                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                              JESSE MESA,
                               Petitioner,

                                    v.

HON. WARREN J. GRANVILLE, JUDGE OF THE SUPERIOR COURT OF THE STATE
        OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
                         Respondent Judge,

                          STATE OF ARIZONA,
                          Real Party in Interest.

                          No. CR-16-0053-PR
                        Filed December 21, 2016

       Special Action from the Superior Court in Maricopa County
                The Honorable Warren J. Granville, Judge
                          No. CR2015-001779
                              AFFIRMED

              Order of the Court of Appeals, Division One
                            Filed Jan. 6, 2016

COUNSEL:

Eric W. Kessler (argued), Sandra Hamilton, Mesa, Attorneys for Jesse Mesa

William G. Montgomery, Maricopa County Attorney, Karen Kemper
(argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona

Maricopa County Public Defender’s Office, Amy       Kalman (argued), Mikel
Steinfeld, Deputy Public Defenders, Phoenix,         and Amy P. Knight,
Kuykendall & Associates, Tucson, Attorneys for      Amici Curiae Maricopa
County Public Defender’s Office and Arizona         Attorneys for Criminal
Justice

Natman Schaye, Arizona Capital Representation Project, Tucson, Attorneys
for Amicus Curiae Arizona Capital Representation Project
                      MESA V. GRANVILLE (STATE)
                         Opinion of the Court

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER and
BOLICK joined.

CHIEF JUSTICE BALES, opinion of the Court:

¶1            Under Arizona Rule of Criminal Procedure 15.1(i)(1), the
state, within sixty days of arraignment, “shall provide to the defendant
notice of whether [it] intends to seek the death penalty.” Here, the State did
not file such a notice after Jesse Mesa was arraigned; instead, after
discovering new evidence, it obtained a second indictment adding two
charges, dismissed the first case, and filed a death notice in the second case.
We hold that when the state complies with Rule 16.6 in dismissing a
prosecution and obtains a new indictment, the time limits for filing a notice
under Rule 15.1(i)(1) start anew, absent bad faith by the state or prejudice
to the defendant. We further hold that the untimely filing of a death notice
does not itself invalidate the notice but may result in sanctions, including
an order striking the notice, under Rule 15.7.

                                      I.

¶2            A grand jury indicted Mesa in May 2014 for first degree
murder and other charges (the “2014 charges”) related to the shooting of a
clerk in a Phoenix smoke shop. Mesa was arraigned the same month. The
State did not file a notice of intent to seek the death penalty, and trial was
set for June 2015.

¶3             Lorenzo Garcia was also indicted in May 2014 for charges
related to the same crime. In October 2014, Garcia engaged in a “free talk”
and told prosecutors that he and Mesa had discussed robbing the smoke
shop at gunpoint. Garcia said that a girl named Erica “Vibe” Vasquez had
waited outside as a “lookout.” Garcia also stated that Mesa had shot the
clerk in the face and that Mesa later laughed while telling others the clerk
had talked about his children before he was killed.

¶4            After the free talk, the State investigated the reliability of
Garcia’s information, including conducting a polygraph test on Garcia in
December 2014. Garcia eventually entered into a plea agreement. In a
March 2015 interview, Vasquez told investigators that Mesa had said he
had shot the clerk in the head. She also said that Mesa bragged about the

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                       MESA V. GRANVILLE (STATE)
                          Opinion of the Court

shooting and recounted the clerk mentioning his children while begging
Mesa not to shoot him.

¶5            Based on the information obtained from Garcia and Vasquez,
the State obtained a new indictment of Mesa in April 2015. The new
indictment alleged the same charges as the first indictment but added
charges of first degree burglary and conspiracy to commit first degree
murder (the “2015 charges”). Mesa was arraigned in May 2015. After the
arraignment, the State dismissed the 2014 charges without prejudice.

¶6             The parties stipulated to extend the time for the State to file a
death notice for the 2015 charges, but Mesa reserved an objection to the
State’s failure to file a notice for the 2014 charges. In September 2015, the
State filed a notice of intent within the stipulated deadline, and the trial
court set the trial for August 2017.

¶7            Mesa moved to strike the State’s notice of intent, arguing that
it was invalid because the State had not timely filed a notice after he was
arraigned for the 2014 charges. Denying the motion, the trial court ruled
that the new indictment restarted the time limit under Rule 15.1(i)(1). Mesa
sought special action relief in the court of appeals, which declined
jurisdiction. We granted review to address recurring legal issues of
statewide importance.
                                    II.

