                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                   VINCENT MENDOZA, Appellant.

                         No. 1 CA-CR 18‑0512
                           FILED 11-21-2019


          Appeal from the Superior Court in Maricopa County
                       No. 2017-002264-001 DT

        The Honorable Annielaurie Van Wie, Judge Pro Tempore

               VACATED IN PART AND REMANDED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant



                              OPINION

Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in
which Judge Randall M. Howe and Judge Jennifer B. Campbell joined.
                           STATE v. MENDOZA
                            Opinion of the Court

M c M U R D I E, Judge:

¶1            Vincent Mendoza appeals his conviction and sentence for one
count of aggravated driving or actual physical control of a vehicle while
under the influence of intoxicating liquor or drugs, a class 4 felony. We
hold: (1) a superior court judge who, in violation of Arizona Rule of
Criminal Procedure (“Rule”) 17.4(a)(2), participates in settlement
discussions between a defendant and the State without the parties’ consent,
errs by thereafter presiding over that defendant’s trial and sentencing;
(2) such error is fundamental if the totality of the circumstances raises a
presumption of judicial vindictiveness; and (3) if the presumption is
unrebutted by the State, it requires the defendant to be either resentenced
or retried before a different judge. Because we find an unrebutted
presumption of judicial vindictiveness exists regarding Mendoza’s
sentence, we affirm his conviction but vacate his sentence and remand for
resentencing before a different superior court judge.

             FACTS AND PROCEDURAL BACKGROUND 1

¶2             On a night in October 2016, Officer Jaime Cole, a patrol officer
with the Goodyear Police Department, noticed Mendoza’s vehicle traveling
northbound at speed slower than the posted speed limit. Cole decided to
follow the car and soon saw that Mendoza was having trouble staying in
his lane. Mendoza nearly struck a curb while executing a lane change and
crossed over a solid white fog line. Based on these observations, Cole
initiated a traffic stop. Mendoza was seated in the driver’s seat. As Cole
spoke with Mendoza, she noticed Mendoza’s eyes were red, bloodshot, and
watery; he had difficulty multi-tasking; and the odor of alcohol was coming
from inside the vehicle. Mendoza admitted to Cole that he drank six beers
that night and had an ignition interlock device installed in the vehicle “to
prevent this,” and added that a friend had blown into the machine to allow
him to drive the car. Eventually, Cole arrested Mendoza for driving under
the influence.

¶3            At the police station, Mendoza underwent blood and breath
testing. The blood testing returned a blood alcohol concentration of 0.128.
The breath testing returned results of 0.119 and 0.117. After the screening,



1      We view the facts in the light most favorable to upholding the verdict
and resolve all reasonable inferences against Mendoza. State v. Harm, 236
Ariz. 402, 404, ¶ 2, n.2 (App. 2015).



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                             Opinion of the Court

Mendoza waived his Miranda 2 rights, and Officer Cole interviewed him.
During the interview, Mendoza again admitted drinking at least six beers
earlier that night but denied that he felt the effects of the alcohol or that he
was impaired to the slightest degree.

¶4             The State charged Mendoza with one count of driving or
actual physical control while under the influence of intoxicating liquor and
under a court order to equip a certified ignition interlock device (“Count
1”) and one count of driving or actual physical control while he had an
alcohol concentration of 0.08 or more in his body within two hours of the
time of driving and while under a court order to equip a certified ignition
interlock device (“Count 2”), both class 4 felonies. In March 2018, during a
status conference before the assigned trial judge, the parties indicated to the
court that the State had offered a plea agreement with that day as the
deadline for Mendoza to accept or reject it. Mendoza’s counsel stated that
Mendoza “wanted to discuss the case with the Court.” The court agreed
and proceeded to inform Mendoza of the charges, their elements, and that
the plea offer was for nine years’ imprisonment.

¶5             Upon further questioning, the State asserted that because
Mendoza had two prior historical felony convictions for aggravated driving
under the influence and aggravated assault involving a vehicle, he would
be sentenced as a category three repetitive offender if convicted, Ariz. Rev.
Stat. (“A.R.S.”) § 13-703(C), and that under A.R.S. § 13-703(J), he would face
a sentencing range of 6 to 15 years. The court then made the following
statements to Mendoza:

              Okay. So, Mr. Mendoza, after trial you would face 6 to
       15. That six is completely, 100 percent unreasonable. There is
       not a judge here that will give you six, period. The fact that
       you’ve already done seven and a half on a vehicular
       aggravated assault . . . means someone’s going to give you
       more. Okay? And seven and a half on a vehicular aggravated
       assault and then coming back with essentially what looks like
       a third felony DUI type activity, when you already assaulted
       somebody, like—no.

                                *      *      *
             Your chances of getting nine after trial are literally
       about zero. Your chances of getting 10 are extremely low.

2      Miranda v. Arizona, 384 U.S. 436 (1966).



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                           Opinion of the Court

      Your chances of getting above 10 like the 12, 13, 14, 15, that’s
      —it’s [a] better chance you get that than you get ten or nine
      for sure.

              I can’t imagine anyone giving you less than the
      presumptive when you’ve already been to prison for seven
      and a half years related to a vehicular assault and you've got
      another Agg DUI and you’re here for another Agg DUI, and
      you go to trial because when you go to trial, you also lose the
      mitigation of acceptance of responsibility, remorse, saving
      taxpayer time, court time, saving money for the courts. You
      lose all of that that goes in the good pile.

              Okay. When you go to trial, that just doesn’t exist.
      Okay? So when you go to trial, you have less in the good pile.
      When we’re weighing the good and the bad, and if you have
      less in the good pile, the stuff in the bad pile weighs heavier.
      Does that make sense?

