                           IN THE
            ARIZONA COURT OF APPEALS
                         DIVISION TWO


                     PETER J. KANIOWSKY,
                      Plaintiff/Appellant,

                              v.

        THE PIMA COUNTY CONSOLIDATED JUSTICE COURT;
          THE HON. MARIA L. FELIX, A JUDGE THEREOF;
          AND THE PIMA COUNTY ATTORNEY’S OFFICE,
                    Defendants/Appellees.

                    No. 2 CA-CV 2015-0157
                     Filed March 21, 2016


         Appeal from the Superior Court in Pima County
                         No. C20151493
           The Honorable Richard D. Nichols, Judge

                VACATED AND REMANDED


                          COUNSEL

Benavidez Law Group, P.C., Tucson
By Javier Alatorre
Counsel for Plaintiff/Appellant

Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Tucson
Counsel for Defendants/Appellees
     KANIOWSKY v. PIMA CTY. CONSOL. JUSTICE COURT
                   Opinion of the Court


                              OPINION

Presiding Judge Howard authored the opinion of the Court, in
which Judge Espinosa and Judge Staring concurred.


H O W A R D, Presiding Judge:

¶1           Peter Kaniowsky appeals from the trial court’s denial of
relief in his special action challenging the Pima County Justice
Court’s denial of his request for a jury trial on five unlawful
imprisonment charges. Kaniowsky argues he is entitled to a jury
trial because unlawful imprisonment was a jury-eligible offense at
common law. Because we agree with Kaniowsky, we vacate the
court’s order and remand for further proceedings.

                Factual and Procedural Background

¶2            The relevant facts are not in dispute. Kaniowsky was
charged in justice court with five counts each of assault and
unlawful imprisonment. He filed a motion requesting a jury trial for
the false imprisonment counts,1 which the court denied. He then
filed a complaint for special action in superior court, arguing he was
entitled to a jury trial because false imprisonment was a jury-eligible
offense at common law. The superior court accepted jurisdiction but
denied relief. It reasoned that Amancio v. Foster, 196 Ariz. 95, 98, 993
P.2d 1059, 1062 (App. 1999), which concluded that unlawful
imprisonment was not a jury-eligible offense based on its
seriousness, was controlling and thus Kaniowsky was not entitled to
a jury trial. We have jurisdiction over Kaniowsky’s appeal pursuant
to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1). See Ariz. R. P. Spec.
Actions 8(a).


      1Our  supreme court has found that misdemeanor assault is
“the equivalent of a simple battery at common law, which was not a
crime requiring a jury trial.” Bruce v. State, 126 Ariz. 271, 273, 614
P.2d 813, 815 (1980). Kaniowsky has not attempted to challenge that
conclusion.


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     KANIOWSKY v. PIMA CTY. CONSOL. JUSTICE COURT
                   Opinion of the Court

                      Applicability of Amancio

¶3           Kaniowsky argues that the superior court erred by
relying on Amancio because it did not reach the question of whether
unlawful imprisonment had a jury-eligible counterpart in common
law. When the superior court accepts jurisdiction of a special action,
but denies relief, we review for an abuse of discretion. Merlina v.
Jejna, 208 Ariz. 1, ¶ 6, 90 P.3d 202, 204 (App. 2004). Whether a
defendant is entitled to a jury trial, however, is a question of law we
review de novo. Urs v. Maricopa Cty. Attorney’s Office, 201 Ariz. 71,
¶ 2, 31 P.3d 845, 846 (App. 2001). An error of law may constitute an
abuse of discretion. State v. Wall, 212 Ariz. 1, ¶ 12, 126 P.3d 148, 150
(2006).

¶4            At the time Amancio was decided, our supreme court
had identified three factors as relevant to determining a defendant’s
right to a jury trial, any one which could independently give rise to
jury eligibility. See Derendal v. Griffith, 209 Ariz. 416, ¶ 5, 104 P.3d
147, 149 (2005) (overruling Rothweiler v. Superior Court, 100 Ariz. 37,
410 P.2d 479 (1966)). The existence of a jury-eligible common law
antecedent was one factor and the seriousness of the offense was
another. Id.

