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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                      STATE OF ARIZONA, Appellant,

                                        v.

                 BRACK CONRAD PRITCHARD, Appellee.

                             No. 1 CA-CR 17-0549
                               FILED 5-29-2018


           Appeal from the Superior Court in Yavapai County
                        No. P1300CR201501499
                            P1300CR201700229
                 The Honorable Tina R. Ainley, Judge

                      REVERSED AND REMANDED


                                   COUNSEL

Yavapai County Attorney's Office, Prescott
By Robert J. Johnson
Counsel for Appellant

Yavapai County Public Defender's Office, Prescott
By Damon A. Rossi
Counsel for Appellee
                          STATE v. PRITCHARD
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.


M O R S E, Judge:

¶1           The State of Arizona (the "State") appeals the superior court's
dismissal with prejudice of two counts of an indictment against Brack
Conrad Pritchard ("Pritchard"). For the reasons discussed below, we
reverse and remand.

                 FACTS AND PROCEDURAL HISTORY

¶2             Pritchard was charged by indictment with arson of an
occupied structure, criminal damage, and possession or use of drug
paraphernalia (methamphetamine) all alleged to have occurred on
November 25, 2015. Approximately four weeks before the scheduled trial
date, the State learned of an investigation performed by an investigator for
an insurance company. The State moved to continue the trial date to obtain
and disclose the report of the insurance investigator or, alternatively, to
dismiss the arson and criminal damage counts without prejudice. On
February 8, 2017, the superior court dismissed without prejudice arson of
an occupied structure (Count 1) and criminal damage (Count 2).1

¶3            On March 24, 2017, Pritchard petitioned this court for special
action relief and argued that the superior court abused its discretion in
dismissing the two Counts without prejudice at the request of the State
because the State sought dismissal solely to avoid the speedy trial deadline.

¶4            On April 25, 2017, this court issued a memorandum decision
on Pritchard's special action and granted relief to Pritchard. This court held
that:

       In dismissing the two counts without prejudice at the State's
       request, the superior court did not determine, as required by
       Arizona Rule of Criminal Procedure 16.6(a), whether the State

1A more-detailed summary of the facts and procedural history of this case
are set forth in our decision in Pritchard v. Ainley, 1 CA-SA 17-0094, 2017 WL
1489691 (App. April 25, 2017) (mem. decision).


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                            Decision of the Court

       was requesting the dismissal to avoid the speedy trial
       provisions of Arizona Rule of Criminal Procedure 8.

¶5            This court vacated the superior court's order dismissing
Counts 1 and 2 and "direct[ed] the court to reconsider dismissal of those
two counts in light of the express language of Rule 16.6(a) and to take
further action consistent with this decision." This court's decision provided
the following instructions for the superior court:

       On reconsideration, if the court finds the State's motion was
       made to avoid the provisions of Rule 8, the motion must be
       denied. State v. Paris–Sheldon, 214 Ariz. 500, 508, ¶ 23, 154 P.3d
       1046, 1054 (App. 2007) (pursuant to Rule 16.6 (a), court "must
       deny the motion to dismiss altogether" if it concludes the State
       is attempting to avoid Rule 8).

Pritchard, 2017 WL 1489691, at *3, ¶ 13.

¶6           This court further instructed that, even if that threshold is
crossed, dismissal should not be with prejudice "absent a finding" that "the
prosecutor has delayed in order to obtain a tactical advantage or harass the
defendant and the defendant has demonstrated resulting prejudice." Id. at
¶ 15 (quoting State v. Huffman, 222 Ariz. 416, 420, ¶ 11 (App. 2009))
(emphasis in original).

¶7           On remand, the superior court held an evidentiary hearing on
the dismissal of the two Counts without prejudice. The superior court
remarked:

       I'm looking at both . . . whether the State dismissed to avoid
       Rule 8, but even if I find perhaps that they didn't, I still have
       to look at whether dismissal should be with or without
       prejudice.