The court continued to discuss Mendoza’s case with him, including the
sentence he would receive if he went to trial and was convicted, with little
intervention from either Mendoza’s counsel or the State. The following
colloquy occurred during this conversation:

      THE COURT: If you are convicted at trial, you will get more
      than nine years. So your plea offer may save you some time.
      It might not be what you want, but they’re not going to give
      you something better.

      [MENDOZA]: I’m by myself, Your Honor, so if I get 10 years,
      I get 10 years. . . . I have no family. When my mom died my
      family just—just disowned me and not supported me.

      THE COURT: And your time is not worth anything? You’d
      rather just spend your years in prison?

      [MENDOZA]: I was an electrician for—I was an electrician for
      the prison so I worked the whole time I was there.

      THE COURT: Oh, so you like prison?

      [MENDOZA]: I don’t like it, but I don’t like—just I’m putting
      pretty much a gun to my head. Either do or die.




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                           Opinion of the Court

      THE COURT: No, you’re right. You’re pretty much in the
      same spot as everybody else in here when they have to decide
      on a plea.

      [MENDOZA]: I made a mistake, Your Honor. I can’t change
      the past. But unfortunately—

      THE COURT: Well, you can’t but you can try to minimize the
      damage. But if you want to go to prison for longer, you let me
      know at sentencing because I’ll be happy—

      [MENDOZA]: I don’t.

      THE COURT: —to send you for 15 and have no problem with
      it.

      [MENDOZA]: I don’t want to, that’s why I (indiscernible) and
      maybe do some understanding. I’m not saying that I’m not
      guilty. I’m just understanding—

      THE COURT: I’m telling you after trial, your chances of
      getting below 10 are about zero. And not just from me, from
      about anyone.

At the end of the hearing, Mendoza rejected the State’s plea offer, and the
case went to trial. The same superior court judge who participated in the
March 2018 ad hoc settlement conference presided over the trial.

¶6            After a four-day trial, the jury found Mendoza guilty of Count
1 but acquitted him of Count 2. Before Mendoza’s sentencing, the Maricopa
County Adult Probation Department prepared a presentence report that
recommended Mendoza be sentenced to the presumptive term of
imprisonment, 10 years. The court found that Mendoza had four prior
felony convictions—two of which were historical—and proceeded to
sentencing. In considering the mitigators at issue in the case, the court
acknowledged Mendoza had sought treatment while awaiting trial but
explained that:

      There is no acceptance of responsibility. There is no remorse.
      There is none of the mitigators that you get when you take a
      plea. I explain to people that . . . means that just doesn’t exist
      in that pile any longer. There is no punishment for taking a
      case to trial. However, I hear a lot more in the trial than I ever
      hear when somebody does a plea.


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                            Opinion of the Court

The court found as aggravating circumstances that Mendoza committed the
offense a short time after being released from prison, he circumvented the
ignition interlock device to drive his vehicle, and he was driving with a
passenger in his car. The court also found that Mendoza had previously
been convicted of aggravated driving under the influence within the ten
years preceding the date of the offense, a statutory aggravator. A.R.S.
§ 13-701(D)(11). The court concluded the maximum sentence was
appropriate and sentenced Mendoza to 12 years’ imprisonment with 315
days’ presentence incarceration credit. After rendering its sentence, the
court stated:

       The aggravators are just exceptional and my concern for the
       safety of the community given what I heard during the trial is
       —I’m very concerned. So based on that I don’t think I can give
       any less than [12 years].

Mendoza appealed, and we have jurisdiction                    under     A.R.S.
§§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

¶7              Mendoza’s appellate counsel filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), certifying that, after a diligent search of the record, he found no
arguable question of law that was not frivolous. Counsel asked this court to
search the record for arguable issues. See Penson v. Ohio, 488 U.S. 75 (1988);
State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). Mendoza was allowed to
file a pro se supplemental brief and did so. After reviewing the record and
Mendoza’s brief, we requested the parties brief whether the superior court
judge who ultimately presided over Mendoza’s trial violated Rule 17.4(a)(2)
by participating in the settlement discussions at the March 2018 hearing




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                           Opinion of the Court

without obtaining the consent of the parties and, if so, what remedy exists
for a violation of the rule. 3

                              DISCUSSION

¶8            Mendoza argues the superior court judge who presided over
his trial and sentencing committed fundamental error by violating Rule
17.4(a)(2)’s prohibition of an assigned trial judge’s participation in
settlement discussions without the parties’ consent. Mendoza contends the
judge’s statements at sentencing, when interpreted considering her
erroneous participation in settlement discussions, reflected “a sentencing
bias towards [him] because he did not take the plea offer.” In response, the
State asserts: (1) Mendoza invited any theoretical error caused by the
judge’s involvement in settlement discussions during the hearing; (2) no
error occurred because Rule 17.4(a)(2) only applies to settlement
conferences ordered by the superior court, not to ad hoc settlement
discussions; and (3) even if the court violated Rule 17.4(a)(2), Mendoza has
not carried his burden of showing that such error was fundamental and
prejudicial.

¶9            Because Mendoza failed to object either to the assigned trial
judge’s participation in settlement discussions or to the judge thereafter
presiding over the trial, we agree with the parties that we must apply
fundamental error review. In State v. Escalante, 245 Ariz. 135 (2018), our
supreme court described the proper procedure for fundamental error
review as follows:




3      In his supplemental brief, Mendoza also raised the following
arguments: (1) if he had testified, he would have been found innocent;
(2) he did not receive an adequately speedy trial; (3) the State should not
have been allowed to introduce a recording of the traffic stop; and (4) his
trial counsel was ineffective because she was inexperienced, lacked
knowledge of his case, failed to object to evidence introduced by the State,
and failed to introduce relevant evidence. “[I]neffective assistance of
counsel claims are to be brought in [Arizona Rule of Criminal Procedure]
32 proceedings . . . [and] [a]ny such claims . . . will not be addressed by
appellate courts regardless of merit.” State v. Spreitz, 202 Ariz. 1, 3, ¶ 9
(2002). As for the other arguments, we have reviewed the record for
arguable error as to each claim and, finding none, will not address them
further.



