                                                                   FILED BY CLERK
                            IN THE COURT OF APPEALS                    SEP -7 2007
                                STATE OF ARIZONA                       COURT OF APPEALS
                                  DIVISION TWO                           DIVISION TWO


THE STATE OF ARIZONA,                         )
                                              )
                                Petitioner,   )
                                              )
                    v.                        )     2 CA-SA 2007-0067
                                              )     DEPARTMENT B
HON. HOWARD FELL, Judge Pro                   )
Tempore of the Superior Court of the          )     OPINION
State of Arizona, in and for the County of    )
Pima,                                         )
                                              )
                             Respondent,      )
                                              )
                   and                        )
                                              )
ANGELA EDWARDS FRYE,                          )
                                              )
                    Real Party in Interest.   )
                                              )


                          SPECIAL ACTION PROCEEDING

                         Pima County Cause No. CR-20050691

                  JURISDICTION ACCEPTED; RELIEF GRANTED


Barbara LaWall, Pima County Attorney
 By Jacob R. Lines                                                           Tucson
                                                             Attorneys for Petitioner

Nesci, St. Louis & West, P.L.L.C.
 By Joseph P. St. Louis                                                       Tucson
                                                  Attorneys for Real Party in Interest


E C K E R S T R O M, Presiding Judge.
¶1              In this special action proceeding, petitioner State of Arizona asks this court to

reverse the respondent judge’s order of June 4, 2007. That order remanded the charges in

the underlying criminal action for a new determination of probable cause pursuant to

Rule 12.9, Ariz. R. Crim. P., 16A A.R.S., after real party in interest Angela Edwards Frye

filed a motion to dismiss the indictment. The state does not have a remedy by appeal. See

A.R.S. § 13-4032; see also State ex rel. Thomas v. Schneider, 212 Ariz. 292, ¶ 2, 130 P.3d

991, 993 (App. 2006); Ariz. R. P. Spec. Actions 1(a), 17B A.R.S. (special action

jurisdiction appropriate when petitioner has no “equally plain, speedy, and adequate remedy

by appeal”). Because we conclude the respondent judge exceeded his authority and abused

his discretion, we grant relief. See Ariz. R. P. Spec. Actions 3(b) and (c) (questions raisable

in special action include “[w]hether the defendant has proceeded . . . in excess of

jurisdiction or legal authority; or . . . [w]hether a determination was . . . an abuse of

discretion”).

¶2              In February 2005, a Pima County Grand Jury charged Frye by indictment with

criminal damage, a class four felony, two counts of endangerment, class six felonies, and

three misdemeanor charges related to driving while under the influence of an intoxicant.

Frye was arraigned about a week later, and the next day the state filed the transcript of the

grand jury proceeding. In May 2007, over two years later, Frye filed a motion to dismiss the

charges, alleging prosecutorial misconduct during the grand jury proceeding. Specifically,

Frye argued the testimony of Pima County Sheriff’s Detective Mark Bustamante had been


                                                2
inaccurate, and she faulted the prosecutor for failing to disclose this. The state opposed the

motion, contending that it was untimely under Rule 12.9(b), that the state was not guilty of

misconduct, and that the presentation of the case to the grand jury had been fair.

¶3            Frye maintained in her motion that Bustamante had testified falsely on three

points: that witnesses had said Frye seemed to be “asleep or passed out behind the wheel

right before” crashing her car, that “[d]eputies and witnesses observed or noted an odor of

[alcohol] coming from Mrs. Frye,” and that alcohol had been found in Frye’s car. Frye

contended the reports of other deputies established the inaccuracy of Bustamante’s

testimony. And, Frye emphasized that these reports existed when the case was presented

to the grand jury. Insisting that her federal constitutional rights under the Fifth and

Fourteenth Amendments had been violated, Frye argued she was entitled to dismissal of the

charges or, alternatively, a remand of the case to the grand jury for a new determination of

probable cause.

¶4            Over the state’s objection, the respondent judge heard the motion and

proceeded with an evidentiary hearing. The respondent then granted the motion, in part,

after acknowledging it was untimely filed. Although the respondent judge rejected Frye’s

argument that the prosecutor had been guilty of misconduct, he found “the presentation was

not done as fairly as it could have been, and that the presentation may have prejudiced Ms.

Frye.” Adding that Bustamante had “not misled the grand jury in any way,” the respondent




                                              3
judge denied the motion to dismiss but remanded the case for a new presentation of the

charges to the grand jury.

¶5              Rule 12.9(b) provides that a motion challenging grand jury proceedings must

be filed “after an indictment is returned and no later than 25 days after the transcript and

minutes of the grand jury proceedings have been filed or 25 days after the arraignment is

held, whichever is later.” In Maule v. Superior Court, 142 Ariz. 512, 515, 690 P.2d 813,

816 (App. 1984), Division One of this court held that a trial court does have jurisdiction to

grant a request to extend the twenty-five-day time limit of Rule 12.9(b). Rejecting the

state’s contention that the time limit of the rule is both jurisdictional and mandatory, the

court stated:

                By this opinion we are holding that the rule is not
                “jurisdictional,” in the sense that a trial court has no authority
                to grant a request for extension; however, the rule is
                “mandatory,” in the sense that the trial court has no authority
                to grant an extension that is not made on a timely basis.
                Therefore, the trial court does have jurisdiction in its discretion
                to grant the motion for an extension of time limits in this case
                where the motion was made within the time limits of rule 12.9.

