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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                        v.

              THE HONORABLE PHEMONIA MILLER,
Commissioner of the SUPERIOR COURT OF THE STATE OF ARIZONA,
   in and for the County of MARICOPA, Respondent Commissioner,

          CHARLES EDWARD MARTIN, Real Party in Interest.

                             No. 1 CA-SA 15-0226
                               FILED 9-15-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-155798-001
           The Honorable Phemonia Miller, Judge Pro Tempore

           JURISDICTION ACCEPTED; RELIEF GRANTED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Catherine Leische
Counsel for Petitioner
                    STATE v. HON. MILLER/MARTIN
                          Decision of the Court



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


W I N T H R O P, Judge:

¶1            In this special action, the State of Arizona seeks reversal of the
trial court’s order granting Defendant/Real Party in Interest, Charles
Edward Martin (“Martin”), release on bail. For the following reasons, we
accept jurisdiction and grant relief.

                 FACTS AND PROCEDURAL HISTORY

¶2            On August 20, 2014, Martin was released on his own
recognizance, pending trial on a class 4 felony of aggravated assault. 1 He
was later charged in the present case with failure to register as a sex
offender, a class 4 felony. At the initial appearance of the present case, the
court found Martin nonbailable. While the present case was pending,
however, the case on aggravated assault was dismissed without prejudice.
After the dismissal, Martin requested a hearing on his release status in this
case. See Simpson v. Owens, 207 Ariz. 261, 85 P.3d 478 (App. 2004).

¶3              During the Simpson hearing, the State argued that, pursuant
to Article 2, Section 22, of the Arizona Constitution, Martin was not
bondable because the proof was evident or the presumption great that
Martin had committed the current charged felony while admitted to bail on
a separate felony charge. The State contended that the fact of the prior
charged offense and the timing of the present offense was a matter of court
record, and it was not required to further affirmatively show that Martin
was on release when committing the present offense. In the alternative, the
State asked the court to confirm in its records that Martin was on release
status at the time the present offense was committed. Apparently, the court
did not check the record and instead found that, although the State had met
its burden of showing Martin had committed the present offense, it had not




1      Martin’s release condition was initially set as release on bond but
later modified to release on his own recognizance.


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                    STATE v. HON. MILLER/MARTIN
                          Decision of the Court

met its burden of showing Martin was on release when committing the
present offense. As a result, the court held Martin was bondable.

¶4            The State then filed a motion to reconsider, asking the court
to take judicial notice of the fact that Martin was on release status at the
time he committed the present offense. Martin did not file a response to the
motion. During a subsequent bond hearing, the State offered the court
certified copies of the minute entry showing Martin had been on release
status; however, the court declined to consider the State’s pending motion
to reconsider until Martin submitted a written response. The court then set
a bond in the present case.

¶5             This petition for special action followed. In its petition, the
State argues that it was not required to affirmatively show Martin was on
release, and contends the trial court should have simply consulted the court
records during the Simpson hearing or, in the alternative, accepted the
certified copies of those records offered during the bond hearing. The State
asks this court to reverse the trial court’s grant of bail. Martin has not filed
any response to the petition.

                              JURISDICTION

¶6            We accept jurisdiction because the State does not have an
equally plain, speedy, or adequate remedy by appeal. Ariz. R.P. Spec. Act.
1(a).2

                                 ANALYSIS

¶7            Under the Arizona Constitution, “[a]ll persons charged with
crime shall be bailable . . . except [f]or felony offenses committed when the
person charged is already admitted to bail on a separate felony charge and
where the proof is evident or the presumption great as to the present
charge.”3 Ariz. Const. art. 2, § 22(A)(2). This type of regulation of a
defendant’s rights to bail has been upheld as constitutional. United States v.
Salerno, 481 U.S. 739, 752, 755 (1987). This court has enforced the
constitutional provision even where, as here, the charges in the first case are

2     We cite the current version of the applicable statute unless revisions
material to this decision have occurred since the events in question.

3      Although the term “admitted to bail” is used in the constitutional
provision, this exception to bail applies equally to individuals, like Martin,
who have been released on their own recognizance. Heath v. Kiger, 217 Ariz.
492, 493, ¶ 1, 176 P.3d 690, 691 (2008).


                                       3
                    STATE v. HON. MILLER/MARTIN
                          Decision of the Court

dismissed while the second criminal case is pending. See State ex rel. Corbin
v. Buchanan, 131 Ariz. 416, 417, 641 P.2d 904, 905 (App. 1982). Dismissal of
the first case does not eliminate the fact a second offense was committed
while the defendant was on release status from an earlier felony charge. Id.
The inquiry stays the same: Whether the proof is evident or the
presumption great that the defendant committed the current offense, and
whether the offense was committed while the defendant was on release
status from the first charged felony offense. Id. If such proof is presented,
the charged second offense serves as a disqualification for being admitted
to bail or other release status.

¶8             The State bears the burden of proving both prongs of this
exception to bail. See Simpson, 207 Ariz. at 270, ¶ 27, 85 P.3d at 487. That is,
contrary to the State’s assertion, it is required to affirmatively show Martin
was on release when the present charge was committed. The State argued,
essentially, that the trial court could, after allowing Martin to be heard on
the issue, take judicial notice of Martin’s release status by simply referring
to existing court records. See Ariz. R. Evid. 201(b)(2) (stating the court may
judicially notice a fact that is not subject to reasonable dispute because it
“can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned”). This may be true; however, the State
could have better assisted the court by having that record in hand for the
court’s review at the Simpson hearing. See Ariz. R. Evid. 201(c)(2) (stating
the court “must take judicial notice if a party requests it and the court is
supplied with the necessary information”). When that record was offered
to the trial court at the subsequent bond hearing, the court should have
either accepted it then, or deferred its ruling on the bond request until the
defendant could submit his written response to the State’s pending motion
for reconsideration. In any event, Martin is not bondable, and the trial court
erred in granting release status.

                               CONCLUSION

¶9             For the foregoing reasons, we accept jurisdiction and grant
relief. The trial court’s grant of bail is reversed.




                                    :ama

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