¶5          The defendant in Amancio argued the seriousness of the
offense entitled him to a jury trial and conceded that unlawful
imprisonment did not have a jury-eligible common law antecedent.
196 Ariz. 95, ¶ 7, 993 P.2d at 1060. The court, in its analysis, thus
focused solely on the seriousness of the offense. Id. ¶¶ 7-15.

¶6           The defendant’s concession deprived the court of “the
opportunity to address [the] argument that” unlawful imprisonment
had a jury-eligible common law antecedent, thus waiving the issue
for review. Harris v. Cochise Health Sys., 215 Ariz. 344, ¶ 18, 160 P.3d
223, 229 (App. 2007); see also State v. Bolton, 182 Ariz. 290, 298, 896
P.2d 830, 838 (1995) (insufficient argument on appeal waives claim).
That waiver meant the court was not “fully advised on the
question.” Creach v. Angulo, 186 Ariz. 548, 552, 925 P.2d 689, 693
(App. 1996). Consequently, the court’s statement that “there was . . .
no entitlement to a jury trial under the common law,” Amancio, 196
Ariz. 95, ¶ 16, 993 P.2d at 1062, was dictum, Creach, 186 Ariz. at 552,


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      KANIOWSKY v. PIMA CTY. CONSOL. JUSTICE COURT
                    Opinion of the Court

925 P.2d at 693; see also Town of Chino Valley v. City of Prescott, 131
Ariz. 78, 81, 638 P.2d 1324, 1327 (1981) (court’s statement on question
not necessarily decided in case is dictum). And in any event, based
on the following analysis, we conclude that any statement in
Amancio indicating unlawful imprisonment does not have a common
law antecedent is an incorrect statement of the law.

                False Imprisonment at Common Law

¶7             Kaniowsky argues that unlawful imprisonment
pursuant to A.R.S. § 13-1303 is the modern day analog to the jury-
eligible, common law offense of false imprisonment. Our supreme
court has delineated a “two step process” to determine whether a
defendant is guaranteed a right to a jury trial for a particular offense.
Derendal, 209 Ariz. 416, ¶¶ 36-37, 104 P.3d at 156; see also Ariz. Const.
art. 2, § 23; Ariz. Const. art. 2, § 24. Under the first step, a court must
determine whether the offense “has a common law antecedent that
guaranteed a right to trial by jury at the time of Arizona statehood.”
Derendal, 209 Ariz. 416, ¶ 36, 104 P.3d at 156; see also Ariz. Const. art.
2, § 23. If the charged offense has a common law antecedent for
which a jury trial right existed, the inquiry ends and “the
defendant’s right to a trial by jury is established.” Derendal, 209
Ariz. 416, ¶ 36, 104 P.3d at 156. If this first prong is not satisfied, the
court, under the second prong, “must analyze the seriousness of the
offense under Article 2, Section 24.” Id. ¶ 37.

¶8           The test for determining whether a common law offense
is the antecedent of a modern offense is whether the modern offense
contains “comparable” or “substantially similar” elements to the
common law offense. Id. ¶¶ 10-11; see also Sulavka v. State, 223 Ariz.
208, ¶ 9, 221 P.3d 1022, 1024 (App. 2009). Importantly, the two
offenses do not need to be “identical, or [even] nearly so,” but rather
must share a “fundamental character.” Crowell v. Jejna, 215 Ariz.
534, ¶¶ 16, 22, 161 P.3d 577, 581-83 (App. 2007).

¶9            Unlawful imprisonment is committed by knowingly
“restrict[ing] a person’s movements without consent, without legal
authority, and in a manner which interferes substantially with such
person’s liberty, by either moving such person from one place to
another or by confining such person.” A.R.S. §§ 13-1303(A),


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     KANIOWSKY v. PIMA CTY. CONSOL. JUSTICE COURT
                   Opinion of the Court

13-1301(2). At common law, false imprisonment required “[t]he
detention of the person” and “[t]he unlawfulness of such detention.”
3 William Blackstone, Commentaries *127; 4 Blackstone, Commentaries
*218; see also William C. Robinson, Elementary Law § 219 (1882)
(“False imprisonment is the unlawful detention of the person of
another.”); 19 Cyclopedia of Law and Procedure 376 (William Mack, ed.,
1905) (“The gist of [false imprisonment] is the actual and unlawful
restraint or detention of one person against his will by another.”).

