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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                 JULIO CESAR GARCIA-SOTO, Petitioner,

                                        v.

   THE HONORABLE MICHAEL R. BLUFF, Judge of the SUPERIOR
         COURT OF THE STATE OF ARIZONA, in and for
           the County of YAVAPAI, Respondent Judge,

        STATE OF ARIZONA ex rel. SHEILA SULLIVAN POLK,
           Yavapai County Attorney, Real Party in Interest.

                             No. 1 CA-SA 17-0152
                              FILED 8-29-2017


  Petition for Special Action from the Superior Court in Yavapai County
                No. V1300CR820080062; V1300CR820080093
                  The Honorable Michael R. Bluff, Judge

             JURISDICTION ACCEPTED; RELIEF DENIED


                                   COUNSEL

Michael Terribile, Treasure VanDruemel, Phoenix
Counsel for Petitioner

Arizona Attorney General’s Office, Tucson
By Marjorie S. Becklund
Counsel for Respondent
Yavapai County Attorney’s Office, Prescott
By Steven A. Young
Counsel for Real Party in Interest




                       MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Samuel A. Thumma joined.


H O W E, Judge:

¶1             Julio Cesar Garcia-Soto seeks special action relief from the
respondent judge’s order denying his notice of peremptory change of judge
under Arizona Rule of Criminal Procedure (“Rule”) 10.2. He argues that the
respondent judge exceeded his jurisdiction by determining more than the
facial timeliness of his notice. Special action jurisdiction is appropriate here
because “a challenge to the denial of a notice of peremptory change of judge
filed pursuant to Rule 10.2 must be brought by special action.” State v.
Ingram, 239 Ariz. 228, 232 ¶ 16 (App. 2016). As such, Garcia-Soto has no
adequate remedy by appeal. See Ariz. R. P. Spec. Act. 1(A). Consequently,
we accept jurisdiction, but for the following reasons, deny relief.

                 FACTS AND PROCEDURAL HISTORY

¶2            In early 2008, Garcia-Soto was indicted in two separate felony
cases: a forgery case and a homicide case. The forgery case was assigned to
deputy public defender Robert Gundacker and the homicide case was
assigned to deputy public defender Chester Lockwood. At that time,
Mr. Gundacker was also assigned as second chair counsel in the homicide
case in the event that the State sought the death penalty. In April 2008, both
cases were assigned to the respondent judge, who presided over status
conferences and pretrial hearings in both cases. During that time, the State
Bar of Arizona filed a complaint against Mr. Lockwood for incidents that
occurred before he started working as a public defender. Mr. Lockwood
continued as assigned counsel and argued on Garcia-Soto’s behalf at
subsequent case management conferences while the State Bar’s
investigation and complaint were pending.

¶3          In June 2008, while the cases remained assigned to the
respondent judge, the State filed its notice to seek the death penalty.


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                 GARCIA-SOTO v. HON. BLUFF/STATE
                        Decision of the Court

Subsequently, Garcia-Soto participated in further pretrial hearings before
the respondent judge. Then, in December 2008, the entire public defender’s
office moved to withdraw as Garcia-Soto’s counsel on both cases because
of a conflict. At the following status conference, the respondent judge
granted the motion to withdraw and also vacated a then-pending trial date.
In February 2009, Garcia-Soto’s cases were reassigned to another judge and
were then reassigned several more times over the next six years.

¶4            In May 2017, the trial court needed to reassign Garcia-Soto’s
cases again after the assigned judge became unavailable. At the
reassignment hearing, the presiding judge noted that only three judges
were available for assignment. Of the three judges available, two had
previously been assigned to Garcia-Soto’s cases, including the respondent
judge. The presiding judge asked the parties whether the respondent judge
had any conflicts or if any notice of change of judge had been filed in 2008
when the cases were previously assigned to the respondent judge. Both
parties acknowledged that no notices had been filed and that they were
unaware of any conflicts. Consequently, the presiding judge assigned the
cases to the respondent judge. Before the hearing ended, Garcia-Soto
informed the presiding judge that he would file a notice of change of judge
pursuant to Rule 10.2. The presiding judge instructed Garcia-Soto to submit
the notice in writing to the respondent judge.