       [T]he purpose of this hearing is for the Court to determine . .
       . first of all, under 16.6([a]), whether a dismissal of the counts
       was appropriate; and then even if it wasn't [sic], to determine
       if the dismissal should be with prejudice, and the Court of
       Appeals outlines what that means from the case law, and so
       any testimony in this hearing should be limited to those
       issues, because that's what we're dealing with . . . .

¶8          The superior court then engaged in a "two-part analysis" and
considered whether the State dismissed the two Counts to avoid Rule 8


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                           STATE v. PRITCHARD
                            Decision of the Court

provisions and whether Pritchard was prejudiced, "even if the State's
dismissal [was] not a violation of Rule 8 . . . ."

¶9              The superior court found, "[u]pon review of the record, and
reconsideration as directed by the Court of Appeals" that "at least part of
the reason for the State to request dismissal was to avoid the provisions of
Rule 8." The superior court reasoned that, when the State requested that
the trial either be continued or to dismiss Counts 1 and 2 without prejudice,
"[t]he prosecutor was obviously concerned" with the speedy trial deadline
and trial date of February 23, 2017. Further, the superior court
acknowledged that "the State legitimately wanted to explore the full extent
of the investigator's findings," but concluded that because "the expert report
would not be available until the day before the trial" the prosecutor "feared"
there was not enough time before the currently scheduled trial. Thus, the
superior court concluded that the motion to dismiss "was made at least in
part to avoid the provisions of Rule 8."

¶10              As to whether the prosecutor had delayed to obtain a tactical
advantage or harass the defendant, the superior court said that it was
"difficult for the Court to say that the only basis for dismissal was to obtain
a tactical advantage but the State was clearly aware that having an expert
on board was beneficial to the strength of their case . . . ." The superior court
further stated that "even if the dismissal was not done for tactical delay, the
most important factor is still whether the defendant suffered actual
prejudice." The court then found sufficient prejudice by virtue of
Pritchard's inability to get concurrent sentences for the drug paraphernalia
conviction if he were convicted of the dismissed counts and because now
"it is too late to gather the necessary information" for the defense expert to
challenge the report of the State's expert. The superior court then dismissed
the two Counts with prejudice, finding that Pritchard "ha[d] shown that he
suffered harm that would actually impair his ability to defend against the
charges of Arson and Criminal Damage."

¶11          The State timely appealed the July 27, 2017 order of dismissal
of the two Counts with prejudice.




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                            STATE v. PRITCHARD
                             Decision of the Court

                                DISCUSSION

    I.     STANDARD OF REVIEW

¶12            We review a trial court's dismissal of a case with prejudice for
an abuse of discretion. State v. Spreitz, 190 Ariz. 129, 136 (1997). Rule 16.42
generally favors dismissal without prejudice. Quigley v. City Court of City of
Tucson, 132 Ariz. 35, 36 (App. 1982). "There can be no dismissal with
prejudice unless the interests of justice require it." State v. Gilbert, 172 Ariz.
402, 404 (App. 1991). A trial court must "actually weigh the factors that bear
on the issue" and make a "reasoned finding that the interests of justice
require the dismissal to be with prejudice." State v. Garcia, 170 Ariz. 245,
248 (App. 1991); Ariz. R. Crim. P. 16.4(d). "While the granting of a motion
to dismiss is within the sound discretion of the trial court . . . when there
has been an abuse of discretion, this court has a duty to reverse." State v.
Sandoval, 175 Ariz. 343, 347 (App. 1993) (citation omitted). A trial court
"abuses its discretion where the record fails to provide substantial support
for its decision or the court commits an error of law in reaching the
decision." Files v. Bernal, 200 Ariz. 64, 65, ¶ 2 (App. 2001). "An abuse of
discretion is discretion manifestly unreasonable, or exercised on untenable
grounds, or for untenable reasons." Torres v. North Am. Van Lines, Inc., 135
Ariz. 35, 40 (App. 1982) (citation and internal quotations omitted).

