                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                 ERNESTO ALONZO MORAN, Petitioner,

                                        v.

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

        WILLIAM MONTGOMERY, Maricopa County Attorney,
                    Real Party in Interest.

                             No. 1 CA SA 15-0053
                               FILED 4-7-2015


 Petition for Special Action from the Superior Court in Maricopa County
                          No. CR2014-105894-001
                   The Honorable Robert E. Miles, Judge

           JURISDICTION ACCEPTED; RELIEF GRANTED


                                   COUNSEL

Shell & Nermyr, PLLC, Chandler
By Mark A. Nermyr
Counsel for Petitioner

Maricopa County Attorney’s Office, Phoenix
By David R. Cole
Counsel for Real Party in Interest
               MORAN v. HON. MILES/MONTGOMERY
                       Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge John C. Gemmill and Judge Donn Kessler joined.


J O N E S, Judge:

¶1             Through this special action, Ernesto Moran challenges the
trial court’s grant of the State’s motion to amend the indictment brought
against him, in which the State sought to change the date of the charged
offense of misconduct involving weapons from December 18, 2013, to
February 4, 2014. Moran argues the amended indictment describes an
offense separate and apart from that originally charged, and for which there
has been no finding of probable cause by a grand jury, in violation of the
Arizona Constitution and Arizona Rules of Criminal Procedure. For the
following reasons, we accept jurisdiction and grant relief.

                FACTS AND PROCEDURAL HISTORY

¶2            On February 12, 2014, the State presented evidence to a grand
jury regarding Moran’s alleged participation in a home invasion. In his
presentation, the prosecutor told the grand jury the crimes “occurred in
Phoenix and in Maricopa County all on the 18th day of December, 2013.”

¶3            The victim reported to police that, on December 18, 2013, she
was confronted by three subjects as she exited the shower in her home. One
subject grabbed her by the hair, threw her to the ground, pointed a pistol at
her face, and demanded she tell him the location of her safe. A second
subject discovered a shotgun that belonged to the victim’s boyfriend and
also pointed it at her face and demanded the location of the safe. The three
subjects then searched the house, collected shotgun shells and other
accessories in a bag, and exited the home through the front door with the
bag and shotgun.

¶4            The victim recognized one of the subjects, who was later
identified as Moran, as an acquaintance of her cousin. With this knowledge,
she was then able to locate a photograph on Facebook of Moran holding the
shotgun taken from her residence. On February 4, 2014, Moran was
detained outside his mother’s home while exiting a green SUV and
transported to the police station for questioning regarding the home



                                     2
                MORAN v. HON. MILES/MONTGOMERY
                        Decision of the Court

invasion. During the interview, Moran admitted having a prior felony
conviction. In the green SUV, police officers found the shotgun, shotgun
shells, and other ammunition believed to have been taken from the victim’s
home.

¶5          On February 12, 2014, a grand jury returned a True Bill, which
indicted Moran on five offenses: burglary in the first degree (count 1);
armed robbery (count 2); kidnapping (count 3); aggravated assault (count
4); and misconduct involving weapons (count 5). Each crime in the
indictment was specifically alleged to have occurred on December 18, 2013.

¶6            On November 14, 2014, the trial court granted the State’s
motion to dismiss counts 1 through 4. Thereafter, on February 17, 2015, the
State moved to amend count 5, the sole remaining count, in order to
“chang[e] the date of offense indicated . . . from the ‘18th day of December
2013’ to the ‘4th day of February 2014.’” The State argued (1) it simply
sought “to correct a mistake in fact in the indictment as to the date that
[Moran] possessed the shotgun,” (2) the change of date did not alter any of
the elements of a charge, and (3) Moran would not be prejudiced by an
amendment because the State’s discovery reflected the shotgun was
recovered from Moran on February 4, 2014. Over Moran’s objection, the
court granted the State’s motion on the ground that the incorrect date was
a “mistake of fact.” This special action followed.