¶10           Unlawful imprisonment and common law false
imprisonment are clearly “substantially similar” offenses, Derendal,
209 Ariz. 416, ¶¶ 10, 39, 104 P.3d at 150, 156, and share the
“fundamental character” of prohibiting the unlawful detention, or
restriction, of another person’s movement, Crowell, 215 Ariz. 534,
¶¶ 16, 22, 161 P.3d at 581-83. We therefore conclude that common
law false imprisonment is the direct antecedent of unlawful
imprisonment pursuant to § 13-1303. See Derendal, 209 Ariz. 416,
¶¶ 10, 39, 104 P.3d at 150, 156.

¶11          The state, however, argues the offenses are not
comparable because false imprisonment at common law was a
misdemeanor, but unlawful imprisonment is a felony “unless the
victim is released voluntarily by the defendant without physical
injury in a safe place before arrest in which case it is a class 1
misdemeanor.” § 13-1303(C). Thus, the state concludes, “the
common law antecedent for our felony was a misdemeanor, while
our misdemeanor is different from the common law antecedent
because it requires additional facts to become a misdemeanor.”

¶12          The state’s argument does not undermine our
conclusion that the fundamental character of unlawful
imprisonment is the same now as at common law. The analysis of
whether the common law offense is the antecedent of the modern
offense, is whether “the modern offense contains elements
comparable to those found in the common law offense.” Derendal,
209 Ariz. 416, ¶ 10, 104 P.3d at 150 (emphasis added). And whether
the victim was safely released is not an element of unlawful
imprisonment, but a mitigating factor the defendant bears the
burden of proving. State v. Eagle, 196 Ariz. 188, ¶¶ 9-11, 994 P.2d


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     KANIOWSKY v. PIMA CTY. CONSOL. JUSTICE COURT
                   Opinion of the Court

395, 397-98 (2000) (mitigating factors affecting classification not
statutory element of crime; safe release of victim not element of
unlawful imprisonment); see also § 13-1303(C). The state has not
cited any authority, nor have we found any, supporting the
proposition that courts must additionally compare the classification
of the modern and common law offense, as well. Because the
statutory elements of unlawful imprisonment are substantially
similar to those of common law false imprisonment, we reject the
state’s argument.

¶13           We next turn to whether common law false
imprisonment was a jury-eligible offense at common law. Derendal,
209 Ariz. 416, ¶ 36, 104 P.3d at 156. Kaniowsky argues that because
false imprisonment was an “indictable” offense at common law, it
required a jury trial. See Urs, 201 Ariz. 71, n.3, 31 P.3d at 847 n.3
(“‘Indictable offenses’ at common law were jury-eligible crimes.”);
see also District of Columbia v. Colts, 282 U.S. 63, 73 (1930). The state,
however, argues that, contrary to Urs and Colts, “indictable” does
not indicate whether an offense was jury-eligible, only that it was
“cognizable as a crime.”

¶14           The state contends that because misdemeanors, such as
false imprisonment, could be indictable at common law, and
misdemeanors were sometimes handled summarily by a judge
without a jury trial, we cannot rely on the fact that false
imprisonment was “indictable” to determine whether it was jury-
eligible. It relies on Felix Frankfurter & Thomas G. Corcoran, Petty
Federal Offenses and The Constitutional Guaranty of Trial by Jury, 39
Harv. L. Rev. 917, 937-68 (1926), which discussed the numerous
offenses at common law that were tried to a court without a jury.

¶15          At one time, all offenses at common law required a jury
trial. Schick v. United States, 195 U.S. 65, 80 (1904) (Harlan, J.,
dissenting); see also Frankfurter & Corcoran, supra, 923-24 (“To the
Englishman of the fourteenth century . . . it had already become an
‘ancient prerogative’ to have twelve laymen stand between him and
the vengeance of the king in a criminal prosecution of any kind,
whether the charge were tippling at the inn or murder.”);
4 Blackstone, Commentaries *280 (common law “is a stranger to”


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     KANIOWSKY v. PIMA CTY. CONSOL. JUSTICE COURT
                   Opinion of the Court

summary proceedings); William H. MacNamara, Paley’s Law and
Practice of Summary Convictions 3-4 (6th ed., 1879). Offenses were
divided into three classes: treason (which was also the only crime in
its class), felonies, and misdemeanors. Robinson, supra, §§ 394-97;
see also 1 William L. Clark & William L. Marshall, A Treatise on the
Law of Crimes 9 (1900). “The common law felonies were murder,
manslaughter, rape, sodomy, robbery, larceny, arson, burglary, and
. . . mayhem.” Clark & Marshall, supra, 12. All other crimes were
misdemeanors. Id. at 17; see also Robinson, supra, § 397.