    II.    THE SUPERIOR COURT ABUSED ITS DISCRETION BY
           DISMISSING THE PROSECUTION OF THE ARSON AND
           CRIMINAL DAMAGE CHARGES WITH PREJUDICE

¶13          The State claims that the superior court abused its discretion
in dismissing the two Counts with prejudice because the superior court's
order does not comport with Rule 16 and the record does not support the
superior court's determination that the interests of justice required the
dismissal with prejudice.

¶14          Under this court's previous ruling in this case, if the superior
court were to find that the prosecutor's motion to dismiss was made to
avoid time limits of Rule 8, and Pritchard demonstrated both that the
prosecutor delayed to harass or gain tactical advantage and Pritchard was
prejudiced by the delay, then dismissal with prejudice could be merited.


2 Effective January 1, 2018, Rule 16.6 was abrogated and replaced with
current Rule 16.4. Although stylistic revisions were made to the text of the
rule, none of those changes are material here. Accordingly, we will cite to
the current Rule 16.4.


                                        5
                            STATE v. PRITCHARD
                             Decision of the Court

Pritchard, 2017 WL 1489691, at *3-4, ¶¶ 13-15; see also Dancing Sunshines
Lounge v. Indus. Comm'n, 149 Ariz. 480, 482 (1986) (noting that on remand
"a memorandum decision constitutes the law of the case as does a full
opinion"). Based upon our review of the record, we agree with the State
and find that the superior court abused its discretion.

              A. The Motion to Dismiss Was Made to Avoid Rule 8

¶15            The superior court concluded that the motion to dismiss was
at least partially motivated by a desire to avoid the time limits of Rule 8.
On this record, we cannot find that the superior court abused its discretion
in finding that the State's motion was made, in part, to avoid Rule 8.

              B. The Motion Was Not Made to Harass or Gain Tactical
                 Advantage

¶16           However, the superior court never found that the motion to
dismiss was made to harass or obtain a tactical advantage. Instead, the
superior court stated that it was "difficult" to say that there was an attempt
to gain a tactical advantage and simply noted that the insurance
investigation would be "beneficial to the strength of [the State's] case . . . ."3
Because the superior court never specifically made a finding, we review de
novo whether the State was attempting to obtain a tactical advantage.

¶17            Pritchard argues that the State was trying to obtain a "tactical
advantage" by trying to find a "way to use this expert and his report despite
trial being less than a month away." Pritchard never argues and neither
does the record show that the State withheld the insurance investigation or
did anything but promptly disclose it after its discovery. To the contrary,
the superior court noted that the State's request to dismiss Counts 1 and 2
without prejudice was "legitimate[]" in light of its need to "explore the full
extent" of the insurance investigation and report, without which the State's
case was undermined.

¶18            While this new evidence may have strengthened the State's
case, this is not a "tactical advantage" that offends the "interests of justice"
contemplated by Rule 16.4(d). Delays occasioned by discovery of new
evidence or additional investigation are not delays for "tactical advantage."
See United States v. Lovasco, 431 U.S. 783, 795 (1977) ("In our view,

3It appears that the superior court may have believed that such a finding
was not necessary if Pritchard suffered sufficient prejudice. As noted
above, this conclusion is inconsistent with the law of this case and with
Huffman, 222 Ariz. at 420, ¶ 11.


                                        6
                           STATE v. PRITCHARD
                            Decision of the Court

investigative delay is fundamentally unlike delay undertaken by the
Government solely 'to gain tactical advantage over the accused,' precisely
because investigative delay is not so one-sided." (internal citation omitted));
State v. Medina, 190 Ariz. 418, 421-22 (App. 1997) ("Arizona courts have
interpreted [United States v. Marion, 404 U.S. 307 (1971)] and Lovasco to
require that a defendant show intentional delay by the prosecution to
obtain a tactical advantage, and actual and substantial prejudice as a result
of the delay." (citations omitted)); see also Texas v. Krizan-Wilson, 354 S.W.3d
808, 820 (Tex. Crim. App. 2011) ("The Supreme Court has drawn a
distinction between prosecutorial delays for investigatory purposes and
delays for the purpose of gaining a tactical advantage over the accused,
emphasizing the need not to penalize prosecutors who delay action for the
purpose of procuring additional evidence."); Graham v. Kentucky, 319
S.W.3d 331, 342 (Ky. 2010) ("New evidence is not a tactical advantage.").