                                     7
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                             Opinion of the Court

               [T]he first step in fundamental error review is
       determining whether trial error exists. If it does, an appellate
       court must decide whether the error is fundamental. In doing
       so, the court should consider the totality of the circumstances.
       A defendant establishes fundamental error by showing that
       (1) the error went to the foundation of the case, (2) the error
       took from the defendant a right essential to his defense, or
       (3) the error was so egregious that he could not possibly have
       received a fair trial. If the defendant establishes fundamental
       error under prongs one or two, he must make a separate
       showing of prejudice, which also “involves a fact-intensive
       inquiry.” If the defendant establishes the third prong, he has
       shown both fundamental error and prejudice, and a new trial
       must be granted. The defendant bears the burden of
       persuasion at each step.

Id. at 142, ¶ 21 (citations omitted) (quoting State v. Henderson, 210 Ariz. 561,
568, ¶ 26 (2005)). We address each element in turn.

A.     Rule 17.4(a)(2) Applies, and the Assigned Trial Judge Committed
       Error by Presiding Over Mendoza’s Trial and Sentencing After
       Participating in Settlement Discussions Without the Parties’
       Consent.

¶10           Rule 17.4(a)(2) provides:

       At either party’s request or on its own, a court may order
       counsel with settlement authority to participate in good faith
       discussions to resolve the case in a manner that serves the
       interests of justice. The assigned trial judge may participate in
       this discussion only if the parties consent. In all other cases,
       the discussion must be before another judge. If settlement
       discussions do not result in an agreement, the case must be
       returned to the trial judge.

(Emphasis added.)

¶11             The State argues the assigned trial judge’s participation in
settlement discussions at the March 2018 hearing was not error. Referencing
the statement in Rule 17.4(a)(2)’s first sentence that the court may “order
counsel . . . to participate in good faith discussions,” the State argues the
phrase “this discussion” in the rule’s second sentence refers only to
settlement discussions ordered explicitly by the court. Because no order to
participate in “good faith discussions” preceded the March 2018 hearing,


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                            Opinion of the Court

the State concludes the requirement that an assigned trial judge only
participate with the parties’ consent was never triggered, Rule 17.4(a)(2)
was not violated, and the court’s involvement in settlement discussions at
that hearing was not error.

¶12            We review the interpretation of court rules de novo, State v.
Fitzgerald, 232 Ariz. 208, 210, ¶ 10 (2013), and “according to the principles
of statutory construction,” Potter v. Vanderpool, 225 Ariz. 495, 498, ¶ 8 (App.
2010) (quoting Bolding v. Hantman, 214 Ariz. 96, 100, ¶ 16 (App. 2006)). “If a
rule’s language is plain and unambiguous, we apply it as written without
further analysis.” State v. Salazar-Mercado, 234 Ariz. 590, 592, ¶ 4 (2014). In
determining the plain meaning of a specific provision, we read its words in
context and “look to the [rule] as a whole.” Stambaugh v. Killian, 242 Ariz.
508, 509, ¶ 7 (2017). However, when a rule contains ambiguous language,
“we apply secondary principles of construction, such as examining the
rule’s context, its relationship to related rules, its background, and the
consequences of differing interpretations.” Roberto F. v. DCS, 237 Ariz. 440,
441, ¶ 6 (2015). We also apply secondary principles of construction if
“application of the plain meaning would lead to impossible or absurd
results.” Bilke v. State, 206 Ariz. 462, 464, ¶ 11 (2003).

¶13            Although Rule 17.4(a)(2)’s consent requirement does not
explicitly apply to settlement discussions other than those ordered by the
court, construing the provision’s requirements to apply to all judicial
participation in settlement discussions is the only reasonable interpretation
of the rule. Rule 17.4 outlines the process by which parties to a criminal
proceeding may negotiate, craft, and submit plea agreements. Rule 17.4(a)
sets out three categories of individuals—the parties (i.e., the defendant and
the State), judges, and victims—and defines the rights of each group to
participate in settlement discussions. Subsection 17.4(a)(1), for example,
recognizes the right of the defendant and the State to “negotiate and reach
agreement on any aspect of a case,” while subsection 17.4(a)(3) provides
victims “the opportunity to be present and to be heard regarding
settlement” if the defendant attends settlement discussions. This structure
strongly suggests that Rule 17.4(a)(2) was intended to provide the exclusive
avenue through which a court may participate in settlement discussions.

¶14            Review of the history and purpose of Rule 17.4(a) confirms
that the rule’s drafters intended it to be the exclusive exception to a general
rule barring judicial participation in settlement discussions. See State v.
Jordan, 137 Ariz. 504, 508–09 (1983) (holding judges may not participate in
settlement discussions). When the modern Arizona Rules of Criminal
Procedure were first promulgated in 1973, Rule 17.4(a) stated:


                                      9
                             STATE v. MENDOZA
                              Opinion of the Court

       The parties may negotiate concerning, and reach an
       agreement on, any aspect of the disposition of the case. The
       court shall not participate in any such negotiation.