                              JURISDICTION

¶7              This Court has discretion to accept special action jurisdiction,
and will generally do so in cases that raise issues of statewide importance,
issues of first impression, pure legal questions, or issues that are likely to
arise again. Frimmel v. Sanders, 236 Ariz. 232, 238, ¶ 22, 338 P.3d 972, 978
(App. 2014) (citing Potter v. Vanderpool ex rel. Cnty. of Pinal, 225 Ariz. 495,
498, ¶ 6, 240 P.3d 1257, 1260 (App. 2010), and Luis A. v. Bayham-Lesselyong
ex rel. Cnty. of Maricopa, 197 Ariz. 451, 452-53, ¶ 2, 4 P.3d 994, 995-96 (App.
2000)). Special action review is also appropriate where there is no plain,
adequate or speedy remedy by appeal, and justice cannot be obtained by
other means. Id. (citing Luis A., 197 Ariz. at 452-53, ¶ 2, 4 P.3d at 995-96);
Ariz. R.P. Spec. Act. 1(a).1




1      Absent material revisions from the relevant date, we cite the current
version of statutes and procedural rules.



                                       3
                MORAN v. HON. MILES/MONTGOMERY
                        Decision of the Court

¶8             Generally, a defendant cannot challenge a grand jury’s
finding of probable cause on direct appeal. State v. Moody, 208 Ariz. 424,
439-40, ¶ 31, 94 P.3d 1119, 1134-35 (2004) (citing State v. Murray, 184 Ariz. 9,
32, 906 P.2d 542, 565 (1995)). Additionally, the interpretation and
application of the Arizona Rules of Criminal Procedure are questions of law
appropriate for review by special action. Chartone, Inc. v. Bernini, 207 Ariz.
162, 165-66, ¶ 8, 83 P.3d 1103, 1106-07 (App. 2004). For these reasons, and
because we conclude the trial court abused its discretion, we accept
jurisdiction and grant relief. Ariz. R.P. Spec. Act. 3.

                                DISCUSSION

¶9             We review a decision on a motion to amend an indictment for
an abuse of discretion. State v. Johnson, 198 Ariz. 245, 247, ¶ 4, 8 P.3d 1159,
1161 (App. 2000) (citing State v. Sammons, 156 Ariz. 51, 54, 749 P.2d 1372,
1375 (1988)). The trial court abuses its discretion where it commits an error
of law in the process of reaching a discretionary conclusion. Twin City Fire
Ins. Co. v. Burke, 204 Ariz. 251, 254, ¶ 10, 63 P.3d 282, 285 (2003) (citing Grant
v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982)).

¶10            In Arizona, a felony action may be commenced by indictment
or the filing of a complaint.2 Ariz. Const. art. 2, § 30; Ariz. R. Crim. P. 2.2.
“An indictment is a written statement charging the commission of a public
offense, presented to the court by a grand jury, endorsed a ‘true bill’ and
signed by the foreman [of a grand jury].” Ariz. R. Crim. P. 13.1(a). It serves
a dual purpose: to provide a defendant with notice of the charges against
him, and also “to ensure that a neutral intermediary — a grand jury
comprised of ordinary citizens — finds that probable cause exists before the
State can bring charges.” McKaney v. Foreman ex rel. Cnty. of Maricopa, 209
Ariz. 268, 274-75, ¶ 31, 100 P.3d 18, 24-25 (2004) (Hurwitz, J., dissenting in
part and concurring in part) (citing State v. Superior Court (Mauro), 139 Ariz.
422, 424, 678 P.2d 1386, 1388 (1984), and State v. Baumann, 125 Ariz. 404, 408,
610 P.2d 38, 42 (1980)); see also Ariz. Rev. Stat. § 21-413 (requiring indictment
be based upon probable cause); Ariz. R. Crim. P. 12.1(d)(4) (same). The
indictment therefore “limits the trial to the specific charge or charges”
stated therein. Ariz. R. Crim. P. 13.5(b).




2      Because the State elected in the immediate case to proceed by
indictment, we need not delve into the respective rights and obligations
associated with the complaint process.



                                        4
                MORAN v. HON. MILES/MONTGOMERY
                        Decision of the Court

¶11             Absent consent from the defendant, an indictment may be
amended “only to correct mistakes of fact or remedy formal or technical
defects.” Id.; see also State v. Kelly, 123 Ariz. 24, 26, 597 P.2d 177, 179 (1979)
(“[A]n indictment may not be amended by the court to charge new and
different matters of substance without the concurrence of the grand jury.”)
(citing State v. Fogel, 16 Ariz. App. 246, 250, 492 P.2d 742, 746 (1972)). Thus,
by its terms, Rule 13.5(b) applies only where there is a “mistake or defect in
the indictment.” See State v. Freeney, 223 Ariz. 110, 113, ¶ 18, 219 P.3d 1039,
1042 (2009).