Maule, 142 Ariz. at 515, 690 P.2d at 816. Relying on State v. Smith, 123 Ariz. 243, 599

P.2d 199 (1979), the court stated in Maule, “It is clear from Arizona cases that a defendant

may not sit back during the 25-day period and do nothing without being subject to a claim

that he waived his objections to the grand jury proceedings by failing to comply with the

timeliness requirement.” Id. at 514, 690 P.2d at 815.



                                                4
¶6            Frye did not file her motion challenging the grand jury proceeding for more

than two years after the grand jury transcript and minutes were filed. Nor did she seek an

extension of the Rule 12.9(b) time limit within the twenty-five-day period. Consequently,

the respondent judge did not have the authority to address Frye’s motion and abused his

discretion by hearing it and granting relief. See Maule, 142 Ariz. at 515, 690 P.2d at 816;

see also Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, ¶ 10, 63 P.3d 282, 285 (2003) (a

judge abuses discretion by committing an “‘error of law’”), quoting Grant v. Ariz. Pub.

Serv. Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982).

¶7            Even assuming, without deciding, that a trial court under certain circumstances

has the authority and discretion to entertain a request to extend the time limit of Rule

12.9(b) made after the period has elapsed, we cannot say the respondent soundly exercised

any such discretion. The respondent judge’s comments at the hearing on the motion suggest

he was acting in the interest of judicial economy, choosing to err on the side of caution and

avoid a later claim of error. But Frye asserted no excuse for her failure to come forward for

well over two years. Thus, were we to find that, notwithstanding Division One’s decision

in Maule a trial court has the authority to extend the time limit of Rule 12.9(b) when the

request is made after the time has expired, there was no articulated basis for doing so here.

¶8            Frye suggests that she was not bound by the timeliness requirement set forth

in Rule 12.9(b) because she characterized her challenge as a “Motion to Dismiss Based on




                                             5
Prosecutorial Misconduct,” rather than as a motion pursuant to that rule. We reject her

argument for two reasons.

¶9            First, the plain language of Rule 12.9 provides that a motion under the rule is

the exclusive avenue by which grand jury proceedings may be challenged. See Ariz. R.

Crim. P. 12.9(a) (entitled “Challenge to grand jury proceedings,” rule provides grand jury

proceedings “may be challenged only by motion for a new finding of probable cause”).

And, the comment to Rule 12.9(b) clarifies that the rule’s timeliness requirement applies to

all species of grand jury challenges: “A motion attacking the grand jury proceedings . . .

must be brought within 25 days of the filing of the transcript.” No matter how Frye

characterizes her motion and regardless of what relief she requested, she essentially

challenged the propriety of the state’s actions in connection with the grand jury

proceeding—and she did so primarily based on the fairness of the testimony presented.

¶10           Second, the respondent judge’s decision to remand the case for a new finding

of probable cause, the decision challenged in this petition, was not based on Frye’s arguably

discrete claim of prosecutorial misconduct. Indeed, the respondent judge rejected Frye’s

claim of prosecutorial misconduct, specifically stating that he was reviewing Frye’s

remaining arguments pursuant to Rule 12.9. Moreover, after finding that “the [grand jury]

presentation was not done as fairly as it could have been,” the remedy the respondent judge

imposed was precisely the kind of remedy typically imposed for a flawed grand jury




                                             6
proceeding. Clearly, the respondent judge granted Frye relief pursuant to Rule 12.9 despite

the untimeliness of Frye’s challenge.

¶11           Finally, Frye contends that prosecutorial misconduct committed during grand

jury proceedings will not always come to light until after the Rule 12.9 deadline has passed.

Under such circumstances, Frye suggests, rigid enforcement of that deadline would leave

defendants without a remedy for even egregious prosecutorial misbehavior during grand jury

proceedings. But if a defendant suspects that later discovery and disclosure could

conceivably expose a defect in the grand jury proceedings not apparent within the

Rule 12.9(b) filing deadline, the defendant can file a timely motion to extend it—thereby

preserving the right to raise a grand jury challenge at a later stage in the case. See Maule,

142 Ariz. at 515, 690 P.2d at 816 (trial court may grant extension of time to file grand jury

challenge when request occurs before deadline). Frye made no such timely request here.

¶12           For the reasons stated above, we accept jurisdiction of the state’s petition for

special action and grant relief, vacating the respondent judge’s order remanding the

underlying charges to the grand jury.



                                              ____________________________________
                                              PETER J. ECKERSTROM, Presiding Judge

CONCURRING:



____________________________________

                                              7
PHILIP G. ESPINOSA, Judge



____________________________________
GARYE L. VÁSQUEZ, Judge




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