, both Potter and Merryman contend that

the respondent judge lacked the authority to review Judge Lusk‟s finding of reasonable

grounds for further competency examinations and that Rule 11 required the respondent to

appoint at least two mental health experts and to conduct further proceedings to

determine petitioners‟ competency to stand trial.      The state has filed a response to

Merryman‟s petition in which it has taken no position on these issues.1 Because the

issues and arguments in both cases are the same, we have consolidated these special

actions. And, for the reasons stated below, we accept jurisdiction and grant relief.

                                  Special Action Jurisdiction

¶6            Whether to accept special action jurisdiction is for this court to decide in

the exercise of our discretion. See State v. Campoy, 220 Ariz. 539, ¶ 2, 207 P.3d 792,

795 (App. 2009). We do so here for a variety of reasons. First, “the issues raised . . .

involve questions of law relating to the interpretation and application of procedural rules

and are „of statewide importance to the judiciary and the litigants who come before it on

criminal matters.‟” Id., quoting Bergeron ex rel. Perez v. O’Neil, 205 Ariz. 640, ¶ 12, 74

P.3d 952, 958 (App. 2003); see also ChartOne, Inc. v. Bernini, 207 Ariz. 162, ¶¶ 8, 14,

83 P.3d 1103, 1106-07, 1108 (App. 2004) (noting questions of law, such as interpretation


       1
       It filed a similar response to Potter‟s petition, but this court struck the response
because the state had failed to comply with a procedural rule.
                                                5
of procedural rule, particularly appropriate for de novo review by special action).

Second, when, as here, a trial judge commits an error of law, the judge abuses her

discretion, see Campoy, 220 Ariz. 539, ¶ 37, 207 P.3d at 804, one of the bases for

granting special action relief, see Ariz. R. P. Spec. Actions 3(c).

¶7            Similarly, we may grant relief when a court has acted in excess of its legal

authority or jurisdiction, as the respondent judge has here. See Ariz. R. P. Spec. Actions

3(b). And, from the respondent‟s having entered the same order in two cases, we can

infer the error is likely to recur. Cf. Francis v. Sanders, 222 Ariz. 423, ¶ 9, 215 P.3d 397,

400 (App. 2009) (listing likely recurrence of issue among reasons for accepting special

action jurisdiction).   Additionally, the challenged orders are interlocutory, and the

petitioners have no “equally plain, speedy, [or] adequate remedy by appeal.” See Ariz. R.

P. Spec. Actions 1(a); see also Mendez v. Robertson, 202 Ariz. 128, ¶ 1, 42 P.3d 14, 15

(App. 2002) (stating defendant had no adequate remedy on appeal from interlocutory

order).

                                            Discussion

¶8            “[W]e interpret court rules according to the principles of statutory

construction.” Bolding v. Hantman, 214 Ariz. 96, ¶ 16, 148 P.3d 1169, 1173 (App.

2006). Consequently, we are required to give effect to our supreme court‟s intent in

promulgating a rule, keeping in mind that the best reflection of that intent is the plain

language of the rule. Lopez v. Kearney, 222 Ariz. 133, ¶ 12, 213 P.3d 282, 285 (App.

2009). “If the language is clear and unambiguous, we give effect to that language and do



                                                 6
not employ other methods of . . . construction.” Fragoso v. Fell, 210 Ariz. 427, ¶ 7, 111

P.3d 1027, 1030 (App. 2005).