¶12            Amendment of the date of an offense has been found
appropriate where the offense itself remains unchanged. For example, in
State v. Bruce, amendment of the indictment, adjusting by one day the date
the defendant knowingly received the earnings of prostitution, was
appropriate to conform to the evidence presented at trial. 125 Ariz. 421,
423-24, 610 P.2d 55, 57-58 (1980); see also State v. Self, 135 Ariz. 374, 380, 661
P.2d 224, 230 (App. 1983) (permitting amendment to perjury charge to
conform to evidence that date of hearing at which defendant perjured
himself was September 11, 1979, rather than August 11, 1979, as alleged in
indictment). An amendment to the date of a charged offense is
impermissible, however, where the evidence reflects two separate events
occurred. See State v. Mikels, 119 Ariz. 561, 563, 582 P.2d 651, 653 (App. 1978)
(vacating defendant’s conviction based upon amendment to indictment
changing location of sodomy offense from shower to bunk where evidence
indicated they were two separate events occurring twelve or thirteen days
apart).

¶13           Here, the State argues that the discrepancy between the dates
was a technical defect, arising from the lack of a “clear transition” during
the presentation to the grand jury between the events of December 18, 2013,
and those of February 4, 2014, and that “it can readily be inferred that Count
5 was based on what law enforcement officers discovered the day [Moran]
was arrested.” This argument is not supported by the record. The grand
jurors were never told the date of Moran’s detention, or that any of the
described events specifically occurred on February 4, 2014. Instead, the
State asserted that all of the alleged crimes, including misconduct involving
weapons, occurred “on the 18th day of December, 2013.” The evidence
presented to the grand jury also supported a finding of probable cause that
Moran possessed a weapon on December 18, 2013. Specifically, the grand
jury heard that, on December 18, 2013, Moran, a prohibited possessor, was
involved in a home invasion and robbery with two other persons, and was
one of the assailants who pointed a firearm at the victim’s face.



                                        5
                 MORAN v. HON. MILES/MONTGOMERY
                         Decision of the Court

¶14            Although the statutory violation asserted in the amended
indictment at count 5 is the same as that in the original indictment, it
describes a wholly separate factual event, occurring almost two months
after the one specified in the original indictment, upon facts never
specifically provided to or considered by the grand jury in its probable
cause determination, distinguishing this matter from State v. Bruce. “This
is not a case where only one crime has been committed and there remains a
question as to the date on which it occurred or where it occurred. In this
case there were two separate and distinct acts of [misconduct involving
weapons],” Mikels, 119 Ariz. at 563, 582 P.2d at 653, one occurring on
December 18, 2013, and a separate event occurring on February 4, 2014.
Thus, the record reflects “the indictment was not defective at all,” and Rule
13.5 does not apply. See Freeney, 223 Ariz. at 113, ¶¶ 19-20, 219 P.3d at 1042.

¶15            Rule 13.5(b) does not permit the State to avoid a defendant’s
constitutional right that an indictment be based upon probable cause by
amending an accurate indictment to pursue the same charge occurring on
a different occasion. See State v. Sanders, 205 Ariz. 208, 212, 217, ¶¶ 9-10, 37,
68 P.3d 434, 438 443 (App. 2003) (reversing mid-trial amendment to
indictment “to conform to the evidence” that a crime different than that
originally charged was committed and noting “[a] defendant does not
suffer a constitutionally diminished entitlement to notice from the state
simply because a trial is being conducted on one charge and evidence of
another offense has been admitted.”), overruled in part on other grounds by
Freeney, 223 Ariz. at 113-114, ¶¶ 21-26, 219 P.3d at 1042-43; State v. Singh, 4
Ariz. App. 273, 278, 419 P.2d 403, 408 (1966) (disapproving amendment
changing recipient of forged document on grounds that the substitution of
a different recipient created a separate and distinct crime), superseded by
statute on other grounds as stated in State v. Allen, 235 Ariz. 72, 75 n.2, ¶ 8, 326
P.3d 339, 342 n.2 (App. 2014).

¶16            Nor is there any authority to support the State’s suggestion
that Moran impliedly consented to the amendment. To the contrary, the
right of the accused to be advised of the charges against him with an ample
opportunity to prepare an adequate defense is a fundamental element of
due process. State v. Branch, 108 Ariz. 351, 354-55, 498 P.2d 218, 221-22
(1972). On this premise, this Court has, on at least one occasion, held that a
defendant himself must give actual consent to the amendment of an
indictment to ensure due process is satisfied. State v. Sanders, 115 Ariz. 289,
293, 564 P.2d 1256, 1260 (App. 1977) (noting in light of fundamental due
process concerns “[i]t is therefore not too much to ask that the defendant be
apprised of what is occurring and that his consent be secured”).
Additionally, the record does not support an implication of consent where


                                         6
                MORAN v. HON. MILES/MONTGOMERY
                        Decision of the Court

Moran objected to the amendment once the State eventually sought to try
him on a set of facts different from the original indictment.