¶8             Rule 15.1 addresses disclosure by the state in criminal cases,
and subsection (i) mandates “Additional Disclosure in a Capital Case.”
Rule 15.1(i)(1) provides:

       The prosecutor, no later than 60 days after the arraignment in
       superior court, shall provide to the defendant notice of
       whether the prosecutor intends to seek the death penalty.
       This period may be extended up to 60 days upon written
       stipulation of counsel filed with the court. Once the
       stipulation is approved by the court, the case shall be
       considered a capital case for all administrative purposes
       including, but not limited to, scheduling, appointment of
       counsel under Rule 6.8, and assignment of a mitigation
       specialist. Additional extensions may be granted upon
       stipulation of the parties and approval of the court. The

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                       MESA V. GRANVILLE (STATE)
                          Opinion of the Court

       prosecutor shall confer with the victim prior to agreeing to an
       extension of the 60 day deadline or any additional extensions,
       if the victim has requested notice pursuant to A.R.S. Section
       13-4405.

¶9             This case also involves Rule 16.6, which governs dismissals of
a prosecution. A court may dismiss a case upon the prosecutor’s motion as
long as it is not filed to avoid the provisions of Rule 8, which concern a
defendant’s right to a speedy trial. Ariz. R. Crim. P. 16.6(a). Such a
dismissal is “without prejudice to commencement of another prosecution”
unless the court finds that the “interests of justice” require otherwise. Ariz.
R. Crim. P. 16.6(d). Here, consistent with Rule 16.6, the trial court dismissed
the 2014 charges without prejudice.

¶10           Mesa argues that Rule 15.1(i)(1) imposes a “jurisdictional”
deadline for the filing of the state’s notice of intent to seek the death penalty.
Once a defendant is arraigned on charges of first degree murder and the
deadline passes, Mesa contends, the state is barred from seeking a death
sentence for that murder, even if, as occurred here, the state commences a
new prosecution. These arguments, however, run counter to both the
language of Rule 15.1(i)(1) and our general approach to determining time
deadlines when a new prosecution follows a dismissal without prejudice.

¶11            When a case is dismissed without prejudice, the state’s filing
of a new indictment generally begins a separate matter. See Godoy v.
Hantman, 205 Ariz. 104, 105 ¶ 1, 106 ¶ 8, 67 P.3d 700, 701–02 (2003); State v.
Rose, 121 Ariz. 131, 137, 589 P.2d 5, 11 (1978). Time limits under the rules
begin anew for the separate matter “absent a showing of bad faith on the
part of the prosecution or prejudice to the accused.” Rose, 121 Ariz. at 137,
589 P.2d at 11 (restarting speedy trial time limits); see also Godoy, 205 Ariz.
at 106 ¶ 7, 67 P.3d at 702 (restarting change-of-judge time limits). Relying
on Godoy, the trial court here concluded that the deadline for filing a death
notice restarted when Mesa was arraigned on the 2015 charges.

¶12           If the general rule reflected by Godoy and Rose applies, the
State timely filed its notice in September 2015. Mesa argues that the State
acted in bad faith because it sought a new indictment and dismissed the
2014 charges in order to circumvent the Rule 15.1(i)(1) deadline. The
record, however, reflects that the State sought a new indictment and filed
its notice in 2015 after learning additional information that significantly

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                       MESA V. GRANVILLE (STATE)
                          Opinion of the Court

changed Mesa’s alleged role in the murder. These actions do not reflect bad
faith. Cf. Rose, 121 Ariz. at 137, 589 P.2d at 11 (noting record did not reveal
bad faith in holding that speedy trial time limits began anew upon refiling
after dismissal).

¶13             Mesa also argues that he was prejudiced by restarting the
deadline. Citing Holmberg v. De Leon, 189 Ariz. 109, 938 P.2d 1110 (1997),
Mesa argues that the passage of time between his arraignment for the 2014
charges and the State’s filing a death notice based on the 2015 indictment in
itself constituted prejudice, because for most of that time he did not have a
capital defense team in place. We do not read Holmberg to hold that the
passage of time alone establishes prejudice. Instead, in finding actual
prejudice to the defendant and the administration of justice, Holmberg noted
that the state failed to file notice until a few weeks before the scheduled trial
date, some fifteen months after the defendant had been arraigned and after
the parties had engaged in extensive discovery with no mention of the
death penalty. Id. at 112, 938 P.2d at 1113. Rather than hold that the passage
of time alone established prejudice, this Court noted that the defendant had
been handicapped in preparing his defense and the state had recognized at
the time of indictment that the case involved a potential capital offense. Id.