¶9            Rule 11.2(a) provides that a party may, anytime after a defendant has been

charged with an offense, request an evaluation to determine whether the defendant is

competent to stand trial. In response to such a request, Rule 11.2(c) permits the court to

order a “preliminary examination” of the defendant, often referred to as a prescreening

evaluation, “pursuant to A.R.S. § 13-4503(C) to assist the court in determining if

reasonable grounds exist to order further examination of the defendant.” Subsection (d)

of Rule 11.2, entitled “Jurisdiction,” states as follows:

                      Should any court determine that reasonable grounds
              exist for further competency hearings, the matter shall
              immediately transfer to the superior court for appointment of
              mental health experts; the superior court shall have exclusive
              jurisdiction over all competency hearings. If any court
              determines that competence is not an issue, the matter shall be
              immediately set for trial.2

Rule 11.3(a) states, “If the court determines [pursuant to Rule 11.2] that reasonable

grounds for an examination exist, it shall appoint at least two mental health experts to

examine the defendant and to testify regarding the defendant‟s mental condition.” The

remaining provisions of Rule 11.3 define the term “mental health expert,” prescribe the


       2
        Section 13-4503, A.R.S., which is entitled “Request for competency
examination,” essentially mirrors Rule 11.2. Thus, like Rule 11.2(c), § 13-4503(C)
permits the court to order a mental health expert to examine the defendant to assist the
court in deciding whether reasonable grounds exist for a more thorough competency
evaluation. And like Rule 11.2(d), § 13-4503(D) provides, “Once any court determines
that reasonable grounds exist for further competency proceedings, the superior court shall
have exclusive jurisdiction over all competency hearings.”

                                                  7
procedure for nominating experts, and direct how other aspects of the competency

proceedings shall be conducted.3 Other subsections of Rule 11 govern disclosure,

hearings and orders. See Ariz. R. Crim. P. 11.4, 11.5, 11.6.

¶10          Because Rule 11.2 is clear and unambiguous we need not employ principles

of construction to interpret the rule and determine its meaning. See Levy v. Alfaro, 215

Ariz. 443, ¶ 6, 160 P.3d 1201, 1202 (App. 2007). The rule plainly permits any party in

any court, which necessarily includes a court of limited jurisdiction, to file a motion

seeking a determination of the defendant‟s competency to stand trial. The rule gives “any

court” the authority to address the motion and decide whether reasonable grounds exist

for further investigation into the defendant‟s competency.     Subsection (c) of the rule

permits the court to order a preliminary examination to assist it in deciding whether

reasonable grounds exist.    But, distinguishing “any court” from the superior court,

subsection (d) vests the superior court with exclusive jurisdiction to conduct proceedings

beyond the preliminary reasonable grounds determination and to make the ultimate

determination of the defendant‟s competency to stand trial.4      Thus, the rule plainly

provides that, if the court making the reasonable grounds determination is not the




      3
        Section 13-4505, A.R.S., is similar to Rule 11.3. Subsection (A) of the statute,
like the rule, requires the court to appoint two or more mental health experts to examine
the defendant once a court has determined reasonable grounds exist to conduct a
competency examination.
      4
        Section 13-4503(D) mirrors the rule; it, too, establishes the superior court‟s
exclusive jurisdiction to conduct further Rule 11 proceedings and decide if the defendant
is competent.
                                                8
superior court, the case must be transferred immediately to the superior court for the

appointment of mental health experts.

¶11           Subsection (d) was added to Rule 11.2 in November 1996. See 187 Ariz.

XLIX, L (1996) (supreme court‟s order of November 29, 1996, effective January 1,

1997). Well before the rule was amended, based on other rules and statutes limiting a

city court‟s jurisdiction, we concluded that a court of limited jurisdiction had the

authority to decide whether reasonable grounds existed to conduct further competency

proceedings, but that only the superior court could conduct those further proceedings and

decide the ultimate issue of the defendant‟s sanity. Wissner v. State, 21 Ariz. App. 432,

434, 520 P.2d 526, 528 (1974). We stated that, once the lower court found reasonable

grounds to question a defendant‟s competency, the proceedings in the court of limited

jurisdiction had to be suspended while the superior court decided the issue. Id. at 434-35,

520 P.2d at 528-29. The comments to Rule 11.2 are consistent with our conclusion and

the process we recommended in Wissner.          See Ariz. R. Crim. P. 11.2, cmts.       The

amendment to the rule simply codified the ruling in Wissner and streamlined the process

by providing an automatic transfer of the case to the superior court once a court of limited

jurisdiction has made the reasonable grounds finding.

