                              IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                   SCOTT ALLEN WOODINGTON,
                           Petitioner,

                                 v.

      HON. CHRISTOPHER BROWNING AND HON. KYLE BRYSON,
                JUDGES OF THE SUPERIOR COURT
                   OF THE STATE OF ARIZONA,
               IN AND FOR THE COUNTY OF PIMA,
                          Respondents,

                                and

                      THE STATE OF ARIZONA,
                       Real Party in Interest.

                      No. 2 CA-SA 2016-0024
                       Filed June 22, 2016


                   Special Action Proceeding
             Pima County Cause No. CR20153529001

         JURISIDICTION ACCEPTED; RELIEF DENIED


                            COUNSEL

Dean Brault, Pima County Legal Defender
By James L. Fullin and Dmitry Kashtelyan, Assistant Legal
Defenders, Tucson
Counsel for Petitioner
                 WOODINGTON v. BROWNING
                    Opinion of the Court

Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Real Party in Interest


                            OPINION

Presiding Judge Vásquez authored the opinion of the Court, in
which Chief Judge Eckerstrom and Judge Miller concurred.


V Á S Q U E Z, Presiding Judge:

¶1           In this special action, petitioner Scott   Woodington
challenges the determinations of the respondent          judge and
respondent presiding judge that he was not entitled     to a second
peremptory challenge to remove the assigned             judge after
Woodington was arraigned a second time. Finding         no abuse of
discretion, we accept jurisdiction but deny relief.

               Factual and Procedural Background

¶2            In September 2015, Woodington was indicted and
arraigned on a charge of second-degree murder. The state later
moved to amend the indictment, and Woodington moved to dismiss
or, in the alternative, to remand the matter to the grand jury. The
respondent judge, Judge Christopher Browning, determined there
were “enough areas of concern in the presentation to the Grand
Jury” to merit a new presentation and remanded the matter for a
redetermination of probable cause. The grand jury returned a new
indictment under the same cause number, and, on March 9, 2016,
Woodington was again arraigned.

¶3           On March 21, Woodington filed a notice of change of
judge pursuant to Rule 10.2, Ariz. R. Crim. P., requesting the
respondent judge’s removal from the case.           In the notice,
Woodington stated that “the court’s rotation of bench assignments
would have normally resulted in reassignment to [Judge Richard
Fields], which assignment would be acceptable to both parties.” The
respondent judge denied the request, noting that Woodington


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                     Opinion of the Court

previously had been indicted in the same cause number, “[t]he case
ha[d] been assigned to [the respondent judge] since its inception,”
and “[t]he original case ha[d] never been dismissed.” Citing Godoy
v. Hantman, the respondent judge thus determined the notice was
untimely. 205 Ariz. 104, 67 P.3d 700 (2003).

¶4            Woodington filed a motion with the respondent
presiding judge, Judge Kyle Bryson, arguing the notice was timely
and asking that the presiding judge “determine the assignment of
judge on th[e] case.” The presiding judge denied the motion and
this petition for special action followed.

                             Jurisdiction

¶5           A defendant may only challenge the denial of a motion
for a peremptory change of judge pursuant to Rule 10.2 by special
action. State v. Ingram, 239 Ariz. 228, ¶ 16, 368 P.3d 936, 940 (App.
2016). Therefore, because Woodington has no remedy by appeal,
this matter is appropriate for special-action jurisdiction. See Ariz. R.
P. Spec. Act. 1(a).

                              Discussion

¶6            Woodington contends the respondent judge exceeded
his legal authority and failed to perform a duty required by law by
failing to transfer his Rule 10.2 motion to the presiding judge. And
he argues the respondent judge erred in denying his motion as
untimely because it was filed within ten days of his second
arraignment.

¶7           “In interpreting a rule promulgated by the Arizona
Supreme Court, we rely on principles of statutory construction to
give effect to the supreme court’s intent.” Reed v. Burke, 219 Ariz.
447, ¶ 12, 199 P.3d 702, 705 (App. 2008). “If there is ‘uncertainty
about the meaning or interpretation of the [rule]’s terms,’ we are
required to employ ‘methods of statutory interpretation that go
beyond the [rule]’s literal language,’ such as ‘consideration of the
[rule]’s context, language, subject matter, historical background,
effects and consequences, and spirit and purpose.’” Hornbeck v.
Lusk, 217 Ariz. 581, ¶ 6, 177 P.3d 323, 325 (App. 2008) (alterations in


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Hornbeck), quoting Estancia Dev. Assocs. v. City of Scottsdale, 196 Ariz.
87, ¶ 11, 993 P.2d 1051, 1054 (App. 1999).