(Emphasis added.) Ten years later, in State v. Jordan, our supreme court
described the purpose of the original rule’s prohibition on judicial
participation in settlement discussions. 137 Ariz. at 508. First, it found that
Rule 17.4(a) prevented the trial judge’s presence and involvement in
settlement discussions from naturally exerting a “subtle but powerful
influence” on the defendant’s decision to accept or reject a plea offer. Id. at
509 (quoting United States ex rel. Elksnis v. Gilligan, 256 F. Supp. 244, 254
(S.D.N.Y. 1966)). Second, the court observed that the rule preserved “public
confidence in the impartial and objective administration of criminal justice”
by maintaining the trial judge’s image as “a neutral arbiter.” Id. (quoting
United States v. Werker, 535 F.2d 198, 203 (2d Cir. 1976)). Finally, the court
stated that “when a sentence is imposed after judicial participation in plea
bargaining, it is unclear whether the sentence imposed was based on reason
or based on the fulfillment of the previous threat.” Id. (citing People v. Clark,
515 P.2d 1242, 1242–43 (Colo. 1973)).

¶15           Rule 17.4(a) remained substantively unchanged until 1999,
when, after a two-year experimental period, see Ariz. R. Crim. P. 17.4 cmt.
to 1997 amend., the Arizona Supreme Court permanently adopted an
amendment to the rule permitting judges to participate in settlement
discussions. Like the current version of the rule, however, the 1999
amendment did not grant judges the discretion to participate in whatever
manner they deemed appropriate. Instead, the 1999 amendment crafted a
specific procedure for judges to follow before participating in settlement
discussions:

       At the request of either party, or sua sponte, the court may, in
       its sole discretion, participate in settlement discussions by
       directing counsel having the authority to settle to participate
       in a good faith discussion with the court regarding a non-trial
       or non-jury trial resolution which conforms to the interests of
       justice. . . . The trial judge shall only participate in settlement
       discussions with the consent of the parties. In all other cases, the
       discussions shall be before another judge or a settlement division. If
       settlement discussions do not result in an agreement, the case
       shall be returned to the trial judge.

Ariz. R. Crim. P. 17.4(a) (1999) (emphasis added). By limiting the
participation of the trial judge, unless the parties consented to that judge’s


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                             Opinion of the Court

involvement, the 1999 amendment afforded defendants the benefits of
judicial presence in settlement discussions—including the ability to obtain
a neutral, candid, and informed perspective on the strengths and
weaknesses of the case and any plea offer—while avoiding the
constitutional hazards that prompted the original rule.

¶16           Rule 17.4(a) was abrogated and replaced along with the rest
of the Arizona Rules of Criminal Procedure in 2017. However, the drafters
of the current version of Rule 17.4 noted that any changes to the provisions
of the rule governing judicial participation in settlement conferences were
intended only to be stylistic, not substantive. See Petition to Amend the
Arizona Rules of Criminal Procedure, R-17-0002, app. B, at 31 (proposed
Jan. 8, 2017) (listing substantive changes to Rule 17.4 and noting that all
other       changes        are      intended        to     be        stylistic),
https://www.azcourts.gov/Rules-Forum/aft/661; see also Ariz. R. Crim. P.
prefatory cmt. to 2018 amends. (“The intent of these differences is to make
the [Arizona Rules of Criminal Procedure] more functional, and easier to
understand and use.”). Therefore, we conclude Rule 17.4(a)(2) retains the
careful balance struck by the 1999 version of the rule, including the
requirement that the assigned trial judge “only participate in settlement
discussions with the consent of the parties.” Ariz. R. Crim. P. 17.4(a) (1999).

¶17            Having analyzed Rule 17.4(a)(2)’s meaning and purpose, we
now turn to the application of the rule in this case. The State argues
Mendoza implicitly consented to the assigned trial judge’s participation by
defense counsel’s statement that he “wanted to discuss the case with the
Court.” We decline to draw the consent Rule 17.4(a)(2) requires from such
an ambiguous statement. Moreover, the assigned trial judge, not the parties,
crossed the line into settlement discussions at the March 2018 hearing by
going beyond a simple explanation of the charges and the potential
sentences and expressing her opinion on the sentence Mendoza would
receive were he convicted after trial. However, the judge’s violation of Rule
17.4(a)(2) at the March 2018 hearing did not, in and of itself, amount to
legally cognizable error. Thus, if the assigned trial judge had acquired the
parties’ consent to remain the trial judge, or recused herself at any time
before the trial, the due process concerns potentially raised by a violation
of the rule would have dissipated and Mendoza could claim no error,
fundamental or otherwise. The error that occurred here was that the
assigned trial judge presided over Mendoza’s trial and sentencing without
getting the parties’ consent after conducting the settlement conference.

¶18            Before we address whether this error was fundamental, we
note a critical exception to our conclusion that Rule 17.4(a)(2) applies to all


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judicial involvement in settlement discussions: a Donald 4 hearing. What
transpired was not a Donald hearing. A Donald hearing is a pre-trial hearing
where a defendant is informed of any outstanding plea offer and the
consequences of conviction so that a record of the defendant’s rejection of
the plea offer can be made to guard against any “late, frivolous, or
fabricated claims” of ineffective assistance of counsel “after a trial leading
to conviction with resulting harsh consequences.” Missouri v. Frye, 566 U.S.
134, 146 (2012). Although a Donald hearing may have some similarities to
settlement discussions contemplated by Rule 17.4(a)(2), the rule’s
requirements are not triggered because a Donald hearing is merely
informational; the court only informs the defendant of the plea offer and
the sentencing range faced if convicted. A court crosses the line from a
Donald hearing to a settlement conference when the court discusses the pros
and cons of accepting a plea, the likelihood of a conviction or sentence, and
any attempt to negotiate a settlement. Neither party disputes that the court,
in this case, crossed that line.