¶19            Pritchard also briefly argues that the State also sought
dismissal to harass him: "One struggles to find otherwise when the facts in
this case clearly demonstrate that Appellant tendered a plea offer, obtained
Mr. Pritchard's verbal acceptance, and then took advantage of that
opportunity to buy more time through dismissing without prejudice."
However, the superior court did not find an intent to harass and, as with
"tactical advantage," seeking additional time to further investigate a case,
without some form of improper conduct by the State, cannot constitute
"harassment" as contemplated by the "interests of justice" prong of Rule
16.4. Cf. Garcia, 170 Ariz. at 248 (noting that "not every attempt to avoid an
impending time limit merits dismissal with prejudice").

¶20            Because the evidence demonstrates that the State's motion to
dismiss was not made to harass or obtain a tactical advantage over
Pritchard, the superior court erred in dismissing the counts with prejudice.
See State v. Paris-Sheldon, 214 Ariz. 500, 508, ¶ 23 (App. 2007) ("Rule 16.6(a)
does not require a trial court to dismiss charges with prejudice if it finds the
purpose of the state's motion is to avoid the provisions of Rule 8.").

              C. Pritchard Has Not Shown Prejudice to Require Dismissal
                 With Prejudice

¶21          Because the State's motion was not made for purposes of
tactical advantage or to harass, dismissal should not have been with
prejudice and we need not address the superior court's findings of
prejudice. However, because issues of prejudice may resurface on remand
we review the superior court's conclusions in that regard.




                                       7
                           STATE v. PRITCHARD
                            Decision of the Court

¶22           The superior court found that Pritchard had been prejudiced
in three ways. First, he would be unable to receive concurrent sentences for
the drug paraphernalia conviction that was not dismissed if he were
subsequently convicted of the dismissed counts. Second, the drug
paraphernalia conviction could increase Pritchard's sentencing exposure
for the dismissed counts. Third, it was too late for a defense expert to gather
information necessary to challenge the insurance investigation.

¶23            Regarding the first two findings of prejudice, the State argues
that Pritchard could have received consecutive sentences regardless of
dismissal and has not lost the opportunity for concurrent sentences, via
credit for almost all of time served, should he be convicted of the dismissed
counts. Pritchard responds that any lost time prejudices him, the currently-
assigned judge has indicated a preference for concurrent sentences for these
counts, and that a future sentencing judge might not be so inclined. We
agree that the loss of potential concurrency or credit for time served would
prejudice Pritchard, but at this phase any prejudice is speculative and
insufficient to merit relief. See State v. Dunlap, 187 Ariz. 441, 451 (App. 1996)
(noting that prejudice must be actual, substantial, and not speculative); see
also State ex rel. DeConcini v. Superior Court, 25 Ariz. App. 173, 175 (1975)
(financial and emotional expense are not relevant to a determination of
prejudice); see also Gilbert, 172 Ariz. at 405 (annoyance, inconvenience, and
continued incarceration of a defendant does not constitute the requisite
showing of prejudice so as to justify dismissal of the prosecution with
prejudice). Further, we note that the State has not alleged the drug
paraphernalia conviction for purposes of enhanced sentencing and, based
on the arguments in its brief, will not seek to use that conviction to enhance
Pritchard's sentence for any conviction resulting from the dismissed counts.

¶24           More importantly, a sentencing judge will be able to fashion
an appropriate sentence to ameliorate any potential sentencing prejudice to
Pritchard, either through mitigation, credit for time served, or concurrency.
See Ariz. Rev. Stat. ("A.R.S.") § 13-712 (credit for time served); A.R.S. § 13-
711 (concurrency); State v. Thurlow, 148 Ariz. 16, 20 (1986) (noting that under
the "catch all" provisions of A.R.S. § 13-701(E)(5) a sentencing judge may
consider factors in mitigation to tailor a sentence to fit the defendant's
"character and circumstances").