¶8            Woodington contends the language of Rule 10.2 is clear
and suggests we need not employ other methods of statutory
interpretation. He argues “[a]rraignment” in Rule 10.2(c) means any
arraignment, including one after a motion pursuant to Rule 12.9,
Ariz. R. Crim. P., is granted. The state, in contrast, asserts that
“[a]rraignment” refers to the first arraignment in the case, the point
at which a judge is assigned. Because the rule’s language is
reasonably susceptible to both interpretations, we consider other
methods of construction to determine our supreme court’s intent.
See State v. Jurden, 237 Ariz. 423, ¶ 11, 352 P.3d 455, 458-59 (App.
2015).

¶9            Rule 10.2(a) provides that “[i]n any criminal case, each
side is entitled as a matter of right to a change of judge.” This right
is exercised by the filing of a notice signed by counsel, avowing the
request is made in good faith. Ariz. R. Crim. P. 10.2(b). The rule
provides timeframes for filing the notice depending on the stage of
the proceedings. See Ariz. R. Crim. P. 10.2(c). Rule 10.2(c)(1)
requires the notice to be filed within ten days of the “[a]rraignment,
if the case is assigned to a judge and the parties are given actual
notice of such assignment at or prior to the arraignment.” The rule
does not include a definite or indefinite article to modify the term
“[a]rraignment,” but it does make clear that it provides “a”
peremptory challenge in “any” criminal case—the language
employed to modify each noun is singular. Ariz. R. Crim. P. 10.2(a),
(c). Therefore, a defendant is entitled to only one peremptory
challenge in a criminal case. See Hill v. Hall, 194 Ariz. 255, ¶ 10, 980
P.2d 967, 970 (App. 1999).

¶10          Thus, whether a party is entitled to file a peremptory
challenge following a subsequent arraignment turns upon whether
that arraignment has taken place in the same “criminal case” or is
part of a new “criminal case.” Ariz. R. Crim. P. 10.2(a). In Godoy, on
which Woodington relies, our supreme court addressed the second
circumstance—a second arraignment that was part of a new
proceeding. 205 Ariz. 104, ¶ 1, 67 P.3d at 701. Godoy moved for a
new finding of probable cause pursuant to Rule 12.9, and, when the

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                      Opinion of the Court

state did not timely recommence a grand jury proceeding, the trial
court dismissed the matter pursuant to Rule 12.28(c), Ariz. R.
Crim. P.1 Id. ¶ 3. After the case was dismissed, the state filed new
charges and the grand jury issued an indictment arising from the
same conduct “underlying the first indictment.” Id. ¶ 4. The case
was assigned to the same judge, and, two days later, the state filed a
notice of change of judge under Rule 10.2. Id. Godoy filed a special
action challenging the trial court’s order transferring the matter to
another judge. Id. ¶¶ 4-5.

¶11          On review, our supreme court noted the question
whether the state’s peremptory challenge was timely “depends
upon whether the subsequent indictment simply ‘continued’ the
earlier action or instituted a new action” and the “resolution of this
issue depends upon the effect of the trial court’s order dismissing
the action without prejudice.” Id. ¶ 6. In holding the state was
entitled to a change of judge under Rule 10.2, the court explained
that, once the initial proceeding was dismissed, “nothing remained
of that action” and, “[w]hen the new case began, Rule 10.2 provided
each party a peremptory right to change the judge within the time
permitted by the rule.” Id. ¶ 8. Notably, the court distinguished
Godoy’s case from State v. Poland, 144 Ariz. 388, 698 P.2d 183 (1985),
on the basis that, “[i]n Poland, the judge did not dismiss the action.”
Godoy, 205 Ariz. 104, ¶ 9, 67 P.3d at 703.

¶12          Thus, unlike the situation in Godoy, Woodington was
not entitled to a second peremptory challenge because his case was
never dismissed. Indeed, the language of Rule 12.9 anticipates that
on remand to the grand jury the case simply “continues” after the
new finding of probable cause.