B.     The Assigned Trial Judge’s Improper Participation in the
       Settlement Discussions Was Fundamental Error.

       1.     The Invited Error Doctrine Does Not Apply.

¶19          The State next argues that even if an error occurred as a result
of the assigned trial judge’s participation in settlement discussions, we
should not consider whether it was fundamental or prejudicial because
Mendoza invited any error by asking the assigned trial judge to discuss the
case with him. We disagree.

¶20            The invited error doctrine describes the well-established
judicial principle that appellate courts “will not find reversible error when
the party complaining of it invited the error.” State v. Logan, 200 Ariz. 564,
565–66, ¶ 9 (2001) (collecting cases). The purpose of this doctrine is to
“prevent a party from ‘inject[ing] error in the record and then profit[ing]
from it on appeal.’” Id. at 566, ¶ 11 (alterations in original) (quoting State v.
Tassler, 159 Ariz. 183, 185 (App. 1988)). To determine whether the invited
error doctrine should preclude a party from raising an allegation of error
on appeal, courts “must look ‘to the source of the error, which must be the
party urging the error.’” State v. Lucero, 223 Ariz. 129, 135, ¶ 17 (App. 2009)
(quoting Logan, 200 Ariz. at 566, ¶ 11); see also Escalante, 245 Ariz. at 145,



4      State v. Donald, 198 Ariz. 406, 418, ¶ 46 (App. 2000).



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¶ 38 (“‘Invited error’ occurs when the defendant is the source of that
error.”).

¶21           We reject the State’s assertion that Mendoza’s request to
“discuss the case with the Court” made him the source of the error. To say
Mendoza invited whatever error resulted from his general request to speak
with the court would cause an unprecedented expansion of a doctrine that
should be approached with “extreme caution.” Lucero, 223 Ariz. at 135, ¶ 18
(quoting State v. Smith, 101 Ariz. 407, 409 (1966)). Accordingly, we conclude
the invited error doctrine does not apply.

       2.     The Assigned Trial Judge’s Participation in Settlement
              Discussions Raised     a   Presumption     of  Judicial
              Vindictiveness and, Therefore, Constituted Fundamental
              Error.

¶22            We must next determine whether the trial judge’s
participation in settlement discussions without consent of the parties was
fundamental error. Mendoza argues the trial judge’s statements during the
settlement conference, including her assertion that he would not receive
less than the presumptive sentence if he exercised his right to a jury trial,
reflects “a sentencing bias . . . because he did not take the plea offer” that
ultimately influenced her decision to impose the maximum sentence. In
response, the State argues the assigned trial judge’s participation was a
mere “technical violation of a prophylactic rule” and, therefore, “not the
rare case that involves fundamental error.” To meet his burden at this stage,
Mendoza must show the error “was fundamental in light of the facts and
circumstances of this case, recognizing that ‘the same error may be
fundamental in one case but not in another.’” State v. James, 231 Ariz. 490,
493, ¶ 13 (App. 2013) (quoting State v. Bible, 175 Ariz. 549, 572 (1993)).

¶23           Mendoza has not argued that the trial judge’s erroneous
participation in settlement discussions had any effect on his trial, and
rightly so. Our review of the record reveals no indication that Mendoza
received anything but a fair trial before an impartial judge and jury. Instead,
we agree with the State that Mendoza’s claim of fundamental error is best
characterized as an allegation of “judicial vindictiveness,” or a claim that
the assigned trial judge violated his due-process rights by imposing the
maximum sentence, at least in part, because he rejected the State’s plea offer
and exercised his Sixth Amendment right to a jury trial.

¶24         The constitutional prohibition upon judicial vindictiveness in
sentencing was first recognized by the Supreme Court in North Carolina v.



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Pearce, 395 U.S. 711 (1969). Pearce concerned two consolidated actions
brought by defendants who, after successfully appealing and reversing
their original convictions due to constitutional error, received harsher
sentences following a retrial. Id. at 713–15. The court held that “penalizing
those who choose to exercise” a constitutional or statutory right to appeal
their original conviction “would be patently unconstitutional” under the
Due Process Clause of the Fourteenth Amendment. Id. at 724 (quoting
United States v. Jackson, 390 U.S. 570, 581 (1968)). Thus, the Pierce Court
concluded due process required a presumption of judicial vindictiveness
“whenever a judge imposes a more severe sentence upon a defendant after
a new trial.” Id. at 726. To rebut that presumption, the Court held that the
reasons for the more severe sentence must “affirmatively appear” in the
record and be “based upon objective information concerning identifiable
conduct on the part of the defendant occurring after the time of the original
sentencing proceeding.” Id.

¶25             Twenty years later, in Alabama v. Smith, 490 U.S. 794, 798
(1989), the Court reconsidered the Pearce presumption in a situation where,
after a defendant successfully moved to set aside a plea agreement, the
same judge imposed a harsher sentence after trial than the judge had
imposed pursuant to the plea agreement. Acknowledging Pearce’s progeny
had limited its application to instances “where its objectives are thought
most efficaciously served,” Smith, 490 U.S. at 799 (quoting Texas v.
McCullough, 475 U.S. 134, 138 (1986)), the Court held that a presumption of
judicial vindictiveness would only arise where there was a “‘reasonable
likelihood’ that the increase in sentence [was] the product of actual
vindictiveness on the part of the sentencing authority,” id. (citation omitted)
(quoting United States v. Goodwin, 457 U.S. 368, 373 (1982)). The Court then
applied the “reasonable likelihood” test and concluded that “when a
greater penalty is imposed after trial than was imposed after a prior guilty
plea, the increase in sentence is not more likely than not attributable to the
vindictiveness on the part of the sentencing judge.” Id. at 801. In doing so,
the court recognized crucial differences between the factors and
information at play at sentencing following a guilty plea and sentencing
after trial, including that: (1) “the judge may gather a fuller appreciation of
the nature and extent of the crimes charged”; (2) “[t]he defendant’s conduct
during trial may give the judge insights into his moral character and
suitability for rehabilitation”; and (3) “the factors that may have indicated
leniency as consideration for the guilty plea are no longer present.” Id.

