state resp0nse to warden appeal of transparently invalid order of the court.pdf

7/29/2019 STATE RESP0NSE TO WARDEN APPEAL OF TRANSPARENTLY INVALID ORDER OF THE COURT.pdf

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ROY WARDEN,Defendant/Appellant,

IN THE SUPERIOR COURT OF THE STATE OF ARIZONAIN AND FOR THE COUNTY OF PIMA

23THE STATE OF ARIZONA, by the undersigned Principal Assistant Prosecuting City

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No.Tucson City Court Cause No.CR 09006068APPELLEE'S RESPONSIVEMEMORANDUM

Judge: Hon. _Division ----

Attorney, submits its Appellee's Responsive Memorandum in this matter.2425 HISTORY OF THE CASE

OnFebruary 4,2008, RoyWarden, theDefendant/Appellant, was arrested in Library27 Park at 101 North Stone for a violation of Tucson City Code 21-3, regulating behavior in city

1 MICHAEL G. RANKIN2 City AttorneyBaird S. Greene3 Deputy City Attorney\Villiam F.Mills4 Principal Assistant Prosecuting Attorney5 Criminal DivisionP.O. Box 272106 Tucson,AZ 85726-7210AZ State Bar No. 0056027 Pima Co. Computer No. 393648 (520) 791-4104E-mail: [email protected]

STATE OF ARIZONA,13 ))))))))))))/

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Plaintiff/Appellee

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parks. The Defendant was issued a citation and field released with instructions to appear for


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on his own recognizance. The Defendant's conditions of release included that he was not to return

arraignment in Tucson City Court on February 14, 2008.On February 14, 2008, under Tucson City Court docket number CR 08013622, the

3 Defendant was arraigned on the charge against him, entered aplea of not guilty, and was released45

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standard conditions release form." Id.OnDecember 22, 2008, the Defendant sent aletter to the assigned city court trial judge, the

Honorable Thomas Berning, informing the judge of his intent to "commence the third annualTucson Weekly Public Forum on January 14, 2009, on Library Square..., in direct and intentionaldefiance of current Municipal Court Orders." (ROA, Letter from thePetitioner, dated December15

16 22, 2008 at p.2.) The Defendant never filed a motion to modify conditions of release in CR17 08013622, nor did he ask leave of the lower court to appear atLibrary Park on January 14,2009.18 Nor did he seek any fonn of appellate relief from the then existing conditions of release.1920 OnJanuary 14, 2009, the Defendant was arrested atLibrary Park and was charged with onecount of Interfering with Judicial Proceedings, A.R.S. 13-2810 (for failing to abide by the2122 February 14, 2008, court order setting forth his conditions of release). The Defendant was taken to232425262728

the Pima County Jail where he was arraigned on the new charge. The case was consolidated withdocket CR 08013622, assigned to the lower court, andbond was set at $1000. (ROA, Minute Entrydated January 14, 2009.) On April 9, 2010, case CR 08013622 was dismissed pursuant to theState's motion. (ROA, Minute Entry dated April 4, 2010, docket CR 08013622.)

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During thependency ofthe current case, the Petitioner filed anumber of motions, includingamotion to dismiss, alleging that the order in CR 08013622 violated his constitutional rights andwas, therefore, void and unenforceable. (ROA, Defendant's Motion toDismss, filed August 13,2010.) The State filed a timely response. (ROA, State's Response to theDefendant's Motion to

6 Dismss).

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In denying the Defendant's motion, the lower court held:The Court agrees that theunderlying order might be overbroad [and] perhaps subjectto a viable constitutional challenge. Nonetheless, the Court also agrees with theState that the Defendant's remedy was not toignore the orders but tochallenge themin the underlying cases....At oral argument, the Defendant noted that at the time of this alleged offense(01114/09) hewas w/o [sic] court appointed counsel in theunderlying cases andmaynot have been aware of the necessity to seek to modify the conditions of release orthe ability to do so. The record reflects otherwise ....For the reasons stated above, the Court denies the Defendant's Motion to Dismiss.

(ROC, Minute Entry dated, November 9,2010, Under Advisement Ruling at p. 3, 4.)On July 15, 2011, the lower court granted the Defendant's request for funds to file aspecial

action, set afiling deadline ofJuly 27,2011, and ordered the proceedings conditionally stayed. OnJuly 27,2011, the Defendant filed aPetition for Special Action but failed to file and/or serve uponthe State any Summons, Complaint, or Notice of Hearing. On August 16, 2011, the State movedto strike the Defendant's Petition for Special Action. On August 19,2011, this Court granted theState's motion to strike, and ordered thepetition dismissed without prejudice. On August 29,2011,complying with therelevant procedural rules, the Petitioner re- filed his Petition for Special Action.The State filed atimely response.