¶14            We reject Mesa’s argument that the passage of time between
his initial arraignment and the State’s filing its notice establishes
“prejudice” that would preclude restarting the Rule 15.1(i)(1) time periods.
Although he is correct that a capital defense team was not assembled until
after the 2015 indictment, he has not specifically identified how he was
prejudiced by the delay in terms of preparing his defense. And unlike the
defendant in Holmberg, Mesa received the State’s notice almost two years
before the 2017 trial date. Finally, although resetting the deadline may
expose Mesa to a death sentence, that result is not the sort of prejudice that
would preclude treating a successive prosecution as a separate matter with
its own time deadlines. See, e.g., Rose, 121 Ariz. at 137, 589 P.2d at 11
(finding no prejudice while recognizing charges could effectively be barred
if speedy trial deadlines did not begin anew upon refiling).

¶15           Mesa also argues that the rule reflected by Godoy and Rose
should not apply because Rule 15.1(i)(1) speaks in mandatory terms: “no
later than 60 days after the arraignment in superior court, [the state] shall
provide to the defendant notice of whether [it] intends to seek the death
penalty.” A notice filed outside this deadline (or an extended deadline as

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                       MESA V. GRANVILLE (STATE)
                          Opinion of the Court

ordered by the court), Mesa maintains, is invalid if it relates to the murder
for which the defendant was previously arraigned.

¶16            We reject the argument that a late filing in itself invalidates a
Rule 15.1(i)(1) notice. The rule does not expressly address the consequences
of a late filing. Rule 15.7, however, generally authorizes sanctions for a
party’s failure to make “a disclosure required by Rule 15.” Ariz. R. Crim.
P. 15.7(a). Because the notice required under Rule 15.1(i)(1) is among the
disclosures required by Rule 15.1, an untimely notice could result in
sanctions under Rule 15.7(a). Under the latter rule, the trial court shall
impose appropriate sanctions, “unless the court finds that the failure to
comply was harmless or that the information could not have been disclosed
earlier even with due diligence and the information was disclosed
immediately upon its discovery.” Id. Read together, Rules 15.1(i)(1) and
15.7 do not invalidate an untimely notice of intent to seek the death penalty,
but instead may support sanctions, including an order striking the notice.
See Ariz. R. Crim. P. 15.7(a)(6) (authorizing “[a]ny other appropriate
sanction”).

¶17             Our conclusion comports with prior decisions, although we
recognize that Rule 15.1(i)(1) has been amended since those cases were
decided. See State v. Lee, 185 Ariz. 549, 555–56, 917 P.2d 692, 698–99 (1996)
(noting trial court’s discretion under Rule 15.7 in holding trial court did not
err in allowing state to file a notice of intent after the deadline). In State v.
Jackson, 186 Ariz. 20, 24, 918 P.2d 1038, 1042 (1996), we held that the trial
court did not err by allowing the state to file its death notice one day after
the deadline when the defendant knew of the state’s intent a week earlier
and had time to prepare for trial. Jackson expressly rejected the argument
that Rule 15.1 “acts as a statute of limitations, and therefore the state’s
failure to strictly comply with the rule divested the trial court of jurisdiction
over the capital case.” Id.; see also Barrs v. Wilkinson, 186 Ariz. 514, 516, 924
P.2d 1033, 1035 (1996) (following Jackson and noting death penalty may be
precluded when “the state’s violation is particularly egregious or the
defendant will clearly suffer harm”). But when a notice was filed more than
a year after the deadline, thereby prejudicing the defendant and the
administration of justice, we held that the trial court had to strike the notice.
Holmberg, 189 Ariz. at 112–13, 938 P.2d at 1113–14. In so ruling, Holmberg
distinguished situations in which the state “discover[s] aggravating
circumstances during trial preparation.” Id.