¶26           However, neither Smith nor any decision of the Court since
has applied a judicial vindictiveness analysis to a situation analogous to the
one presented in this case. In State v. Gutierrez, 240 Ariz. 460, 468, ¶ 30 (App.


                                       14
                           STATE v. MENDOZA
                            Opinion of the Court

2016), this court addressed as a matter of first impression whether a
presumption of judicial vindictiveness arises “whenever a judge imposes a
greater sentence after trial than the judge offered during pretrial plea
negotiations.” Applying Smith, we held that the “mere imposition of a
greater sentence after trial than offered in exchange for a pretrial plea” was
not enough to establish a presumption of judicial vindictiveness. Id. But
unlike Gutierrez, this case involves not only a disparity between the
sentence offered during settlement discussions and the sentence imposed
after trial. It also concerns the assigned trial judge’s comments during the
improperly conducted settlement discussions advocating for Mendoza to
accept the plea offer, and addressing the sentence she would impose if
Mendoza rejected the offer and went to trial. Thus, to assess whether a
presumption of judicial vindictiveness should arise under these
circumstances, we must look beyond Smith and Gutierrez for guidance.

¶27            We find the approach the Florida Supreme Court adopted in
Wilson v. State, 845 So.2d 142, 156–57 (Fla. 2003), to be persuasive. Like this
case, Wilson concerned whether a presumption of judicial vindictiveness
arises when a trial judge participating in settlement discussions
spontaneously comments on the sentence a defendant would receive if he
or she rejects a plea offer. Id. at 145–46. After examining Pearce and Smith,
the Florida Supreme Court adopted a totality of the circumstances analysis
“to determine whether a defendant’s constitutional right to due process of
law was violated by the imposition of an increased sentence after
unsuccessful plea discussions in which the trial judge participated” and
thereby raise a presumption of judicial vindictiveness. Id. at 156. The court
described several nonexclusive factors courts should consider, including:

       (1) whether the trial judge initiated the plea discussions with
       the defendant . . .; (2) whether the trial judge, through his or
       her comments on the record, appears to have departed from
       his or her role as an impartial arbiter by either urging the
       defendant to accept a plea, or by implying or stating that the
       sentence imposed would hinge on future procedural choices,
       such as exercising the right to trial; (3) the disparity between
       the plea offer and the ultimate sentence imposed; and (4) the
       lack of any facts on the record that explain the reason for the
       increased sentence other than that the defendant exercised his
       or her right to a trial or hearing.

Id. (footnote omitted). In doing so, the court recognized that a flexible,
factor-based test was necessary to properly balance “the realistic
expectation recognized in Smith that ‘a guilty plea may justify leniency,’


                                      15
                            STATE v. MENDOZA
                             Opinion of the Court

and the constitutional imperative that a defendant should not be penalized
by the judicial system for not accepting a plea and exercising his or her
constitutional right to proceed to trial.” Id. (quoting Smith, 490 U.S. at 802).

¶28             We believe that Wilson provides an appropriate method to
review claims of judicial vindictiveness arising out of a trial judge’s
participation in settlement discussions outside of the procedures in Rule
17.4. First, reviewing claims of judicial vindictiveness based on the totality
of the circumstances is consistent with the analysis employed by the
Supreme Court following Pearce and explicitly endorsed by Smith. See
McCullough, 475 U.S. at 138 (“Accordingly, in each case, we look to the need,
under the circumstances, to ‘guard against vindictiveness . . . .’” (quoting
Chaffin v. Stynchcombe, 412 U.S. 17, 25 (1973))); Smith, 490 U.S. at 799 (citing
McCullough to support its description of the “reasonable likelihood” test).
This approach is also consistent with the test our state has adopted for
assessing claims of prosecutorial vindictiveness, a related concept to
judicial vindictiveness. State v. Mieg, 225 Ariz. 445, 448–49, ¶ 15 (App. 2010).

¶29           Second, Wilson readily aligns with the approaches adopted by
many state and federal courts that have assessed the potential harm caused
by judicial participation in settlement discussions. See State v. D’Antonio,
877 A.2d 696, 712–18 (Conn. 2005) (adopting a totality of the circumstances
test based in part on Wilson and collecting state and federal cases taking
similar approaches); see also, e.g., United States v. Stockwell, 472 F.2d 1186,
1187–88 (9th Cir. 1973) (“[O]nce it appears in the record that the court has
taken a hand in plea bargaining, that a tentative sentence has been
discussed, and that a harsher sentence has followed a breakdown in
negotiations, the record must show that no improper weight was given the
failure to plead guilty.”); State v. Baldwin, 629 P.2d 222, 226 (Mont. 1981)
(finding “no assurance” in the record that trial court did not impose a
harsher sentence “in retaliation for defendant’s insistence on a trial by
jury”); State v. Moore, 547 N.W.2d 159, 171–72 (Neb. Ct. App. 1996)
(concluding, based on the record before it, that the trial court sentenced
defendant more severely because he exercised his right to a jury trial).

