Williams v. State

Opinions

Opinion

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

JARED NEIL WILLIAMS, Petitioner,

v.

STATE OF ARIZONA, Respondent.

No. 1 CA-SA 26-0232

FILED 08-27-2026

Petition for Special Action from the Superior Court in Yavapai County No. S1300CR202400470

The Honorable Debra R. Phelan, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Griffen & Stevens Law Firm, PLLC, Flagstaff By Bruce S. Griffen Counsel for Petitioner

Yavapai County Attorney’s Office, Prescott By Nathan R. Best Counsel for Respondent

OPINION

Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in which Judge Kent E. Cattani and Judge Andrew M. Jacobs joined.

Opinion of the Court

T H U M M A, Judge:

¶1 This special action turns on the timeliness of a notice of change of judge as a matter of right in a criminal case. Petitioner filed the notice after his arraignment on a new indictment containing more serious charges in a case filed two years earlier. The court accepts special action jurisdiction and grants relief because the notice was timely under Rule 10.2 of the Arizona Rules of Criminal Procedure.

FACTS AND PROCEDURAL HISTORY

¶2 This case arises out of an April 2024 fatal car crash in Prescott. Later that month, a grand jury issued an indictment charging Petitioner Jared Neil Williams with: (1) manslaughter, a Class 2 dangerous felony; (2) two counts of aggravated assault, Class 3 dangerous felonies; and (3) two misdemeanor counts of driving while under the influence. The case was assigned to Division 8, Judge Debra Phelan, and Petitioner was arraigned in May 2024. Petitioner did not file a notice of change of judge at that time. See Ariz. R. Crim. P. 10.2 (2026).1

¶3 In May 2026, a different grand jury issued another indictment based on the same April 2024 fatal car crash charging Petitioner with: (1) second degree murder, a Class 1 dangerous felony; (2) aggravated assault, a Class 3 dangerous felony; (3) criminal damage, a Class 4 dangerous felony; (4) endangerment, a Class 6 dangerous felony; and (5) two misdemeanor counts of driving while under the influence. The May 2026 indictment was filed in the same case as the April 2024 indictment.

¶4 On May 6, 2026, Petitioner was arraigned on the May 2026 indictment. Judge Whitmer, who presided over the arraignment, then assigned the case to Division 8, Judge Phelan. On May 18, 2026, Petitioner filed a notice of change of judge as a matter of right, in the proper form, asking that the case be assigned to a different judge. See Ariz. R. Crim. P. 10.2(b), (c).

1 Absent material revisions after the relevant dates, statutes and rules cited

refer to the current version unless otherwise indicated.

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¶5 The next morning, on the court’s own motion, Judge Phelan denied the notice of change of judge as untimely. Citing Woodington v. Browning, 240 Ariz. 288, 292 ¶ 17 (App. 2016), the court wrote a notice of change of judge “is available only following ‘the arraignment,’ interpreted to mean the first arraignment in a case.” Noting the May 2026 indictment was filed “in the same cause number, based on the same events, as the” April 2024 indictment, the court found the May 2026 notice untimely. The court concluded that “[a] party is not entitled to a second preemptory strike after a second arraignment when the case has not been dismissed.” Judge Phelan ordered that “the matter remains assigned to this division.”

¶6 Later that day, the State filed a response to Petitioner’s notice, arguing the May 2026 indictment “did not give rise to a new criminal case and therefore did not trigger a second right to a peremptory challenge to a judge pursuant to Rule 10.2,” arguing in the alternative that the notice was not filed within 10 days after the May 6, 2026 arraignment. Petitioner moved to reconsider, arguing the notice was filed 10 court days after the arraignment and that Woodington was distinguishable, including because the May 2026 indictment included a second degree murder charge, a “far more serious charge” than the April 2024 indictment. Finding no good cause to reconsider, Ariz. R. Crim. P. 16.1(d), and stating the “parties’ input” was “irrelevant,” the court denied Petitioner’s motion to reconsider. This timely special action followed.

DISCUSSION

I. This Court Accepts Special Action Jurisdiction.

¶7 “[A] challenge to the denial of a notice of peremptory change of judge filed pursuant to Rule 10.2 must be brought by special action. A defendant cannot challenge the trial court’s denial of his request for a peremptory change of judge on direct appeal.” State v. Ingram, 239 Ariz. 228, 232 ¶ 16 (App. 2016). Given that Petitioner has no remedy by appeal, and because the issue is one of statewide importance, Ariz. R.P. Spec. Act. 12(b)(4) & (5), this court accepts special action jurisdiction, see Godoy v. Hantman, 205 Ariz. 104, 106 ¶ 5 (2003); Woodington, 240 Ariz. at 290 ¶ 5.

II. The Notice of Change of Judge Was Timely.

¶8 The issue here is whether the superior court erred in denying his notice of change of judge as a matter of right under Rule 10.2. “Each side in a criminal case is entitled to one change of judge as a matter of right.” Ariz. R. Crim. P. 10.2(a)(1). That right is exercised through a notice of change of judge, which must include “an avowal that the party is making

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the request in good faith and not for an improper purpose.” Ariz. R. Crim. P. 10.2(b)(1). A party may exercise the right to such a notice only once in a case, Ariz. R. Crim. P. 10.2(a)(3), and only if the party has not yet participated “before that judge in any contested matter in the case,” Ariz. R. Crim. P. 10.2(e).

