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       UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
          PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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


            WILLIAM SCOTT HARVEY, Petitioner/Appellant,

                                       v.

    HON. MITCHELL KALAULI, Magistrate of the Lake Havasu City
              Municipal Court, Respondent/Appellee,

           STATE OF ARIZONA, Real Party in Interest/Appellee.

                            No. 1 CA-CV 15-0848
                              FILED 2-16-2017


           Appeal from the Superior Court in Mohave County
                       No. B8015CV2015-04145
               The Honorable Derek C. Carlisle, Judge

                                 AFFIRMED


                                  COUNSEL

Knochel Law Offices, Bullhead City
By Keith S. Knochel, Aline K. Knochel, Joshua C. Smith
Counsel for Petitioner/Appellant

Lake Havasu City Attorney’s Office, Lake Havasu
By Charles F. Yager
Counsel for Real Party in Interest/Appellee
                   HARVEY v. HON. KALAULI/STATE
                        Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge John C. Gemmill1 joined.


D O W N I E, Judge:

¶1             William Scott Harvey challenges the superior court’s denial
of special action relief. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            On March 15, 2015, Harvey was arraigned in Lake Havasu
City Municipal Court on charges of assault and disorderly conduct. He
entered a not guilty plea and was released on his own recognizance. During
a June 25, 2015 hearing, the municipal court set Harvey’s trial for October
28, 2015.

¶3             On September 15, 2015, Harvey moved to dismiss the criminal
charges pursuant to Arizona Rule of Criminal Procedure (“Rule”) 8.6,
arguing his trial did not occur within 180 days of his arraignment, as Rule
8.2(a)(2) requires. (The 180th day was September 11, 2015.) It is undisputed
that the municipal court denied Harvey’s motion, though the appellate
record does not include that ruling.

¶4             Harvey filed a special action petition in the superior court on
October 21, 2015. He did not ask the superior court to stay the municipal
court proceedings, and his trial took place as scheduled on October 28. See
Ariz. R.P. Spec. Act. 5 (“The filing of a complaint in a special action and the
setting of the matter for hearing shall not stay any proceedings in the court
or tribunal as to which special relief is sought unless a stay is specifically
ordered.”).

¶5           The superior court considered Harvey’s special action
petition on November 30, 2015. Although the municipal court trial had
concluded four weeks earlier, the municipal court had not yet issued its
decision. The superior court accepted special action jurisdiction but denied

1      Pursuant to Article VI, Section 3 of the Arizona Constitution, the
Arizona Supreme Court designated the Honorable John C. Gemmill,
Retired Judge of the Court of Appeals, to sit in this matter.


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                    HARVEY v. HON. KALAULI/STATE
                         Decision of the Court

relief. Harvey filed a timely notice of appeal. We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

                                 DISCUSSION

¶6               We review the denial of special action relief for abuse of
discretion. Home Builders Ass’n of Cent. Ariz. v. City of Goodyear, 223 Ariz.
193, 195, ¶ 8 (App. 2009). This Court will affirm the superior court’s ruling
if it is correct for any reason. Ariz. Bd. of Regents v. State ex rel. State of Ariz.
Pub. Safety Ret. Fund Manager Adm’r, 160 Ariz. 150, 154 (App. 1989).

¶7              Rule 8.1(d) states that defense counsel shall “advise the court
of the impending expiration of time limits in the defendant’s case” and
provides that the failure to do so “should be considered by the court in
determining whether to dismiss an action with prejudice pursuant to Rule
8.6.” Relying on State v. Tucker, 133 Ariz. 304 (1982), Harvey contends his
defense counsel had no such reporting obligation because there were no
“intervening delays between the event that trigger[ed] Rule 8.2 and the
expiration of the Rule 8.2 time limit.” See id. at 308 n.5. The State cites
subsequent appellate decisions holding that a defendant “cannot wait until
after the [Rule 8.2] period has expired and then claim a Rule 8 violation after
it is too late for the trial court to prevent the violation.” State v. Swensrud,
168 Ariz. 21, 23 (1991); see also State v. Vasko, 193 Ariz. 142, 148, ¶ 25 (App.
1998) (“Rule 8 requires a defendant to notify the court of an impending
speedy trial deadline in order to preserve his objection to a Rule 8
violation.”). If a trial court concludes that the failure to advise of impending
speedy trial deadlines is intentional, “the only appropriate sanction in some
cases may be to consider the time during which such conduct has occurred
as excluded, thus resulting in a denial of a motion to dismiss.” State v.
Techy, 135 Ariz. 81, 85 (App. 1982).

¶8             Our review is materially hampered by the lack of an adequate
record from the municipal court. Indeed, Harvey has provided nothing
from that court other than his motion to dismiss, the State’s response, and
his reply. In the superior court, the State argued that the municipal court
found it “hard to believe” defense counsel had not intentionally failed to
advise it of the speedy trial deadline and thus “felt the appropriate action
in this case was to sanction based on Techy and Spreitz and deny the motion
to dismiss.” Harvey disagreed with that assertion, stating, “there’s no
record of what [the prosecutor] is saying is accurate.”




                                         3
                  HARVEY v. HON. KALAULI/STATE
                       Decision of the Court

¶9         In denying special action relief, the superior court
emphasized the lack of an adequate record from the municipal court,
stating:

      I think the case law is clear, in the absence of a record, I have
      to presume that the record supports the decision by the judge,
      that it supports what the judge did in connection with this
      case. Judges are presumed to know the law, presumed to act
      according to the law, so in the absence of a record, I have to
      presume that the record would support the Judge’s decision.

Although the superior court went on to discuss the interpretation and
application of Rule 8.1(d), immediately before ruling, it again stressed the
lack of an adequate record, stating:

      [T]he parties seem to agree, although, again, I don’t have a
      record, that the municipal court Judge did rely or at least did
      reference Techy . . . and Spreitz when making his decision in
      connection with this case. I am assuming that he is aware of
      it and that he made a decision based on that case which does
      require some perhaps intentional conduct on the part of the
      defendant in failing to advise the Court prior to the expiration
      of the time limit.

      When I consider the arguments that have been made to me in
      connection with this case, the information that has been
      presented to me, the Court finds that there is not any specific
      indication or evidence that the municipal court Judge abused
      his discretion or acted in an arbitrary and capricious manner.
      I am denying the relief.

¶10            As did the superior court, we presume that the missing record
items would support the municipal court’s decision. See State ex rel. Baumert
v. Superior Court, 118 Ariz. 259, 260–61 (1978) (“[W]hen an incomplete
record is presented to an appellate court, it must assume that any testimony
or evidence not included in the record on appeal supported the action taken
by the trial court.”); see also Renner v. Kehl, 150 Ariz. 94, 97 n.1 (1986)
(“Without a record we must presume that . . . there was substantial evidence
in the complete record to support the findings of the trial court.”). The
record that is before us suggests the municipal court may have determined
that actions or omissions by the defense warranted exclusion of an
indeterminate amount of time. Without a complete record, the superior
court could not conclude the municipal court erred, and the same deficiency



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                 HARVEY v. HON. KALAULI/STATE
                      Decision of the Court

prevents us from concluding that the superior court abused its discretion
by denying special action relief.

                             CONCLUSION

¶11          For the foregoing reasons, we affirm the judgment of the
superior court.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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