¶13         Rule 12.9(a) allows a defendant to challenge grand-jury
proceedings on certain grounds, and, if such a motion is granted,
Rule 12.9(c) provides that “the State may proceed with the
prosecution of the case pursuant to Rule 2, Rules of Criminal

      1 Although  Rule 12.28(c) applies to state grand juries, its
language, with a few minor exceptions, essentially mirrors the
language of Rule 12.9(c), which applies to county grand juries.


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Procedure, or by resubmission to the same or another grand jury.”
The language of this rule is singular as well—the state is allowed to
continue its “prosecution of the case.” Ariz. R. Crim. P. 12.9(c)
(emphasis added). And Rule 12.9(c) directs, “Unless a complaint is
filed or a grand jury consideration is commenced within fifteen days
after entry of the order granting the motion under this rule, the case
shall be dismissed without prejudice.” Thus, the case will continue
unless the state fails to timely proceed. In view of Rule 12.9’s
language, we conclude our supreme court intended that a remand
for a new determination of probable cause does not automatically
trigger a new criminal case. Rather, the case simply continues
unless the state fails to timely act, at which point the case “shall be
dismissed without prejudice.” Ariz. R. Crim. P. 12.9(c).

¶14          Our conclusion is bolstered by the speedy-trial
provisions of Rule 8, Ariz. R. Crim. P., and the waiver provisions of
Rule 10.4. Rule 8.4 sets forth the time periods to be excluded in
calculating the deadline by which a case must be tried. Among the
excluded periods are those for “[d]elays resulting from a remand for
new probable cause determination under Rules 5.5 or 12.9.” Ariz. R.
Crim. P. 8.4(b). That the supreme court included a provision to
exclude the time during which a remand takes place suggests it
anticipated a continuing proceeding, not a new one.

¶15           Additionally, Rule 10.4(a) provides that parties waive
their right to a peremptory challenge by “participat[ing] before that
judge in any contested matter in the case, an omnibus hearing, any
pretrial hearing, a proceeding under Rule 17, or the commencement
of trial.” The respondent judge’s ruling on Woodington’s Rule 12.9
motion, after a hearing, constituted a court determination after a
contested proceeding. And Rule 10.4(b) specifies the lone ground
for “[r]enewal” of the right to a peremptory challenge—“[w]hen an
action is remanded by an Appellate Court for a new trial on more
offenses charged in the indictment.” The supreme court did not
include the grant of a Rule 12.9 motion as the basis for a renewal of
the right.

¶16         Having concluded that a remand pursuant to Rule 12.9
does not trigger a new criminal proceeding absent a dismissal, we
necessarily conclude that “[a]rraignment” as used in Rule 10.2(c)

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                  WOODINGTON v. BROWNING
                     Opinion of the Court

refers only to the first arraignment in a case. The rule and our case
law are clear that each party is only entitled to one peremptory
challenge to a judge in a case, and, as described above, we conclude
that a criminal case simply continues following remand for a
redetermination of probable cause unless it is dismissed. 2 Thus, a
second arraignment in the same case does not trigger a new
peremptory challenge.

¶17          Our supreme court has directed that “any provision
relating to disqualification of judges must be given strict
construction to safeguard the judiciary from frivolous attacks upon
its dignity and integrity and to ensure the orderly function of the
judicial system.” State v. Perkins, 141 Ariz. 278, 286, 686 P.2d 1248,
1256 (1984), overruled on other grounds by State v. Noble, 152 Ariz. 284,
731 P.2d 1228 (1987). “A construction which would expand the
availability of peremptory changes of judge would be inconsistent
with the[] principles” of interpretation set forth by that court.
Fiveash v. Superior Court, 156 Ariz. 422, 425, 752 P.2d 511, 514 (App.
1988). Allowing a party to participate in a contested matter without
waiving the peremptory challenge or to otherwise gain a second
opportunity for such a challenge in the same proceeding clearly
would expand the availability of peremptory challenges and
presents the possibility of “frivolous attacks” upon the judiciary.