¶9 Here, the record indicates that Petitioner’s May 2026 notice was his first notice in this case, and the State does not argue that Petitioner participated in any contested matter before filing the May 2026 notice. A timely notice of change of judge in proper form requires the matter to be transferred from the assigned judge to another judge. See Ariz. R. Crim. P. 10.2(d)(2). The question, then, is whether the May 2026 notice was timely.

¶10 As applicable here, “a party must file a notice of change of judge no later than 10 days after . . . the arraignment, if the case is assigned to a judge and the parties are given actual notice of the assignment at or before the arraignment.” Ariz. R. Crim. P. 10.2(c)(1)(A). The parties were given actual notice of the assignment of the May 2026 indictment to Judge Phelan at the May 6, 2026 arraignment. There is no dispute that the notice of change of judge was in proper form and was filed within 10 judicial days of the May 6, 2026 arraignment. See Ariz. R. Crim. P. 1.10(a)(1) & (2) (accounting for weekends and holidays). And because Petitioner had not previously filed a notice of change of judge, the notice was timely based on the text of the Rule.

¶11 The superior court disagreed, citing Woodington for the proposition that the reference to “the arraignment” in the current version of Rule 10.2 means “the first arraignment in the case.” That meant the window to file a notice of change of judge closed 10 days after the arraignment on the April 2024 indictment. The parties agree that, if “the arraignment” as used in current Rule 10.2(c)(1)(A) refers only to the May 2024 arraignment on the April 2024 indictment, the May 2026 notice was untimely. If, however, “the arraignment” refers to the May 2026 arraignment on the May 2026 indictment, the notice was timely.

¶12 By referencing “the arraignment,” Rule 10.2(c)(1)(A) creates an ambiguity that confounds the timeliness question. If the Rule used slightly different text -- for example, “the first arraignment” or “any arraignment” -- answering the timeliness question would be easy. Indeed, in construing a slightly different version of Rule 10.2(c)(1)(A), Woodington discussed such options. 240 Ariz. at 290 ¶ 8. Although Rule 10.2(c)(1)(A) was amended after Woodington to add “the” before “arraignment,” those amendments did not resolve the issue. For that reason, the Rule would

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benefit from a clarifying rule change. Cf. Yee v. Yee, 251 Ariz. 71, 76 ¶ 14 n.5 (App. 2021) (suggesting a rule change to the Arizona Rules of Family Law Procedure “[t]o avoid uncertainty and confusion”).

¶13 This court must apply the Rule as it currently is written. And in applying the Rule, this court does not write on a blank slate. Two appellate decisions applying Rule 10.2 provide guidance, albeit in distinguishable contexts. See Godoy, 205 Ariz. 104; Woodington, 240 Ariz. 288.

¶14 Godoy held “that a new indictment begins a separate matter and that the right to a peremptory change of judge applies as if no prior action had been filed.” 205 Ariz. at 105 ¶ 1. Godoy, however, made that declaration in a case where the State “refile[d] a criminal matter previously dismissed without prejudice.” Id. After securing the dismissal without prejudice in the first case (an indictment alleging nine perjury counts), the State obtained a second indictment (alleging four perjury counts stemming from the same conduct as the first indictment) and filed it in a “new case.” Id. at 105 ¶¶ 2-4, 106 ¶ 8. The State then filed a notice of change of judge within 10 days of the arraignment on the second indictment. Id. at 106 ¶ 4. Godoy held that the second indictment instituted a “new case,” not a continuation of the original case. Id. at 106 ¶ 8. Rejecting defendant’s argument that the second indictment “simply ‘continued’ the earlier action against him,” Godoy held the indictment in the new case allowed the parties the right to file a notice of change of judge anew. Id. at 106 ¶¶ 6, 8.

¶15 Here, by contrast, the State elected to file the May 2026 indictment in the same case in which it filed the April 2024 indictment. Thus Godoy is at least procedurally distinguishable, given the State here did not seek to dismiss the previous indictment without prejudice. That distinction, however, is based solely on the State’s charging decision to file the May 2026 indictment in the same case.

¶16 In Woodington, on which the State relies, the court declared that “a party is not entitled to a second peremptory strike after a second arraignment when the case has not been dismissed.” 240 Ariz. at 292 ¶ 17. As applied, the State argues that the May 2026 indictment filed in the same case “simply ‘continued’ the earlier action.” 240 Ariz. at 291 ¶ 11. Accordingly, the State argues the May 2026 notice was untimely by about two years. Although similar in some ways to this case, Woodington is materially different in several significant ways.