¶30           Third, we find the factors enumerated in Wilson particularly
useful in assessing such claims within Arizona because Florida, like
Arizona, recognizes the value and propriety of limited judicial participation
in settlement discussions. See State v. Warner, 762 So.2d 507, 514 (Fla. 2000)
(permitting judicial participation in settlement discussions provided
specific procedural requirements are met); Ariz. R. Crim. P. 17.4(a)(2).




                                      16
                             STATE v. MENDOZA
                              Opinion of the Court

¶31           For these reasons, the Wilson test correctly recognizes and
accounts for the careful balance that must be maintained between the
leniency a judge may afford defendants who plead guilty and the patently
unconstitutional act of penalizing those who choose to exercise their Sixth
Amendment right to a jury trial. See Jackson, 390 U.S. at 581; see also
Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (“To punish a person because
he has done what the law plainly allows him to do is a due process violation
of the most basic sort.”); Stockwell, 472 F.2d at 1187. Therefore, we conclude
that a totality of the circumstances analysis incorporating the
considerations described in Wilson should be used to determine whether a
trial judge’s improper participation in settlement discussions created a
“reasonable likelihood” that a defendant’s sentence was the product of
actual vindictiveness. When such a reasonable likelihood exists, a
presumption of judicial vindictiveness arises; when it does not, “the burden
remains upon the defendant to prove actual vindictiveness.” Smith, 490 U.S.
at 799.

¶32            We now apply the analysis to this case. During the settlement
discussions, the trial judge repeatedly asserted that she intended to impose
a greater sentence than the State’s 9-year plea offer if Mendoza was
convicted after a trial. In an attempt to further convince Mendoza to accept
the plea offer, the assigned trial judge informed him that by going to trial,
he would lose the “mitigation of acceptance of responsibility, remorse,
saving taxpayer time, court time, [and] saving money for the courts.” When
Mendoza continued to hesitate, the judge promised that he would “not get
nine years at trial,” and expressed her belief that Mendoza was “trying to
roll the dice” and see if that promise was “true or not.” Despite the judge’s
repeated urging, Mendoza rejected the State’s plea offer and proceeded to
trial, after which he was sentenced to 12 years’ imprisonment.

¶33              These comments alone, coupled with the 12-year sentence
Mendoza ultimately received, are more than enough to raise a presumption
of judicial vindictiveness concerning the sentence the trial judge imposed.
We do not mean to imply that the trial judge’s sentence was the result of
personal animus or hostility towards Mendoza; we agree with the State of
Florida that the expression “vindictiveness” in this context “is simply a
term of art which expresses the legal effect of a given objective course of
action, and does not imply any personal or subjective animosity between
the court . . . and the defendant.” Charles v. State, 816 So.2d 731, 734, n.1 (Fla.
Dist. Ct. App. 2002). We do not presume the trial judge’s intentions were
improper, but the fact remains that she clearly and repeatedly departed
from her critical role as a neutral arbiter by: (1) urging Mendoza to accept
the plea offer to save him some time in his sentence and avoid a trial she


                                        17
                            STATE v. MENDOZA
                             Opinion of the Court

indicated he had no chance of winning; and (2) promising to impose a
sentence no lower than the presumptive sentence, 10 years, if Mendoza
chose to go to trial. See Wilson, 845 So.2d at 156 (comments that appear to
show judge “departed from the role of a neutral arbiter . . . alone may give
rise to a presumption of judicial vindictiveness”); id. at 157 (presumption of
judicial vindictive arose, in part, because trial judge urged defendant to
accept plea and stated he “certainly” would not get a sentence lower than
the plea offer); see also Stockwell, 472 F.2d at 1187 (unrebutted presumption
of judicial vindictiveness arose by trial court’s statement that defendant
would receive two to four more years’ imprisonment than plea offer if he
chose to stand trial and was convicted).

¶34            We are also concerned by the assigned trial judge’s statement
that Mendoza would lose the “mitigation of acceptance of responsibility,
remorse, saving taxpayer time, court time, [and] saving money for the
courts” if he elected to exercise his Sixth Amendment right to a jury trial.
Arizona’s statutory sentencing scheme permits the superior court to
consider “any . . . factor that is relevant to the defendant’s character or
background or to the nature or circumstances of the crime and that the court
finds to be mitigating.” A.R.S. § 13-701(E)(6). However, the court’s broad
discretion in this sphere cannot override the constitutional imperative that
a defendant cannot be punished “because he has done what the law plainly
allows him to do.” Bordenkircher, 434 U.S. at 363; accord State v. Carriger, 143
Ariz. 142, 162 (1984) (“A defendant is guilty when convicted and if he
chooses not to publicly admit his guilt, that is irrelevant to a sentencing
determination.”); State v. Trujillo, 227 Ariz. 314, 318, ¶ 14 (App. 2011) (“[I]n
sentencing a defendant, a court may not consider . . . lack of remorse or
failure to admit guilt.”). Some of the mitigating factors the trial judge listed
are unique to a defendant’s decision to plead guilty, and thus likely fall
under the umbrella of circumstances justifying leniency as consideration for
a guilty plea. See Smith, 490 U.S. at 802. But “acceptance of responsibility”
and “remorse” are not mitigating factors unique to that decision.

