                               IN THE COURT OF APPEALS
                                   STATE OF ARIZONA
                                     DIVISION TWO


EILEEN C. CRANMER,                              )           2 CA-CV 2002-0005
                                                )           DEPARTMENT B
                          Plaintiff/Appellee,   )
                                                )           OPINION
                     v.                         )
                                                )
THE STATE OF ARIZONA,                           )
                                                )
            Real Party in Interest/Appellant.   )
                                                )


              APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

                                  Cause No. CV2001-00302

                    Honorable Richard L. McAnally, Judge Pro Tempore

                                         REVERSED


Grasso Chilton, P.C.
 By Robert Grasso, Jr.                                                                 Tempe
                                                                       Attorneys for Appellant

Janelle A. McEachern                                                                  Chandler
                                                                         Attorney for Appellee


P E L A N D E R, Judge.


¶1            The State of Arizona appeals from the superior court’ s order gr anting special

action relief to appellee Eileen Cranmer, arguing that the court disregarded Rule 38, Ariz. R.

Crim. P. , 17 A. R.S. , er roneously held an evidentiary hearing, and improperly substituted its

judgment for that of the Apache Junction municipal court. Because we agree that the superior
court incorrectly inter preted Rule 38 and abused its discretion in holding an evidentiary hearing,

we reverse.



                                        BACKGROUND

¶2             The facts pertinent to our r esolution of this appeal are not in dispute. The state

charged Cranmer in municipal court with assault and criminal trespass after she was involved in

an altercation with another woman, V. Pursuant to Rule 38.1, Ariz. R. Crim. P., the state moved

to suspend the case for twelve months so that Cranmer could participate in a deferred prosecution

program. The motion provided, inter alia, that Cranmer “ shall remain a law-abiding citizen.”

Cranmer signed the state’ s motion immediately beneath a statement that she “ agree[d] to

participate in the deferred prosecution and diversion program.” The municipal court granted the

motion.

¶3             Approximately two months later, V., who had obtained an “ Injunction Against

Harassment Order” against Cranmer, reported to police that Cr anmer had been following her and

had made a rude gesture by “ flip[ping] a bird” at her. After reviewing the police report and

witness statements and personally interviewing the witnesses and the officer who had filed the

report, the prosecutor concluded that Cr anmer had breached the deferred prosecution agreement

and moved to resume prosecution of Cr anmer on the assault and criminal trespass charges pur suant

to Rule 38.2, Ariz. R. Cr im. P.

¶4             Cranmer opposed the resumption of the prosecution, claiming that the state had not

established she had breached the deferred pr osecution agreement. She argued that because the

state had not convicted her of any crime, it had failed to show that she had not remained a law-

abiding citizen, as pr ovided in the state’ s original motion to suspend the prosecution. After a

                                                 2
nonevidentiary hearing on the issue, the municipal court granted the state’ s motion to resume the

prosecution, concluding that the state was not required to prove Cranmer had violated the

“ deferred prosecution agreement” in order to resume prosecution under Rule 38.2, unless

Cranmer could show either that the state was acting in an “ arbitrary and/or capricious manner”

or that she had suffered some prejudice as a result of the delay in prosecution. The municipal

court then scheduled a pre-trial conference and set a trial date.

¶5             Cranmer filed a complaint for special action relief in the superior court, arguing

that the municipal court had acted arbitrarily and capriciously and had abused its discretion in

permitting Cranmer’ s prosecution to resume. The superior court order ed an evidentiary hearing,

at which both Cranmer and V. testified, as did the prosecutor who had resumed Cranmer’ s

prosecution and an expert on deferred prosecution programs. Much of the testimony focused on

whether Cranmer had actually followed V. and made a rude gesture at her.

¶6             The superior cour t concluded that before the state may resume a deferred

prosecution under Rule 38.2, the prosecutor must “ present evidence to the Court that the action

to vacate the suspension [of prosecution] [is] reasonable with due factual basis to determine [the

prosecutor’ s] actions [are] reasonable. ” The cour t found the proof of the alleged following/rude

gesture incident to be “ very questionable” and determined that “ there was never any following

of [V.]” by Cranmer.      The court fur ther found that the prosecutor’ s decision to resume

Cranmer’ s prosecution had been “ arbitrar y and capricious and without reasonable support by any

facts or circumstances. ” Accordingly, the court granted special action relief, vacating the

municipal court’ s order and directing that court to reinstate Cranmer to the diversion progr am.

This appeal followed.