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¶17 First, unlike this case, Woodington involved indictments alleging the exact same charges. See 240 Ariz. at 289 ¶ 2 (first indictment in superior court case No. CR20153529001 alleged “second-degree murder”); State v. Woodington, Nos. 2 CA-CR 2017-0295 and 2 CA-CR 2018-0100, 2019 WL 2290885, at *1 ¶ 1 n.1 (Ariz. App. May 28, 2019) (mem. decision) (appeal from conviction of charge in second indictment, which alleged “second- degree murder, associated with superior court case No. CR20153529001”). Here, by contrast, the charges in the April 2024 and May 2026 indictments arose out of the same facts, but are significantly different in both the severity and number of felony counts. Compared to the April 2024 indictment, the May 2026 indictment (1) changed the manslaughter charge (a Class 2 felony) to second degree murder (a Class 1 felony); (2) added a Class 4 criminal damage dangerous felony charge; and (3) added a Class 6 endangerment dangerous felony charge, along with removing an aggravated assault charge. Those changes are qualitatively different from the same charges that Woodington found “simply ‘continued’ the earlier action.” 240 Ariz. at 291 ¶ 11; see also Godoy, 205 Ariz. at 106 ¶ 6 (finding second indictment did not “simply ‘continue[]’ the earlier action”).2

¶18 Second, Woodington involved a second indictment issued after the court granted defendant’s motion to remand for a new presentation to the grand jury and a new probable cause determination. 240 Ariz. at 289 ¶¶ 1-2. Woodington found that fact significant, given the directive in Rule 12.9 (“Challenge to Grand Jury Proceedings”), which allows the State to “continue its ‘prosecution of the case’” by filing a complaint or by resubmitting the matter to a grand jury after the court grants a motion for a new probable cause finding. 240 Ariz. at 291 ¶ 13 (quoting Ariz. R. Crim. P. 12.9(c)). Woodington noted “the language of Rule 12.9 anticipates that on remand to the grand jury the case simply ‘continues’ after the new finding of probable cause.” 240 Ariz. at 291 ¶ 12. Noting the exclusion, for speedy trial purposes, Ariz. R. Crim. P. 8.4(b), of the time involved in a new grand

2 It is unclear whether the defendant in Woodington filed two notices of

change of judge or, instead, claimed that the time for such a notice started anew after the filing of the second indictment. See Woodington, 240 Ariz. at 291 ¶ 12 (distinguishing Godoy, stating defendant “was not entitled to a second peremptory challenge because his case was never dismissed”); id. at 292 ¶ 17 (concluding “a party is not entitled to a second peremptory strike after a second arraignment when the case has not been dismissed”). But see id. at 290 ¶ 3 (noting the respondent judge indicated the case “ha[d] been assigned to” him “since its inception”). Here, the only notice of change of judge Petitioner filed was the May 2026 notice.

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jury presentment, Woodington added that granting a motion to remand “anticipated a continuing proceeding, not a new one.” 240 Ariz. at 291 ¶ 14. Unlike in Woodington, there was no order remanding to the grand jury in this case. Instead, for reasons not identified in the record, the State decided to present the matter to a new grand jury and seek a new indictment.

¶19 Finally, Woodington observed in a footnote that “[a]ny amendment or additional charges in the same case will not entitle the state to successive peremptory challenges under Rule 10.2.” 240 Ariz. at 292 ¶ 17 n.3. As noted previously, Petitioner has filed one notice of change of judge, not successive notices. Indeed, Woodington cited Godoy for the proposition that Rule 10.2 applies to “either party in a criminal case to a change of judge as a matter of right.” Id. (quoting Godoy, 205 Ariz. at 106 ¶ 6). This Woodington footnote was in the context of the defendant’s concern that the State would “amend[] or add[] charges upon remand to the grand jury in which case he theorizes the state would be entitled to another peremptory challenge.” 240 Ariz. at 292 ¶ 17 n.3. Here, the potential mischief is the opposite of what Woodington identified.

¶20 If, as the State argues, “the arraignment” in Rule 10.2(c)(1)(A) does not apply even if a second indictment enhances charges arising from the same facts, the State’s charging decision alone would control the applicability of the Rule. That would mean that the State could preclude any attempt by a defendant to exercise the right to file a notice of change of judge after the arraignment on a second indictment. If, in a hypothetical case, where the State wished to enhance or change the charges pending against the defendant, it could unilaterally take action that would either renew or prevent a new notice of change of judge. If the State wanted to keep the judge assigned to the original case, it would file the new indictment in that same case. If, instead, the State wanted to notice the judge assigned to the original case, it would file the second indictment in a new case, dismiss the original case without prejudice, and then exercise its notice of change of judge in the new case. See Godoy, 205 Ariz. at 105 ¶ 1. The defendant, by contrast, would have to abide by the State’s election in making these charging decisions. Applying “the arraignment” as used in Rule 10.2(c)(1)(A) to mean any arraignment in the case avoids such potential unfairness.

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CONCLUSION

¶21 Accepting special action jurisdiction, the court grants relief, concluding on the record presented that Petitioner’s May 2026 notice of change of judge as a matter of right was timely and remanding this matter for reassignment to a different judge. The court does so applying the current version of Arizona Rule of Criminal Procedure 10.2(c)(1)(A) as written, recognizing the Rule would appear to benefit from an amendment through a clarifying rule change as noted above.

MATTHEW J. MARTIN • Clerk of the Court FILED: JR

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