After oral argument onthe Special Action, the Court took the matter under advisement. On

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November 28,2011, the COUlidenied the Defendant's special action and sent the case back to thetrial court.

On October 29, 2012, abench trial was conducted before the trial court, after which theDefendant was found guilty. The Defendant filed aNotice of Appeal on November 8,2012. Hefiled his opening memorandum on January 11, 2013, to which the State now responds.LEGAL ARGUMENTI. THE DEFENDANT'S APPEAL SHOULD BE STRICKEN AS IT DOES NOTCOMPORT 'VITH THE REQUIREMENTS OF 17B A.R.S. SUPER. CT. CRIMINALAPPELLATE PROCEDURE RULES, RULE 8(a)(3).

I7B A.R.S. Super. Ct. Criminal Appellate Procedure Rules, Rule 8(a)(3) provides that"[m]emoranda shall include a short statement of the facts with reference to the record, a conciseargument setting forth the legal issues presented with citation to authority and aconclusion statingtheprecise remedy sought on appeal." Id.

In his statement of facts, the Defendant makes only scattered references to therecord in thiscase. The appeal does contain ahistory of theDefendant's experiences with lower courts inpreviouscases but does not provide those records or specific citations.

TheDefendant refers toseveral incidents inprevious cases to support his claim that thecourtorder at issue in this case is invalid. None of these references are applicable to the present appeal.What is relevant in the present appeal is whether, based on the record in the present case, there isany evidence that the lower court issued an invalid order. The record is absolutely devoid of anysuch evidence. In fact, the record supports the exact opposite; a lower court judge issued an arearestriction preventing him from going within 1000 feet of aspecific location.

Further, the Defendant makes several bald allegations that have no place in astatement of


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facts. For example: Item 10in the Defendant's Memorandum contains unsubstantiated accusations23456789

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against City of Tucson officials ("malfeasance" and "cronyism"). Likewise, in the footnote to item26, the Defendant offers improper commentary laced with hearsay and otherwise irrelevantcommunications with unnamed defense attomeys.

TheState respectfully requests that thewhole of theDefendant's appeal be stricken for non-compliance with 17B A.R.S. Super. ct. Criminal Appellate procedure Rules, Rule 8(a)(3) and,therefore, be dismissed. Altematively, all the Defendant's irrelevant references to previous cases,even though indicative of nothing, should be stricken from the present case.

THE LO'VER COURTS PROPERLY IMPOSEDCONDITIONS OF RELEASE ON THE DEFENDANT.

A.R.S. 13-3967(D) specifically authorizes a court to place restrictions upon a subjectreleased on bail. Those restrictions include restrictions on the person's travel, and by extension,area restrictions. See A.R.S. 13-3967(D)(2). A.R.S. 13-3967(0) provides, "[o]n application,

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thedefendant shall be entitled to have the conditions of release reviewed by thejudicial officer whoimposed them or by the court in which the prosecution is pending." (Emphasis added.)

There aretwo flaws with the Defendant's argument against the conditions of release in hiscase. First, he cites only to civil cases on injunctions but cites no authority onhow they might applyto this criminal matter. Second, he cites no authority to refute that trial courts have the power toimpose reasonable conditions of release.

Not only may acourt impose reasonable conditions of release, courts have broad authorityand may impose conditions that intrude on fundamental rights. According toState v.Kessler, 199Ariz. 83, 13P.3d 1200 (2000)

Courts have consistently upheld imposition of conditions of probation that restrict


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a defendant's freedom of speech and association when those conditions bear areasonable relationship to the goals of probation. United States v. Turner, 44 F.3d900,903 (10th Cir.) ....The question is whether there is areasonable nexus betweentheconditions imposed andthegoals to be achieved by theprobation. State v. Davis,119 Ariz. 140, 142, 579 P.2d 1110, 1112 (1978) ....A court will not "strike downconditions of release, even if they implicate fundamental rights, if such conditionsarereasonably related to the ends of rehabilitation and protection of thepublic fromrecidivism." United States v. Schave, 186 F.3d 839, 843 (7th Cir.1999).456789

10111213141516171819 he cites no authority for his conclusion. Further, asthe State notes below, the Defendant had years