¶25          Regarding the third finding of prejudice, the record does not
support a finding that Pritchard was prejudiced by any action of the State.
The State learned of the insurance investigation on January 27, 2017,
promptly informed the superior court and Pritchard of this evidence, and
requested more time to obtain and disclose the insurance investigation


                                       8
                           STATE v. PRITCHARD
                            Decision of the Court

report. The State then moved to dismiss the two counts without prejudice
if the superior court would not continue the trial. Accordingly, even before
the State learned of the new evidence, Pritchard had already suffered the
prejudice of being unable to gather information from the crime scene, and
there is nothing in the record to suggest that the State delayed learning of
the evidence so as to prevent Pritchard from fashioning a defense. The State
was not a "player" in the insurance investigation, the investigation was not
conducted by the State or law enforcement, and the State knew nothing of
it before January 27, 2017.

¶26           While the superior court was critical of the State's late
discovery, the State's actions do not constitute a calculated delay for any
tactical advantage or support an inference of bad faith to undermine
Pritchard's ability to defend the case. See, e.g., State v. Armstrong, 208 Ariz.
345, 353, ¶¶ 34-36 (2004) (finding that while securing witness testimony by
negotiating a "last-minute plea agreement affected Armstrong's trial
strategy, such damage does not of itself signal prosecutorial bad faith");
State v. Broughton, 156 Ariz. 394, 398 (1988) (prejudice not demonstrated by
speculation that witnesses' memories may have diminished or earlier
testing of evidence could have been exculpatory).

¶27             Pritchard also argued that a dismissal without prejudice
would not only violate his Rule 8 procedural right, but also his right to a
speedy trial under the United States and Arizona Constitutions. But
"[n]either the United States nor the Arizona Constitution requires that a trial
be held within a specified time period." Spreitz, 190 Ariz. at 139 (citing U.S.
Const. amend. VI and Ariz. Const. art. 2, § 24). "It is not the purpose of the
speedy trial provision to enable the guilty to go free on technicalities." State
ex rel. Berger v. Superior Court, 111 Ariz. 335, 340 (1974).

¶28             Pritchard further relies on Lovasco, 431 U.S. 783, for the
proposition that the State's post-indictment delay should be considered
tactical, but as noted above, the State requested delay for further
investigation as approved by Lovasco, and not to achieve a tactical
advantage over Pritchard. Accordingly, Pritchard is not entitled to relief
because there is no "deviat[ion] from elementary standards of fair play and
decency," Lovasco, 431 U.S. at 795 (citation and internal quotations omitted),
"even if his defense might have been somewhat prejudiced by the lapse of
time," id. at 796.

¶29          Finally, although Pritchard alleges that the late disclosure
could impede his ability to respond to specific testimony, the superior court
can fashion appropriate remedies if it determines that the State has violated


                                       9
                            STATE v. PRITCHARD
                             Decision of the Court

discovery rules. See, e.g., State v. Martinez-Villareal, 145 Ariz. 441, 448 (1985)
("Imposition of sanctions for nondisclosure pursuant to the discovery rules
is a matter to be resolved in the sound discretion of the trial court and that
decision should not be disturbed absent a clear abuse of discretion."); Reid
v. Reid, 222 Ariz. 204, 206, ¶ 8 (App. 2009) ("The trial court has broad
discretion in ruling on discovery and disclosure matters . . . ."); but see State
v. Smith, 123 Ariz. 243, 252 (1979) ("The trial court, however, should seek to
apply sanctions that affect the evidence at trial and the merits of the case as
little as possible, since the Rules of Criminal Procedure are designed to
implement, and not to impede, the fair and speedy determination of
cases.").

                                CONCLUSION

¶30          For the abovementioned reasons, we reverse and remand for
further proceedings consistent with this decision.




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




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