                                          DISCUSSION

                                                 3
I. Standard of Review

¶7             “ When a special action proceeding initiated in superior court is appealed to this

court, we must conduct a bifurcated review. ” Bazzanella v. Tucson City Court, 195 Ariz. 372,

¶ 3, 988 P.2d 157, ¶ 3 (App. 1999). We fir st determine whether the superior court accepted

jurisdiction and decided the merits of the claim. Files v. Bernal, 200 Ariz. 64, ¶ 2, 22 P.3d 57,

¶ 2 (App. 2001). Because the court did so here, we then review its decision on the merits to

determine whether it abused its discretion in gr anting or denying relief. And, if “ the superior

court’ s ruling hinged on pure issues of law, we review its legal conclusions de novo.” Norgord

v. State ex rel. Berning, 201 Ar iz. 228, ¶ 4, 33 P.3d 1166, ¶ 4 (App. 2001).

II. Interpretation of Rule 38

¶8             The state first argues that the superior court ignored the plain language of Rule 38. 2

and erroneously imposed a burden upon prosecutors to show that their actions in resuming a

prosecution are not arbitrary or capricious. We review the interpretation of statutes and court

rules de novo. Patterson v. Maricopa County Sheriff’ s Office, 177 Ar iz. 153, 156, 865 P.2d 814,

817 (App. 1993); see also Perguson v. Tamis, 188 Ar iz. 425, 427, 937 P.2d 347, 349 (App. 1996)

(“ Interpretation of the meaning and effect of a court rule is a question of law subject to de novo

review. ”). “ [I]n construing court rules, we apply principles of statutory construction. ” State v.

Baca, 187 Ariz. 61, 63, 926 P.2d 528, 530 (App. 1996). And, “ [o]ur primary objective is to

discern and give effect to the intent of . . . our supr eme court in promulgating [r ules of court]. ”

Vega v. Sullivan, 199 Ariz. 504, ¶ 8, 19 P.3d 645, ¶ 8 (App. 2001). “ [W]e focus on the

language of the . . . rule and, if it is inconclusive or ambiguous, we then consider other factors

such as [its] context, subject matter, effects, consequences, spir it, and purpose. ” Id.

¶9             Rule 38.2, Ariz. R. Cr im. P. , pr ovides in pertinent part:

                                                  4
               a.       If the prosecutor is not satisfied that the defendant has
               fulfilled the conditions of the deferred prosecution program, he or
               she may file a written notice with the superior court that he or she
               desires that the order suspending prosecution be vacated and that
               prosecution of the defendant be resumed. . . .

               b.     Upon filing of the notice to resume prosecution the court
               shall vacate the order suspending prosecution and order that the
               prosecution of the defendant be resumed.

Rule 38.2 is consistent with A.R. S. § 11-365, which grants the county attorney “ sole discretion”

to divert or defer prosecution of a defendant. The plain language of the rule grants the discr etion

to resume prosecution of a defendant solely to the prosecutor. To resume prosecution, the

prosecutor need only file written notice with the court, which then “ shall vacate the order

suspending prosecution. ” Ariz. R. Crim. P. 38.2(b) (emphasis added). The r ule has no further

requirements. Prosecutors need not produce evidence of the reasonableness of their actions, and

courts need not evaluate or rule upon such evidence.

¶ 10           As Cranmer cor rectly points out, however, a prosecutor’ s discretion is not

unlimited, and “ there is such a thing as abuse of discretion. ” But, in general, “ courts have no

power to interfere with the discretion of the prosecutor unless he [or she] is acting illegally or in

excess of his [or her] powers.” State v. Brown, 121 Ar iz. 125, 126, 588 P.2d 867, 868 (App.

1978) (whether to admit defendant into Adult Diversion Program is decision within prosecutor’ s

discretion); see also King v. Neely, 143 Ar iz. 329, 331, 693 P.2d 984, 986 (App. 1984) (within

prosecutor’ s discretion to admit defendant into child molester’ s treatment program); cf. State v.

Donald, 198 Ariz. 406, ¶ 39, 10 P.3d 1193, ¶ 39 (App. 2000) (“ Discretion over plea bargaining

is a core prosecutorial power, but . . . the courts may intervene to reinstate a plea offer that the

State has withdrawn for vindictive reasons. ”).



                                                  5
¶ 11            Moreover, it was for Cranmer to allege and prove an abuse of discretion if she

believed, as she apparently did, that the prosecutor had acted in an arbitrary or capricious manner.