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                      MESA V. GRANVILLE (STATE)
                         Opinion of the Court

¶18           Mesa argues that rule amendments in 2003 implicitly rejected
cases such as Lee, Jackson, and Holmberg. Before those amendments, the rule
regarding disclosure in capital cases specifically authorized Rule 15.7
sanctions if the prosecution failed to make required disclosures. Ariz. R.
Crim. P. 15.1(g)(5) (2003). The 2003 amendments eliminated this reference,
but this change does not reflect any intent to alter prior case law and to
make the timely filing of a notice of intent a jurisdictional requirement.
Instead, the 2003 amendments deleted references to Rule 15.7 in particular
rules - such as then-existing Rule 15.1(g)(5) and Rule 15.2(g)(3) (governing
a defendant’s disclosure) - and added the current, general language in Rule
15.7, which applies to all subsections of Rule 15 and states that “[i]f a party
fails to make a disclosure required by Rule 15 any other party may move to
compel disclosure and for appropriate sanctions.” See Order Amending
Rules 8.4, 8.5, and 15, Rules of Criminal Procedure, and the Comment to
Rule 5.3, Rules of Criminal Procedure, R-00-0003 (Oct. 16, 2003).

¶19            Mesa also notes that Rule 15.1(i)(1) was amended in 2009 to
change the requirements for extending the deadline for filing a notice of
intent. See Order Amending Rule 15.1(i)(1), Rules of Criminal Procedure,
and Adding a Comment Thereto, R-07-0019 (Sept. 16, 2008). Under former
Rule 15.1(i)(1), the prosecutor could extend the notice period for thirty days
upon stipulation of counsel. Ariz. R. Crim. P. 15.1(i)(1) (2008). “Additional
extensions” were granted upon motion of the state and approval of the
court. Id. Under current Rule 15.1(i)(1), the prosecutor can extend the
notice period for sixty days upon written stipulation filed with the court.
Ariz. R. Crim. P. 15.1(i)(1) (2016). Additional extensions are now “granted
upon stipulation of the parties and approval of the court.” Id. Mesa reasons
that because the current rule provides that extensions of the deadline will
be granted “upon stipulation of the parties,” any filing beyond the deadline
is invalid without the defendant’s consent.

¶20            The Court amended Rule 15.1(i)(1) based on the
recommendations of the Capital Case Task Force (“Task Force”). Petition
to Amend Rule 15.1, Arizona Rules of Criminal Procedure, R-07-0019 (Nov.
21, 2007). The Task Force recommended the change so that a stipulated
sixty-day extension of the deadline would result in the case being
considered a capital case for administrative purposes before the state
actually filed a notice. Id. at 2. This would allow the immediate assignment
of resources to the case, permitting defense attorneys and investigators to
begin identifying mitigation evidence and to urge the state not to seek the

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                       MESA V. GRANVILLE (STATE)
                          Opinion of the Court

death penalty, which would conserve judicial and capital defender
resources and resolve capital cases efficiently and effectively. Id. Thus, the
amendment sought to forestall the possibly unnecessary filing of a notice
by the state. Nowhere in the rule petition was there any suggestion that the
amendment was meant to fundamentally change prior practice and to make
a timely filing of the notice a jurisdictional prerequisite for seeking the
death penalty. Interpreting the amendment this way would not further its
stated purpose of reducing rather than increasing the number of cases in
which notices are filed.

¶21            Finally, Mesa asserts that the State’s filing a notice of intent to
seek the death penalty with respect to his 2015 charges violates his rights to
due process under the Federal or Arizona Constitutions. Insofar as Mesa is
arguing that the delay between his arraignment on the 2014 charges and the
notice with respect to the 2015 charges was in itself prejudicial, we reject
this contention. Rule 15.1(i)(1), for reasons we have noted, did not shield
Mesa from being subjected to the death penalty for the smoke shop murder
merely because the state did not provide a timely notice with respect to the
2014 charges. We accordingly reject Mesa’s constitutional arguments for
striking the State’s notice. Cf. Lee, 185 Ariz. at 556, 917 P.2d at 699 (rejecting
argument that untimely notice violated due process).

¶22           In sum, we hold that the time limits for filing a notice under
Rule 15.1(i)(1) restart when the state complies with Rule 16.6 in dismissing
a prosecution and obtaining a new indictment, absent bad faith by the state
or prejudice to the defendant. We further hold that the untimely filing of a
death notice does not itself invalidate the notice but may result in sanctions,
including an order striking the notice under Rule 15.7.

                                       III.

¶23            We affirm the trial court’s denial of the motion to strike the
State’s notice of intent to seek the death penalty, and we remand to the trial
court for further proceedings consistent with this opinion.




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