¶16          Misdemeanors were further classified into two
categories: “(1) Those which were of a heinous nature and which
might therefore be punished corporally, and (2) those which were
not heinous.” State v. Kelly, 15 N.W.2d 554, 564 (Minn. 1944). False
imprisonment fell into the first category, as it was considered a
“heinous public crime.”          3 Blackstone, Commentaries *127;
4 Blackstone, Commentaries *218 (“the law . . . demands public
vengeance for the breach of the king’s peace, for the loss which the
state sustains by the confinement of one of its members, and for the
infringement of the good order of society”). Misdemeanors in the
latter category—those that were not “heinous”—were considered
“petty.” Kelly, 15 N.W.2d at 564; see also State v. Lytle, 51 S.E. 66, 68
(N.C. 1905); 22 The American and English Encyclopaedia of Law 760 n.2
(David S. Garland & Lucius P. McGehee eds., 2nd ed., 1902) (“petit
misdemeanors” were “trivial breaches of the peace” generally
“merit[ing] no higher punishment than three dollars”).

¶17          In the interest of judicial efficiency, English law began
allowing for petty misdemeanors, arising from legislative
enactments, to be handled summarily without an indictment or jury
trial. Schick, 195 U.S. at 80 (Harlan, J. dissenting) (summary
proceedings for petty offenses authorized by “an act of Parliament”
and were exceptions to “rule at common law that all crimes must be
tried by a jury”); see also Duncan v. Louisiana, 391 U.S. 145, 159 (1968)
(“So-called petty offenses were tried without juries both in England
and in the Colonies.”); see also Colts, 282 U.S. at 72-73; Callan v.
Wilson, 127 U.S. 540, 555-57 (1888); Pendleton Howard, The Rise of
Summary Jurisdiction in English Criminal Law Administration,
19 Cal. L. Rev. 486, 487 n.4 (1931); Frankfurter & Corcoran, supra,


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      KANIOWSKY v. PIMA CTY. CONSOL. JUSTICE COURT
                    Opinion of the Court

925-26; 4 Blackstone, Commentaries *281, *310-11; MacNamara, supra,
50 (offenses subject to summary proceedings “must be the subject of
a special law”). Examples of these petty offenses include “common
swearing, drunkenness, vagrancy [and] idleness.” 4 Blackstone,
Commentaries *281; see also Frankfurter & Corcoran, supra, 928-29.
Common law offenses which were indictable, however, continued to
require jury trials. Callan, 127 U.S. at 555-56; see also Colts, 282 U.S. at
73; see also Howard, supra, 487; 4 Blackstone, Commentaries *283
(offenses not subject to summary proceedings “fall . . . under the
general rule, and can only be convicted by indictment”), *350 (if
defendant pled not guilty to indictment, sheriff required to assemble
jury to hear case).

¶18           The state, therefore, is correct that some misdemeanors
at common law were handled summarily without a jury, while other
misdemeanors required a trial by jury. Contrary to the state’s
contention, however, “indictment” is a term of art that is crucial to
understanding the procedures afforded a defendant charged with a
particular offense. Howard, supra, 487 (“Crimes are classified as
non-indictable and indictable, a practical distinction based upon the
mode of trial.”). Non-indictable, or petty, offenses could be heard
without a jury, while indictable offenses required a jury trial.
See Colts, 282 U.S. at 73 (distinguishing between petty offenses
triable without a jury and those “indictable at common law”
requiring jury trial); District of Columbia v. Clawans, 300 U.S. 617,
624-25 (1937) (right to jury trial at common law turned on whether
offense “indictable at common law” or petty offense); Howard,
supra, 487 (distinguishing between “those offenses which can only
be dealt with summarily, and those indictable offenses which
cannot, under any circumstances, be disposed of except before a
judge and jury”); see also Pendleton Howard, Criminal Prosecution in
England. I. Police Prosecutions, 29 Colum. L. Rev. 715, 721 n.13 (1929)
(At common law, non-indictable, petty offenses tried without juries,
while indictable offenses “triable only before juries.”). Because false
imprisonment was a “heinous public crime” requiring an
indictment, a defendant charged with that offense was therefore
entitled to a jury trial. 3 Blackstone, Commentaries *127; 4 Blackstone,
Commentaries *218; see also 7 The American and English Encyclopaedia