¶17            The State nonetheless argues that Moran was not prejudiced
by the amendment because he knew or should have known of the State’s
intent to proceed on the charge of weapons misconduct in relation to the
February 4, 2014 events, as discovery included reference to the seizure of
the weapons that followed Moran’s arrest. See Freeney, 223 Ariz. at 115,
¶ 28, 219 P.3d at 1044 (affirming conviction where violation of Rule 13.5 was
harmless beyond a reasonable doubt). This Court has previously rejected
the notion that the State may elect to proceed against a defendant on a
separate, subsequent act at trial and amend the indictment to conform to its
strategy without notice to that defendant. Mikels, 119 Ariz. at 563, 582 P.2d
at 653. There is no evidence the State intended the information regarding
the recovery of the shotgun and other weapons in the vehicle Moran exited
prior to his detention to be anything more than additional evidence tending
to tie Moran to the December 18, 2013 incident. See id. (rejecting suggestion
that defendant consented to amendment based on presentation of evidence
that may have supported the amended charge, but was clearly admitted for
separate purpose). And, nothing within the record prior to the proposed
amendment indicates the State intended to pursue a second count of
misconduct involving weapons. The mere fact of the disclosure of the
seizure of the shotgun is not sufficient to put Moran on notice that he would
be tried for a wholly different crime, occurring on a different day than any
other event with which he was charged.

¶18            We are likewise unconvinced by the State’s contention that
Moran “foreclosed any argument” that he has been prejudiced by the
amendment because he stated he did not believe the State could prove the
crime of misconduct involving weapons occurred as charged, on December
18, 2013. While such an assertion by a defendant may prompt the State to
reassess its likelihood of success in prosecuting the charge specified in the
original indictment, it does not provide license to assert, through an
indictment amended by the trial court, that the grand jury found probable
cause the defendant committed a crime based upon a set of circumstances
it was never asked to consider. No grand jury has decided Moran should
stand trial for a weapons offense that allegedly occurred months after the
home invasion. Moran is most certainly prejudiced where “the variation
[sought by an amendment] destroyed the defendant’s substantial right to
be tried only on charges presented in an indictment returned by a grand
jury.” Mikels, 119 Ariz. at 563, 582 P.2d at 653 (citing Stirone v. United States,
361 U.S. 212, 215-19 (1960)).



                                        7
                MORAN v. HON. MILES/MONTGOMERY
                        Decision of the Court

¶19             To permit the State to amend an indictment in the manner
presented here would impermissibly compromise the imprimatur of the
grand jury. Such a result would be contrary to the essential purpose of the
grand jury, which is to stand as a neutral intermediary “between the accuser
and the accused.” Maretick v. Jarrett, 204 Ariz. 194, 197, ¶ 8, 62 P.3d 120, 123
(2003) (quoting Wood v. Georgia, 370 U.S. 375, 390 (1962)) (internal
quotations omitted); see also Mikels, 119 Ariz. at 563, 582 P.2d 653 (describing
“very purpose” of requiring indictment by a grand jury is “to eliminate [a
defendant’s] jeopardy to offenses charged by a group of his fellow citizens
acting independently of either prosecuting attorney or judge”) (citing
Stirone, 361 U.S. at 218); State v. McAllister, 875 A.2d 866, 877 (N.J. 2005)
(“‘[T]he grand jury remains a constitutional bulwark against hasty and ill-
founded prosecutions and continues to lend legitimacy to our system of
justice by infusing it with a democratic ethos.’”) (quoting State v. Fortin, 843
A.2d 974, 1030-31 (N.J. 2004)). Surrender of that neutrality to the State
would open the door to the very dangers of excessive and unreasonable
official interference with personal liberty our Constitution protects against.

                               CONCLUSION

¶20           On this record, we are not persuaded that Moran’s basic due
process rights to a finding of probable cause and notice as to the charges
against him were satisfied through the wholesale amendment of count five
of the original indictment to include events occurring on February 4, 2014,
without the matter having been returned to the grand jury. The
amendment to the indictment was not authorized under Rule 13.5(b), and
the trial court abused its discretion in granting the State’s motion. As a
result, we accept jurisdiction, vacate the order amending the indictment,
vacate the stay entered pending resolution of this special action, and
remand to the trial court for further proceedings consistent with this
decision.




                                   :ama




                                       8