¶12           Thus, the rule makes clear that a limited jurisdiction court has the authority

to make the reasonable grounds finding under Rule 11.2 and that the superior court‟s role,

in such case, is to conduct further competency proceedings as required by other

provisions of Rule 11. Nothing in Rule 11.2 states or even suggests that, once the case is

transferred, the superior court may review the lower court‟s finding and decide anew

                                                9
whether reasonable grounds exist to examine a defendant‟s competency. Instead, the

plain language of Rule 11.2(d) requires that, once a lower court has made that finding, the

matter is immediately transferred to the superior court “for appointment of mental health

experts” and further proceedings that the limited jurisdiction court lacks authority to

conduct.

¶13           Had the supreme court intended to permit the superior court to review the

other court‟s reasonable grounds finding or conduct a de novo review, we presume it

would have so provided in the rule. Instead, by directing the matter be transferred to the

superior court “for appointment of mental health experts,” Ariz. R. Crim. P. 11.2(d), the

supreme court evinced its intent that, once a court has made the reasonable grounds

finding, the matter move on to the next phase of the Rule 11 process and the issue of a

defendant‟s competency be determined after full proceedings consistent with the rule.

See, e.g., Ariz. R. Crim. P. 11.3(a) (requiring court to appoint two or more mental health

experts upon finding reasonable grounds for examination exist).5 Were we to interpret

Rule 11.2 as permitting the superior court to review another court‟s reasonable grounds

       5
        We need not consider the purposes behind, or policy justifications for, the rule to
determine its meaning because we are not employing principles of statutory construction,
given the rule‟s plain language. See Devenir Assocs. v. City of Phoenix, 169 Ariz. 500,
503, 821 P.2d 161, 164 (1991) (if plain language of rule, like plain language of statute,
does not disclose supreme court or legislature‟s intent, court “may look at the rule or
statute‟s context, language, effects and consequences, spirit and purpose” to determine
meaning). We infer, nevertheless, that one reason the rule does not provide for superior
court review of any other court‟s reasonable ground determination is that the
determination can be based on factors other than the prescreen report, including the
court‟s observations of the defendant in the courtroom. See State v. Moody, 208 Ariz.
424, ¶ 48, 94 P.3d 1119, 1138 (2004) (“In determining whether reasonable grounds exist
[for full Rule 11 evaluations], a judge may rely, among other factors, on his own
observations of the defendant‟s demeanor and ability to answer questions.”).
                                               10
finding, we would be inserting words into the rule that do not exist. This we cannot and

will not do. See Cervantes v. Cates, 206 Ariz. 178, ¶ 24, 76 P.3d 449, 455 (App. 2003)

(recognizing appellate courts are “not free to rewrite” rules).

¶14           For the reasons stated, we conclude the respondent judge erred when she

reviewed Dr. Munoz‟s reports, essentially considered the motions for competency

evaluations de novo, and disregarded Judge Lusk‟s determinations pursuant to Rule

11.2(d) that reasonable grounds existed to conduct full competency proceedings in both

cases. Instead of replacing Judge Lusk‟s decisions with her own, the respondent was

required to appoint mental health experts, conduct further proceedings in accordance with

the relevant provisions of Rule 11, and then decide whether the petitioners are competent

to stand trial. Because the respondent exceeded her authority and erred as a matter of

law, thereby abusing her discretion, we grant special action relief and vacate the

challenged orders.    We direct the respondent judge to conduct further proceedings

consistent with the relevant provisions of Rule 11 and this opinion.


                                              /s/ Virginia C. Kelly
                                              VIRGINIA C. KELLY, Judge


CONCURRING:

/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge


/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge

                                                 11