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     KANIOWSKY v. PIMA CTY. CONSOL. JUSTICE COURT
                   Opinion of the Court

of Law 785 (David S. Garland & Lucius P. McGehee eds., 2nd ed.,
1899).

¶19            Historical evidence further shows that defendants who
were in fact indicted for false imprisonment in England and its
colonies were afforded a trial by jury. See Old Baily Proceedings,
London Lives 1690-1800, LMSMPS506810176 (June 1778) (noting
jury found defendant guilty of false imprisonment), available at
http://www.londonlives.org/browse.jsp?div=LMSMPS50681PS506
810176; see also R. v. Aga Kurboolie Mahomed, (1843)
1 8 E n g . R e p . 4 5 9 ( Sup. Ct. Calcutta) (same), available at
http://www.commonlii.org/uk/cases/EngR/1843/850.pdf; R. v. Birnie,
(1832) 172 Eng. Rep. 941 (K.B.) (same), available at
http://www.commonlii.org/uk/cases/EngR/1832/448.pdf; R. v.
Osmer, (1804) 102 Eng. Rep. 1086 (K.B.) (same), available at
http://www.commonlii.org/uk/cases/EngR/1804/262.pdf ;
4 Blackstone *362-64 (“if the jury find[s the defendant] guilty, he is
then said to be convicted”; discussing punishment of persons
“convicted” of false imprisonment). More recently, in relative terms,
a defendant in Pennsylvania was granted a jury trial after being
indicted of common law false imprisonment. Commonwealth v.
Brewer, 167 A. 386, 386, 388-89 (Pa. Super. Ct. 1933); see also Smith v.
State, 23 N.W. 879, 880, 883-84 (Wis. 1885) (defendant convicted by
jury of common law false imprisonment and not state’s statutory
false imprisonment).

¶20          Many of the cases and treatises cited in the preceding
paragraphs were decided or published many years before Arizona
became a state in 1912. But we have not found any authority
indicating that the common law requirement of a jury trial had
changed between the time of these cases and treatises and Arizona’s
statehood. Accordingly, we conclude they remain good authority
for the proposition that false imprisonment was jury-eligible at
common law when Arizona became a state. See Derendal, 209 Ariz.
416, ¶ 36, 104 P.3d at 156 (we determine if crime “has a common law
antecedent that guaranteed a right to trial by jury at the time of
Arizona statehood”).

¶21          False imprisonment was an indictable, jury-eligible
offense at common law. See Bosworth v. Anagnost, 234 Ariz. 453,

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     KANIOWSKY v. PIMA CTY. CONSOL. JUSTICE COURT
                   Opinion of the Court

¶¶ 7-8, 323 P.3d 736, 738-39 (App. 2014) (citing three cases from Old
Bailey Courthouse as sufficient evidence shoplifting afforded jury
trial at common law). Consequently, Kaniowsky is entitled to a jury
trial on the five false imprisonment charges as a matter of law.
See Derendal, 209 Ariz. 416, ¶ 36, 104 P.3d at 156. The superior court
therefore abused its discretion in denying Kaniowsky relief in his
special action requesting a jury trial. See Merlina, 208 Ariz. 1, ¶ 6,
90 P.3d at 204; see also Wall, 212 Ariz. 1, ¶ 12, 126 P.3d at 150.

                            Disposition

¶22        For the foregoing reasons, the trial court’s order
denying Kaniowsky’s request for a jury trial is vacated and this case
is remanded for further proceedings consistent with this opinion.




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