      2Woodington     cites Bowman v. State, 103 Ariz. 482, 483, 445 P.2d
841, 842 (1968), for the proposition that “there is no case pending in
the Superior Court until a new information is filed.” But, in that
case, the information was quashed and no new information was
filed within the thirty days allowed by the applicable criminal rule.
Id. The trial court denied the defendant’s motion to dismiss, but our
supreme court ruled the state was required to file a new information
to proceed. Id. Although the matter had not expressly been
dismissed, the applicable rule required dismissal after thirty days,
suggesting the court viewed the matter as effectively dismissed
when the state failed to timely proceed. See id. We therefore
conclude, to the extent it is applicable to the current criminal
procedure rules on the point presented here, Bowman is consistent
with our holding.


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                  WOODINGTON v. BROWNING
                     Opinion of the Court

Perkins, 141 Ariz. at 286, 686 P.2d at 1256. We therefore disagree
with Woodington’s interpretation of Rule 10.2 and conclude a party
is not entitled to a second peremptory strike after a second
arraignment when the case has not been dismissed.3

¶18         Woodington also contends the respondent presiding
judge failed to perform a required duty when he denied
Woodington’s motion to determine reassignment of this matter. For
the reasons explained above, we reject his claim that the respondent
presiding judge erred insofar as he accepted the respondent judge’s
ruling that Woodington was not entitled to an additional
peremptory challenge.

¶19           Woodington’s argument as to the respondent presiding
judge also focuses, however, on a superior court administrative
order relating to bench assignments. That order provides in relevant
part that “[c]riminal cases assigned to [the respondent judge] will be
reassigned to Judge Fields” on February 1, 2016. Thus, Woodington
maintains, the respondent judge should not have been allowed to
continue on his case and “[t]he published reassignment of criminal
cases . . . was not followed.” We disagree.

¶20          First, the administrative order is a notice provision that
reflects the superior court’s operations. Second, assuming for the
sake of argument that Woodington had a right to rely on the
administrative order, he waived it. The administrative order was
effective on February 1, 2016. The hearing on the state’s motion to
amend the indictment and Woodington’s motion to remand the
matter to the grand jury also was held on February 1. Indeed, the

      3 Woodington suggests that unfairness could result, for
example, from the state’s amending or adding charges upon remand
to the grand jury in which case he theorizes the state would be
entitled to another peremptory challenge. But our decision applies
equally to both parties. Any amendment or additional charges in
the same case will not entitle the state to successive peremptory
challenges under Rule 10.2. See Godoy, 205 Ariz. 104, ¶ 6, 67 P.3d at
702 (“Rule 10.2 entitles either party in a criminal case to a change of
judge as a matter of right.”) (emphasis added).


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                  WOODINGTON v. BROWNING
                     Opinion of the Court

respondent judge granted Woodington’s motion on that date and
ordered the matter remanded to the grand jury. Nothing in the
minute entry for that hearing indicates that Woodington objected to
the respondent judge’s continuing to preside over the matter. Any
claim of error relating to the lack of enforcement of that order is
therefore waived. Finally, Rule 24, Pima Cty. Super. Ct. Loc. R. P.,
permits the trial court to suspend a local rule for “good cause
shown.” The local rules govern assignment of cases and handling
by the court administrator. 4 The respondent judge explained in
detail the reasons for his departure from the administrative order
and by so doing provided good cause to suspend the assignment of
the case that otherwise would have occurred under the
administrative order.5

                             Disposition

¶21          For the reasons stated above, we accept jurisdiction but
deny relief.




      4Rule 91(c), Ariz. R. Sup. Ct., requires superior courts to adopt
rules for “assignment of cases to the different judges.” Rule 6.3,
Pima Cty. Super. Ct. Loc. R. P., specifically addresses civil actions,
but the record before us suggests the superior court relies on it for
the procedure in criminal cases as well. Rule 6, Pima Cty. Super. Ct.
Loc. R. P., also discusses the responsibilities of the Pima County
superior court administrator, which include advising attorneys of
the status of calendars, as it did by the February 1 administrative
order. See Ariz. R. Sup. Ct. 93(a)(2), (3).
      5We  recognize there are scenarios in which a party could file a
challenge under Rule 10.2(c)(3) based upon reassignment pursuant
to an administrative order. But in those circumstances it is
Rule 10.2(c)(3) that gives the authority to file the challenge, not the
administrative order. In the present case, Woodington has not
demonstrated that the administrative order in question, or the
respondent judge’s implicit decision to suspend it, constituted
formal notice of reassignment sufficient to trigger Rule 10.2(c)(3).


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