¶5              On May 10, 2017—nine days after the reassignment hearing—
Garcia-Soto filed his notice of change of judge. The State objected and
argued that the notice was untimely and that Garcia-Soto waived his right
to a notice of change of judge under Rule 10.2. Without addressing waiver,
the respondent judge ruled that Garica-Soto’s notice was untimely. In
denying the request, the respondent judge stated that Garcia-Soto’s cases
were first assigned to him in April 2008 and that Garcia-Soto “had a right
to file a Notice of Change of Judge in 2008 and elected not to do so.” According
to the respondent judge, Garcia-Soto’s right to a peremptory change of
judge under Rule 10.2 was not renewed when his cases were reassigned to
the respondent judge. Garcia-Soto then petitioned for special action.
Garcia-Soto requested an interlocutory stay, which we granted.

                               DISCUSSION

¶6            Garcia-Soto contends that the respondent judge exceeded his
jurisdiction by determining more than whether the notice for change of
judge was submitted within ten days as Rule 10.2(c) requires. We need not
determine this issue, however, because Garcia-Soto waived his right to a
peremptory change of judge regarding the respondent judge. We review de


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                  GARCIA-SOTO v. HON. BLUFF/STATE
                         Decision of the Court

novo the trial court’s interpretation of court rules. State v. Manuel, 229 Ariz.
1, 3 ¶ 5 (2011). We will uphold “a trial court’s ruling if the result was legally
correct for any reason.” State v. Carlson, 237 Ariz. 381, 387 ¶ 7 (2015). Garcia-
Soto waived his right to a peremptory change of judge regarding the
respondent judge in 2008, and we therefore deny relief.

¶7            In 2008, when Garcia-Soto was indicted, Rule 10.2
differentiated between death penalty and non-death penalty cases. In
non-death penalty cases, a party was entitled to a change of judge as a
matter of right if the notice was made in good faith and within a certain
timeframe. Ariz. R. Crim. P. 10.2(b)-(c) (2008). In pertinent part, for non-
death penalty cases, the rule permitted a party to file a notice of change of
judge within ten days after “actual notice to the requesting party of the
assignment of the case to a judge.” Ariz. R. Crim. P. 10.2(c)(3) (2008). For
death penalty cases, Rule 10.2 permitted a notice of change of judge if filed
within ten days after the State moved to seek the death penalty. Ariz. R.
Crim. P. 10.2(a) (2008). As such, in 2008, a defendant was entitled to a
change of judge both before and after the State elected to seek the death
penalty. See Campbell v. Barton, 222 Ariz. 414, 416 ¶ 11 (App. 2009).

¶8            Effective January 1, 2011, the Arizona Supreme Court
amended Rule 10.2 to eliminate the distinction between death penalty and
non-death penalty cases. As amended, Rule 10.2 states that in any criminal
case “each side is entitled as a matter of right to a change of judge.” See Ariz.
R. Crim. P. 10.2(a). As relevant here, Rule 10.2(c) remained the same as it
did in 2008, entitling a defendant to a change of judge if the notice is filed
within ten days after “actual notice to the requesting party of the
assignment of the case to a judge.” Ariz. R. Crim. P. 10.2(c)(3). A Rule 10.2
notice of change of judge may only be used once. Hill v. Hall, 194 Ariz. 255,
258 ¶ 10 (App. 1999); see also Woodington v. Browning, 240 Ariz. 288, 290 ¶ 9
(App. 2016) (“[A] defendant is entitled to only one peremptory challenge in
a criminal case.”).

¶9            This right to a peremptory change of judge, however, can be
waived. The waiver rule, Rule 10.4, provides in pertinent part that “[a]
party loses the right under Rule 10.2 to a change of judge when the party
participates 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.” Ariz. R. Crim. P. 10.4(a). This court has defined
“that judge” to mean the judge “assigned” the case and not merely a judge
who hears a contested issue. Medders v. Conlogue, 208 Ariz. 75, 78 ¶ 10 (App.
2004). Further, pretrial hearings need not be contested or substantive
hearings to trigger Rule 10.4, as even case management conferences “fall


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                 GARCIA-SOTO v. HON. BLUFF/STATE
                        Decision of the Court

within the broad ambit of any pretrial hearing.” Higuera v. Lee, 241 Ariz. 76,
81 ¶ 18 (2016).