Courts have broadly interpreted thejudiciary's authority to mandate conditions of releaseprovided such conditions have areasonable nexus to the goals of the restrictions. Previous courtshave upheld restrictions on adefendant fromkeeping company with his spouse, Statev.Nickerson,164Ariz. 121, 123, 791 P.2d647,649 (1978), aboyfiiend from associating with his girlfriend, Statev. Donovan, 116 Ariz. 209, 211-12, 568 P.2d 1107, 1109-10 (1977), and amother from obtainingcustody of her children. State v. Davis, 119 Ariz. 140,142,579 P.2d 1110, 1112 (1978)

In this case, it is clear that the conditions of release in this case were crafted to prevent arepeat offense at the incident location and bear a sufficiently clear nexus to the objective. Theconditions were reasonable as they covered only a 1000 foot distance from aparticular location.Though the Defendant claims he isprecluded from certain activities by the geographic restriction,

20 to challenge the order, or at least seek clarification as to what activities might be proscribed by the21 geographic limits. Curiously he has not done so until this appeal, despite having the right to raise22 this issue with the lower court.23

I I I . THE DEFENDANT IS BARRED FROM CHALLENGING THE ORDER OFPROTECTION HAVING FAILED TO CHALLENGE IT PREVIOUSLY4

25 The Arizona Court of Appeals held that if adefendant does not appeal or seek special action26relief from the court order or injunction, the defendant is barred from launching acollateral attack27

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in the case arising from the contempt charges. Chavez, 123 Ariz. 538,601 P.2d 301. The Court,2 quoting the Arizona Supreme Court, stated that: "It isasettled principle oflaw that all order issued3 by acourt with jurisdiction over the subject matter must be obeyed by the parties until that order is4

reversed by orderly andproper proceedings." Id. at540-541,601 P.2dat 303-304 citing Broomfield56789

v. Maricopa County, 112 Ariz. 565,544 P.2d 1080 (1975). There is no question that the court inthepresent casehadjurisdiction, both subject matter andpersonal, over both Dockets 08013622 and08017674. In support of its decision, the Court of Appeals alsorelied ontheUnited States SupremeCourt decision in Walker v. CityofBirmngham, 388 U.S. 307, 87 S.Ct. 1824 (1967). The Walker10

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Court stated:This COUlicannot hold that the petitioners were constitutionally free to ignore allprocedures of the law and carry their battle to the streets. One may sympathize withthe petitioners' impatient commitment to their cause. But respect for judicialprocess is asmall price to pay for the civilizing hand of law, which alone can giveabiding meaning to constitutional freedom.

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Chavez 123 Ariz. at 541, 601 P.2d at 304 quoting Walker v. City of Birmngham, Supra.The Chavez court went on to state that "In our opinion, the concept that any person, lay or

professional, may determine whether acourt order is 'void on its face' and thus susceptible tobeingignored as unconstitutional can findno justification in the law." Id. at 543,601 P.2d at 306. Assuch, the Defendant was not free to disobey the conditions of release imposed upon him simplybecause in his opinion they were void. Rather, the Defendant's recourse was to challenge theconditions when they were instituted in the respective case in which they were imposed. TheDefendant did not challenge those conditions when they were instituted, andhis is, therefore, barredfrom making a collateral challenge in the present case, a case in which the Defendant is chargedwith violating those court orders.


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CONCLUSION

For the foregoing reasons, the State requests that this Court uphold the verdict of the lower3

court. The Defendant has incorrectly stated the facts in the case. That alone should be grounds for456789

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dismissal based on non-compliance with procedural rules. Alternatively, should the COUli examinethis appeal on the merits, the State submits that the lower court issued proper conditions of release.Further, the Defendant waived the right to challenge these conditions in this appeal having notavailed himself of the opportunity to make these challenges at the trial court level in the case inwhich they were imposed.

RESPECTFULLY SUBMITTED this I(~ay of February, 2013.STATE OF ARIZONA

Copies ofthe foregoing mailed and/or delivered this~ay of February, 2013 to:

The Honorable _Pima County Superior CourtThe Honorable Thomas Berning/RespondentTucson City Court

Roy Warden,Petitioner Pro Se1015 W. Prince Road, #131-182Tucson, AZ 8570525

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WFMlAP/amRe: State v. Warden Appellee's Responsive Memorandum Docket #NO.09006068

state resp0nse to warden appeal of transparently invalid order of the court.pdf

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