See Woerth v. City of Flagstaff, 167 Ar iz. 412, 419, 800 P.2d 297, 304 (App. 1990) (“ Generally,

the party asserting a claim for relief has the burden of proving the facts essential to his [or her]

claim.” ); Yeazell v. Copins, 98 Ar iz. 109, 116, 402 P.2d 541, 546 (1965); see also Tucson Public

Schools v. Green, 17 Ar iz. App. 91, 93, 495 P.2d 861, 863 (1972) (“ [T]he burden of proving an

abuse of [a state agency’ s] discretion was that of the one claiming such abuse.” ). Thus, by

requiring the state to prove the reasonableness of its actions before resuming prosecution, the

superior court imposed a burden on prosecutors and courts that is not contemplated by Rule 38.2

and is, as noted above, contrary to law.

III. Evidentiary Hearing

¶ 12            The state further argues that the superior court erred by holding an evidentiary

hearing and substituting its own judgment for that of the municipal court, “ abandon[ing] its role

as a reviewing court. ” In a special action proceeding, the superior cour t may consider only:

                (a) Whether the defendant has failed to exercise discretion which
                he has a duty to exercise; or to perform a duty required by law as
                to which he has no discretion; or

                (b) Whether the defendant has proceeded or is threatening to
                proceed without or in excess of jurisdiction or legal authority; or

                (c) Whether a determination was arbitrary and capricious or an
                abuse of discretion.

Ariz. R. P. Special Actions 3, 17B A.R.S. And, although Rule 4(f), Ariz. R. P. Special Actions,

provides that any “ triable issue of fact . . . raised in a[] [special] action . . . shall be tried subject

to special orders concerning discovery, ” a special action proceeding is not a tr ial de novo.



                                                    6
Robertson v. Superior Court, 136 Ar iz. 440, 442, 666 P.2d 540, 542 (App. 1983); Tucson Public

Schools, 17 Ar iz. App. at 93, 495 P.2d at 863.

¶ 13           The municipal court ruled that the state has no obligation under Rule 38 to justify

its actions before resuming prosecution of a defendant. But, as discussed previously, a defendant

may present evidence that the state acted arbitrarily or capriciously by r esuming prosecution.

Accordingly, the municipal court properly assigned to Cranmer the bur den of showing that the

state’ s actions were arbitrary or capricious and gave her the opportunity to make such a showing.

Because she failed to do so, the municipal cour t neither made nor was required to make any

specific findings on whether the prosecutor’ s reinstatement of Cranmer’ s prosecution was either

reasonable or arbitrary and capricious. 1

¶ 14           In her subsequent complaint for special action relief, Cranmer alleged that the

municipal court had acted arbitrarily and capriciously and had abused its discretion in allowing

the state to resume the prosecution pursuant to Rule 38. 2. Therefore, the superior court’ s only

function was to apply those special action standards in reviewing the municipal court’ s order.

Ariz. R. P. Special Actions 3(c). Thus, the superior cour t exceeded its authority by holding an

evidentiary hearing on an issue—reasonableness of the prosecutor’ s actions— was irrelevant
                                                                            that

to the only question properly before it—whether the municipal court had abused its discretion or

acted arbitrarily or capriciously in per mitting the prosecution to resume.

¶ 15           Issues concerning whether Cranmer actually had followed V. and made a rude

gesture, or whether such a gesture can constitute a crime, were not relevant to the legal question

before the superior court. The court therefore erred by exploring the under lying incident and


       1
         Accordingly, we do not address the issue briefed and argued by the parties as to whether
the state’ s resumption of Cranmer’ s prosecution was in fact arbitrary or capricious.

                                                  7
focusing on the prosecutor and the reasonableness of the prosecutor’ s actions, par ticularly when,

as the court acknowledged, “ factual information” bear ing on those issues was “ never presented”

to the municipal court. By conducting what amounted to a trial de novo on the underlying facts

of the following/rude gesture incident, and then concluding that the prosecutor’ s actions were

“ arbitrary and capricious and without reasonable support by any facts or circumstances, ” the

superior cour t exceeded the scope of the special action proceeding. Ariz. R. P. Special Actions

3; Robertson, 136 Ar iz. at 442, 666 P.2d at 542.

                                         CONCLUSION

¶ 16           For the foregoing reasons, the superior court abused its discretion in gr anting

special action relief. See Files, 200 Ar iz. 64, ¶ 2, 22 P.3d 57, ¶ 2 (“ Generally, a court abuses

its discretion where . . . the court commits an error of law in reaching the decision. ”).

Accordingly, we reverse the superior court’ s order and r emand the case for further proceedings

consistent with this decision.



                                                 _______________________________________
                                                 JOHN PELANDER, Judge

CONCURRING:



_______________________________________
PHILIP G. ESPINOSA, Chief Judge



_______________________________________
WILLIAM E. DRUKE, Presiding Judge




                                                 8