¶10             Garcia-Soto’s cases were assigned to the respondent judge
while the 2008 version of Rule 10.2 was in effect. As such, he had the right
to a change of judge regarding the respondent judge twice, once before the
State filed its notice to seek the death penalty and once afterwards. But he
waived that right each time by failing to invoke the right through a timely
notice of change of judge. Garcia-Soto was indicted in early 2008 and his
cases were assigned to the respondent judge in April 2008. As a non-death
penalty defendant at the time, Garcia-Soto had ten days from the
assignment of his case to the respondent judge to file a Rule 10.2 notice of
change of judge. By participating in several pretrial hearings before the
respondent judge, Garcia-Soto waived his Rule 10.2 right regarding the
respondent judge. Then, when the State filed its notice of intent to seek the
death penalty in June 2008, Garcia-Soto’s right to a peremptory change of
judge regarding the respondent judge was renewed. He did not file any
notice of change of judge and participated in pretrial hearings before the
respondent judge—thus again waiving his right to a change of the
respondent judge. Garcia-Soto’s failure to file a notice of change of judge
within ten days of the State’s filing its notice to seek the death penalty in
2008 resulted in his waiver of a right to a change of judge under Rule 10.2
as it existed in 2008.

¶11             Although the 2011 amendment to Rule 10.2 restored
Garcia-Soto’s right to a peremptory change of judge by removing the
distinction between death and non-death penalty cases, it did not annul any
of his earlier waivers. Consequently, as of May 2017 (when Garcia-Soto filed
his most recent notice of change of judge), he had already waived his right
to a peremptory change of judge regarding the respondent judge. Rule
10.4(a) is clear. A party loses the right to a change of judge under Rule 10.2
if the party participates before that judge in any pretrial hearing. The
respondent judge was the assigned judge on both of Garcia-Soto’s cases
from April 2008 until February 2009. During that time, Garcia-Soto
participated in pretrial hearings before and after the State filed its notice to
seek the death penalty. Contrary to Garcia-Soto’s argument that the
respondent judge can only determine whether his notice of change of judge
was filed within the ten-day time limit Rule 10.2(c) requires, “[n]othing in
Rule 10 requires a judge to transfer the proceeding to the presiding judge if
a notice is untimely or the right has been waived.” See Higuera, 241 Ariz. at
82 n.7 ¶ 21; see also Medders, 208 Ariz. at 77 ¶ 5 (“Because we are able to
answer the waiver question as a matter of law, it is irrelevant which judge
made the decision, and we need not decide [that] issue.”). Accordingly, as


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                 GARCIA-SOTO v. HON. BLUFF/STATE
                        Decision of the Court

a matter of law, Garcia-Soto waived his right to a peremptory change of the
respondent judge under Rule 10.2.

¶12            Garcia-Soto counters that he did not waive his right to a
peremptory change of judge by participating in pretrial hearings in front of
the respondent judge in 2008. 1 According to Garcia-Soto, a party waives its
right to a Rule 10.2 change of judge when the party participates in a
proceeding following the most recent assignment of the case. And because
he has yet to participate in any proceedings following the May 2017
assignment to the respondent judge, no waiver occurred here. But
Garcia-Soto is incorrect. Rule 10.4 requires only that a party participate in
one of the listed proceedings in front of a judge who was assigned the case
for Rule 10.2 purposes. See Medders, 208 Ariz. at 78 ¶ 10 (“[W]e conclude
that judge in Rule 10.4(a) means the judge who is assigned the case for
purposes of Rule 10.2 at the time of the [applicable 10.4 proceeding].”).
Reading Rule 10.4 as Garcia-Soto suggests contradicts the rule’s purpose to
prohibit a party from changing a judge after receiving information that
could prove useful in a later decision whether to file a Rule 10.2 notice
against the same judge. Id. at 77 ¶ 6. Garcia-Soto participated in several
pretrial hearings during the time his cases were assigned to the respondent
judge, and thus he waived his Rule 10.2 right to a peremptory change of
judge regarding the respondent judge. Therefore, the respondent judge
properly denied Garcia-Soto’s notice of change of judge.




1      Garcia-Soto also counters that any waiver that occurred could not be
imputed to him because of the State Bar’s investigation into Mr. Lockwood
during the ten days after his case was assigned to the respondent judge and
because of the public defender’s office’s withdrawal as counsel. These
arguments, however, are without merit. Although Mr. Lockwood was
under investigation, he remained as counsel throughout the investigation
and attended further pretrial hearings and conferences. Additionally,
Garcia-Soto provides no evidence to suggest that his two appointed
attorneys had a conflict that denied him representation before the public
defender’s office moved to withdraw as counsel.


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                GARCIA-SOTO v. HON. BLUFF/STATE
                       Decision of the Court

                             CONCLUSION

¶13          For the foregoing reasons, although we accept jurisdiction, we
deny relief.




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




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