Nikont v. State of Arizona ( 2005 )

FILED BY CLERK
IN THE COURT OF APPEALS NOV -2 2005
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
)
LISA ARNETTE NIKONT, )
)
Petitioner, )
)
v. ) 2 CA-SA 2005-0072
) DEPARTMENT A
HON. HOWARD HANTMAN, Judge of )
the Superior Court of the State of ) OPINION
Arizona, in and for the County of Pima, )
)
Respondent, )
)
and )
)
THE STATE OF ARIZONA, )
)
Real Party in Interest. )
)
SPECIAL ACTION PROCEEDING
Pima County Cause No. CR-20011407
RELIEF DENIED
Robert J. Hooker, Pima County Public Defender
By Lori J. Lefferts Tucson
Attorneys for Petitioner
Barbara LaWall, Pima County Attorney
By Taren M. Ellis Tucson
Attorneys for Real Party
in Interest
B R A M M E R, Judge.
¶1 Petitioner Lisa Nikont seeks special action relief from the respondent judge’s
ruling denying her request in the underlying criminal proceeding for a change of judge
pursuant to Rule 10.2, Ariz. R. Crim. P., 16A A.R.S.1 Nikont filed her request after this court
granted her post-conviction relief, vacated her aggravated sentences, and remanded the case
for resentencing based on our conclusion that the sentences had been imposed in violation
of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).
¶2 Because the ruling denying the request for a change of judge is not an
appealable order, see A.R.S. § 12-2101, Nikont necessarily does not have “an equally plain,
speedy, and adequate remedy by appeal.” Ariz. R. P. Spec. Actions 1(a), 17B A.R.S.; see
Medders v. Conlogue, 208 Ariz. 75, 90 P.3d 1241 (App. 2004). And, because the strictly
legal issue is one of first impression and of statewide importance that may recur, see
Medders; Fragoso v. Fell, 210 Ariz. 427, 111 P.3d 1027 (App. 2005), we accept jurisdiction
of the special action. But we conclude the respondent judge did not abuse his discretion in
denying Nikont’s request for a change of judge and deny relief.
¶3 Pursuant to a plea agreement, Nikont was convicted of manslaughter, leaving
the scene of an accident causing injury, and driving under the influence of an intoxicant. The
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In addition to arguing that the respondent judge abused his discretion in denying her
request for a change of judge, Nikont argues that he exceeded his authority by ruling on the
request himself rather than asking the presiding judge of the superior court to rule on it.
Because we conclude Nikont has no right to a change of judge, however, we do not address
the argument.
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respondent judge sentenced her to concurrent, aggravated prison terms of twenty-one years
and seven years, to be followed by a four-year term of probation.
¶4 Nikont sought post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., 17
A.R.S., challenging the aggravating circumstances on which the judge had relied. After the
respondent denied relief, she petitioned for review in this court. This court granted relief
under Blakely and remanded the case for resentencing. We issued our mandate on June 8,
2005, the superior court filed the mandate on June 10, and Nikont filed a notice of change
of judge on June 15. The respondent judge denied the request at a status conference on June
17, relying on the last sentence of Rule 10.2(a) which states, in part, that “the right to a
change of judge shall be inapplicable to . . . remands for resentencing.”
¶5 Rule 10.2(a) provides that each side in a criminal case “is entitled as a matter
of right to a change of judge.” A party exercises the right by filing a notice of change of
judge within ten days of, among other circumstances, the filing of an appellate court mandate
with the clerk of the superior court. Ariz. R. Crim. P. 10.2(c)(2). Nikont filed her notice
within the time limit of Rule 10.2(c)(2). But Rule 10.4(a) provides that a party loses the right
to a peremptory change of judge by entering a change of plea pursuant to Rule 17, Ariz. R.
Crim. P., 16 A.R.S., as Nikont did. Nikont contends that, although she entered a guilty plea
pursuant to Rule 17, she is nonetheless entitled to a change of judge as a matter of right under
Rule 10.4(b) because this court remanded her case for a new trial. Rule 10.4(b) provides as
follows:
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b. Renewal. When an action is remanded by an
Appellate Court for a new trial on one or more offenses charged
in the indictment or information, all rights to change of judge or
place of trial are renewed, and no event connected with the first
trial shall constitute a waiver.
¶6 We remanded Nikont’s case for resentencing, contemplating she would receive
a jury trial on the existence of aggravating circumstances in compliance with the holding in
Blakely, not a new trial on any of the offenses charged in the indictment. In fact, Nikont did
not challenge her convictions in the post-conviction proceeding; she challenged only the
sentences. Accordingly, we reject her argument that her right to a change of judge as a
matter of right was renewed under Rule 10.4(b).
¶7 We agree with the respondent judge’s conclusion that the controlling language
is in the final sentence of the version of Rule 10.2(a) the supreme court adopted on June 8,
2004, that became effective on October 1, 2004. 208 Ariz. XLIV, XLVI-XLVII (2004).
That sentence reads: “Notwithstanding the foregoing provision, the right to a change of
judge shall be inapplicable to Rule 32 petitions for post-conviction relief or remands for
resentencing.” Ariz. R. Crim. P. 10.2(a). Nikont’s case falls squarely within the latter
restriction. That she may now receive a jury trial on the existence of aggravating
circumstances is simply incidental to the relief we granted on review—the remand of her case
for resentencing.
¶8 Although our supreme court adopted the pertinent language in Rule 10.2(a)
approximately two weeks before the United States Supreme Court decided Blakely, our
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supreme court did not change that language in the following months before the rule change
became effective. Until informed otherwise, therefore, we presume the court did not believe
Blakely required any change in the final sentence of Rule 10.2(a). Moreover, the court
adopted the language after it decided State v. Ring, 204 Ariz. 534, 65 P.3d 915 (2003). In
that case, in response to the United States Supreme Court’s ruling in Ring v. Arizona, 536
U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), our supreme court upheld the statutory
changes requiring that a jury decide the sentencing factors in capital cases. Therefore, the
supreme court was aware of the possibility of a jury’s involvement in resentencing when it
included the new language in Rule 10.2(a). Had it intended to except those resentencing
procedures that involved jury trials from the exclusionary language of Rule 10.2(a), it would
have expressly done so.
¶9 Accordingly, although we accept jurisdiction of this special action, we deny
special action relief and affirm the respondent judge’s ruling.
J. WILLIAM BRAMMER, JR., Judge
CONCURRING:
JOSEPH W. HOWARD, Presiding Judge
PETER J. ECKERSTROM, Judge
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