¶35           In sum, after reviewing the totality of the circumstances and
applying the factors outlined in Wilson, we hold Mendoza has shown a
reasonable likelihood that his sentence was more likely than not the
product of actual vindictiveness, thus raising a presumption of judicial
vindictiveness. And because we presume the court violated Mendoza’s
due-process rights by imposing an increased sentence to penalize him for
exercising his Sixth Amendment right to a jury trial, we also hold that he
has established that the trial judge’s erroneous participation in settlement
discussions, in this case, constituted fundamental error. See State v. Thues,



                                      18
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                             Opinion of the Court

203 Ariz. 339, 340, ¶ 4 (App. 2007) (“Imposition of an illegal sentence
constitutes fundamental error.”).

¶36           In reaching these conclusions, we again emphasize that we
would not have found error arising from the March 2018 settlement
discussions, let alone fundamental error, if they had occurred in accordance
with Rule 17.4(a)(2); that is, either before a judge other than the assigned
trial judge or before the assigned trial judge with the parties’ consent or
subsequent ratification. The constitutional issues raised by judicial
participation in settlement discussions are typically “avoided altogether”
when the prophylactic rules designed to safeguard defendants’ due-process
rights in the plea-bargaining process are correctly utilized. Gutierrez, 240
Ariz. at 469, ¶ 34. When followed, Rule 17.4(a)(2) either provides a
defendant the assurance that the judge involved in settlement discussions
will play no role in the trial or sentence, or makes a record of the defendant’s
knowing and voluntary waiver of that assurance.

¶37             Thus, within the process the rule establishes, judges may
engage in a candid dialogue with the parties concerning any topic useful to
facilitating settlement, including the strength of a prospective plea offer, the
sentence likely to be imposed after trial, and any mitigating or aggravating
factors at issue in the case, without fear of generating the perception that
they have departed from their role as a neutral arbiter. When a trial judge
becomes involved in settlement discussions outside of that framework,
however, the judge risks being perceived as an advocate for a particular
outcome. No matter how well-intentioned the judge may have been in
engaging in those discussions, they can subject the judge to serious claims
challenging his or her impartiality, including claims of judicial
vindictiveness. Here, we believe the trial judge’s statements during the
settlement discussions realized those concerns. Consequently, this case did
not involve, as the State contends, a “mere technical violation of a
prophylactic rule,” but an error going to the heart of the very due-process
concerns the rule was originally designed to protect. See Jordan, 137 Ariz. at
509.

C.     Because Objective Evidence in the Record Does Not Rebut the
       Presumption of Judicial Vindictiveness Raised by the Trial
       Judge’s Participation in Settlement Discussions, Mendoza has
       Demonstrated Prejudice.

¶38         Having found fundamental error, we must now examine
whether Mendoza has established prejudice. “Establishing prejudice from
fundamental error varies depending on the nature of the error and the


                                      19
                            STATE v. MENDOZA
                             Opinion of the Court

unique case facts.” Escalante, 245 Ariz. at 144, ¶ 29. Although Mendoza still
“bears the burden of persuasion” at this step, id. at 142, ¶ 21, because a
presumption of judicial vindictiveness has been raised concerning the
sentence imposed by the assigned trial judge, the burden of production shifts
to the State “to produce affirmative evidence on the record to dispel the
presumption.” Wilson, 845 So.2d at 156. The State may do so by pointing to
“objective information . . . justifying the increased sentence.” McCullough,
475 U.S. at 142 (quoting Goodwin, 457 U.S. at 374).

¶39            Based on the record before us, the State has not successfully
justified the 12-year sentence the trial judge imposed to the extent necessary
to rebut the presumption raised by her statements at the settlement
conference. We do not dispute the State’s assertions that the aggravators
considered by the court were proper and that Mendoza’s sentence fell
within the range prescribed by law. But we cannot say the same for the
judge’s statements at the sentencing hearing concerning the mitigators
present in Mendoza’s case. During the hearing, the court made the
following statements concerning the mitigators of acceptance of
responsibility and remorse:

       There is no acceptance of responsibility. There is no remorse.
       There is none of the mitigators you get when you take a plea.
       I explain to people that . . . means that just doesn’t exist in that
       pile any longer.

These are the exact sentiments the court improperly made at the March 2018
hearing, and we cannot ignore the possibility that by repeating them at the
sentencing hearing, the assigned trial judge was making good on her
promise to categorically refuse to consider mitigating evidence because
Mendoza elected to go to trial. That the judge followed these statements by
saying there was “no punishment for taking a case to trial” and that she
“hear[s] a lot more in the trial” is of little comfort, especially when the judge
thereafter failed to acknowledge acts or statements by Mendoza indicating
an acceptance of responsibility or remorse such as starting a 12-step
program to address his alcohol issues.

¶40           It remains unclear whether the increased sentence was
imposed based on a proper balancing of the aggravators and mitigators
present in Mendoza’s case or instead “based on the fulfillment of the
previous threat[s]” made by the assigned trial judge regarding both the
mitigating evidence she would consider and the sentence Mendoza would
ultimately receive were he to reject the plea offer and go to trial. Jordan, 137
Ariz. at 509. And while not binding on the trial court, its rejection of the


                                       20
                          STATE v. MENDOZA
                           Opinion of the Court

presentence report’s recommendation of the presumptive sentence likewise
supports Mendoza’s claim of prejudice. Such is the inherent danger of
judicial involvement in settlement discussions outside the confines of Rule
17.4(a)(2) and the significance of the assigned trial judge’s departure from
her role as a neutral arbiter at the hearing. Accordingly, we must conclude
the presumption of judicial vindictiveness has not been rebutted and that
Mendoza has established prejudice justifying relief here.

¶41          We turn briefly to address the question of the appropriate
remedy for cases involving an unrebutted presumption of judicial
vindictiveness in sentencing. In Wilson, the court reasoned that
resentencing before a different judge was necessary to “place[] the
defendant in the same position he or she would have been in if the plea
discussions had never occurred—before a neutral arbiter to receive a lawful
sentence.” 845 So.2d at 159. We agree with that rationale and hold the
proper remedy, in this case, is a resentencing before a different judge.

                              CONCLUSION

¶42          We affirm Mendoza’s conviction but vacate his sentence and
remand for resentencing before a different judge.




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




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