Hill v. Hall Ex Rel. County of Yuma

980 P.2d 967, 194 Ariz. 255, 296 Ariz. Adv. Rep. 40, 1999 Ariz. App. LEXIS 90
CourtCourt of Appeals of Arizona
DecidedMay 27, 1999
Docket1 CA-SA 98-0284
StatusPublished
Cited by7 cases

This text of 980 P.2d 967 (Hill v. Hall Ex Rel. County of Yuma) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hill v. Hall Ex Rel. County of Yuma, 980 P.2d 967, 194 Ariz. 255, 296 Ariz. Adv. Rep. 40, 1999 Ariz. App. LEXIS 90 (Ark. Ct. App. 1999).

Opinions

OPINION

GARBARINO, Judge.

¶ 1 Petitioner Reg Lynn Hill claims that the trial court erred by denying his request for a change of judge pursuant to Rule 17.4(g) of the Arizona Rules of Criminal Procedure. We hold that an earlier Rule 10.2 change of judge at his request was an exercise of his only peremptory challenge and that he is not entitled to a second peremptory change of judge pursuant to Rule 17.4(g). We accepted jurisdiction and denied relief, with this opinion to follow.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Petitioner was charged with one count of possession of a dangerous drug, one count of possession of drug paraphernalia, two counts of stalking, and one count of misconduct involving weapons. After pleading not guilty to each charge, petitioner requested a change of judge pursuant to Rule 10.2. Judge Thomas C. Cole granted petitioner’s request and ordered the case transferred to Judge Philip L. Hall.

¶ 3 Petitioner then pled guilty to two counts of attempted stalking in exchange for the dismissal of the other charges against him. After petitioner learned that one of the victims opposed probation, petitioner filed a motion to withdraw his guilty plea, which the court granted. Petitioner then requested a change of judge pursuant to Rule 17.4(g). The following exchange took place between petitioner’s counsel and Judge Hall:

[COURT:] Anything more at this time, Mr. Donovan?
MR. DONOVAN: Yes. Judge, I would ask it be assigned to another division. I note that in that court, the problem occurred in essence "with the court having reviewed the presentence report on this particular matter and obtaining the information. In essence, I believe the purpose of the rule is that once the court has read the presentence report they then are privy, literally, to all the information in the case and we really need to be in a pre-jury trial setting.
[257]*257THE COURT: In reviewing the fide in this matter, Mr. Donovan, I note the defendant has already been granted one automatic change of judge. I don’t know if you were aware of that or not.
MR. DONOVAN: Was granted an automatic — was that a—
THE COURT: Peremptory.
MR. DONOVAN: — Simple notice change of judge?
THE COURT: Yes. A simple notice of change of judge.

Following further discussion, the court denied petitioner’s request for a change of judge and set the matter for trial. Petitioner filed this special action and the State filed a response.

JURISDICTION

¶4 We accepted jurisdiction because special action relief is appropriate when the issue is whether a judge has refused to transfer a case to another judge after having been requested to do so. See Chavez v. Superior Ct., 181 Ariz. 93, 94, 887 P.2d 623, 624 (App.1994). In addition, this case presents a narrow question of law which is of statewide importance. See Fiveash v. Superior Ct., 156 Ariz. 422, 423, 752 P.2d 511, 512 (App.1988).

ISSUE

Does the exercise of a peremptory right to a change of judge under Rule 10.2 preclude a later peremptory change of judge under Rule 17.4(g)?

DISCUSSION

¶ 5 Petitioner argues that the request for a change of judge pursuant to Rule 17.4(g) is not a peremptory challenge and is not precluded by a prior Rule 10.2 change of judge. He further argues that a denial of a request for a change of judge under Rule 17.4(g) violates his right to an impartial judge and threatens the integrity of the judicial system. To support his argument, he cites Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969), and Chavez, 181 Ariz. at 95, 887 P.2d at 625. We disagree with petitioner.

¶6 First, Rule 10.2(b), which serves as a complement to Rule 17.4(g), grants to a party the right to a peremptory change of judge upon request. Rule 10.2(b) states:

b. Procedure. A party may exercise his or her right to a change of judge by filing a pleading entitled “Notice of Change of Judge” signed by counsel, if any, stating the name of the judge to be changed. A judge may honor a timely informal request for change of judge, entering upon the record the date of the request and the name of the party requesting. Assignment to another judge shall be made in accordance with the provision of this rule.

Rule 10.2(c) provides that a notice of change of judge must be filed within ten days after the arraignment, filing of the mandate, or actual notice to the requesting party of the case’s assignment to a judge. In the event a party fails to exercise his Rule 10.2 peremptory right to a change of judge within the ten day period, that party forfeits his right to a peremptory challenge. However, the loss of the right to a peremptory challenge of a judge in no way affects a party’s Rule 10.1 right to a change of judge for cause.

¶ 7 If a defendant desires a change of judge due to the potential prejudice of failed plea negotiations, and he has not exercised his Rule 10.2 right to a change of judge, he may invoke Rule 17.4(g). This rule sets forth:

g. Automatic Change of Judge. If a plea is withdrawn after submission of the presentence report, the judge, upon request of the defendant, shall disqualify himself or herself, but no additional disqualification of judges under this rule shall be permitted.

¶8 The purpose of Rule 17.4(g) is limited to extending to the defendant the opportunity to move for an automatic change of judge once the time period has passed allowing for such a request under Rule 10.2. In Fiveash, upon which the trial court relied in denying petitioner’s request for a change of judge, Fiveash withdrew from a guilty plea and exercised his right to a change of judge under Rule 17.4(g). He later requested a [258]*258change of judge under Rule 10.2, which the trial court denied. On appeal, Division Two of this Court denied special action relief, stating,

Rule 17.4(g) does not, in our view, give rise to an automatic change of judge for cause. Rather, we construe the rule as giving a defendant the opportunity for a peremptory change of judge which would otherwise be unavailable to him because of the expiration of the time limits of Rule 10.2 and because of his participation in the change of plea proceeding. This conclusion is fortified by the fact that Rule 17.4(g) allows only one challenge. If the challenge was truly for cause, the number of challenges should be unlimited.

Id. at 425, 752 P.2d at 514.

¶ 9 Rule 10.1 protects the defendant when there are justified concerns about a judge’s biases or prejudices which could prevent a fair and impartial hearing or trial. Rule 10.1(b) provides as follows:

b. Procedure. Within 10 days after discovery that grounds exist for change of judge, but not after commencement of a hearing or trial, a party may file a motion verified by affidavit of the moving party and alleging specifically the grounds for the change.

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Hill v. Hall Ex Rel. County of Yuma
980 P.2d 967 (Court of Appeals of Arizona, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
980 P.2d 967, 194 Ariz. 255, 296 Ariz. Adv. Rep. 40, 1999 Ariz. App. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-hall-ex-rel-county-of-yuma-arizctapp-1999.