Criminal

RULE	AFFECTS	SUMMARY AND IMPACT

Rule 12.10 R-13-0031	Superior Judges Clerks Administrators	Summary: Criminal Rule 14.1(d) allows the presiding judge of a county to issue an order that the superior court will not hold arraignments in felony cases. Yavapai is the only county to do so. In this circumstance, Criminal Rule 12.10(a) would require defendant’s appearance before a magistrate; but Rule 12.10(a) does not provide a time within which the appearance must occur. Therefore, this amendment to Rule 12.10(a) requires the defendant’s appearance before a magistrate within ten days of the return of an indictment. Impact: Information only, except that Yavapai County must now conduct arraignments for indicted defendants within the time specified in this rule amendment.

Rule 31.17(c)(1) R-13-0050	Superior Judges Clerks Administrators	Summary: Under current capital case practice, the Arizona Supreme Court issues an execution warrant concurrently with its denial of a petition for review of the trial court’s denial of a first petition for post-conviction relief. The Court upon issuing that warrant distributes it to a variety of stakeholders in the judicial and executive departments of state government and in the federal court system. A defendant typically seeks federal habeas relief within days after the Court issues a warrant, and when the federal district court assumes jurisdiction, it promptly stays the execution warrant and must notify these multiple stakeholders. This amendment defers the Court’s issuance of the execution warrant for 15 days after the denial of a petition for review on the PCR. This interim permits the defendant to request federal habeas relief, which as a practical matter makes the Arizona Supreme Court’s immediate issuance of the warrant unnecessary. Impact: Information only.

Rule 31.24 R-14-0004	Superior Justice Municipal Judges Clerks Administrators	Please see the discussion of this petition under the Supreme Court Rules, infra.

Rule 24.2 R-14-0005	Superior Justice Municipal Judges Clerks Administrators	Summary: In November 2013, the Court issued order R-11-0033, which amended ER 3.8 and ER 3.10. While ER 3.8(h) requires a prosecutor to take appropriate steps to set aside the conviction of an innocent defendant, the Rules of Criminal Procedure did not provide a specific mechanism for the prosecutor to comply. (Rule 24.2 requires action to vacate a judgment of conviction within 60 days after the entry of judgment, whereas the recent Ethical Rule amendments contemplate action that could be taken years after a conviction.) These new amendments to Rule 24.2 permit the State to file a motion to vacate judgment “at any time” after the entry of judgment and sentence. The amended rule also provides two grounds for the motion: (a) that a defendant was convicted of an offense that the defendant did not commit; or (b) that the conviction was based on erroneous application of the law. Impact: Although these motions may rarely be filed, the court occasionally may need to consider such motions years after the entry of judgment.

Rule 12.5 R-14-0006	Superior Judges Clerks Administrators	Summary: Currently, when a witness who appears before a grand jury is in custody, the prosecutor files a motion with the court to allow a law enforcement officer or detention officer to accompany the in-custody witness during the grand jury session. This amendment to Rule 12.5 allows the attendance of an officer in these circumstances and avoids the need to file a motion. Impact: Information only.

Rule 32.12 R-14-0007	Superior Judges Clerks Administrators Probation officers	Summary: A.R.S. §13-4240 gives defendants convicted of a felony offense an opportunity to petition the court for DNA testing of evidence. The evidence must be in the possession or control of the court or the state, be related to the investigation or prosecution that resulted in the judgment of conviction, and may contain biological evidence. This new rule establishes procedures for the court and parties to follow upon the making of a request, and incorporates the Supreme Court’s holding in State v. Gutierrez, 229 Ariz. 573 278 P.3d 1276 (2012) regarding post-conviction hearings involving DNA testing. Impact: This new rule details the post-conviction procedures for requesting that evidence be tested for DNA. Among those procedures are the following. A petition for testing must be filed under the original criminal case number. (The request is denominated in the rule as a “petition.”) The court may appoint counsel for an indigent petitioner at any time during proceedings under this rule. After considering the petition and the State’s response, the court “shall” order DNA testing if three specified factors apply; and it “may” order testing if three specified factors apply. (Two of those three “may” factors are the same as “shall” factors.) If the court orders testing pursuant to this section, the court must select a laboratory that meets the standards of the DNA advisory board to conduct the testing and shall order the method and responsibility for payment as necessary. The court may order either party to produce results of prior DNA testing, and if the court orders testing, it must order the State to preserve relevant evidence. The court may enter other specified orders, including the type of DNA analysis to be performed. The rule further describes the need for subsequent evidentiary hearings and other orders the court may enter upon receiving the test results.

Rule 2.3 R-14-0014	Superior Justice Municipal Judges Clerks Administrators	Summary: Rule 2.3(a) was drafted in 1975 (long before electronic filing came into existence), and requires a law enforcement officer to appear before a magistrate to take an oath. The amendments add the following language to the rule: “The constitutional requirement that a complaint be made under oath is satisfied by an electronic oath, or affidavit containing an electronic signature, made by a law enforcement officer or agency representative under penalty of perjury.” Impact: Courts should assure that electronically-filed complaints include the electronic oath or an affidavit containing the electronic signature.

Rule 26.9 and Rule 31.3 R-14-0021	Superior Justice Municipal Judges Clerks Administrators Probation officers	Summary: This rule petition followed the Court’s 2014 opinion in State v Whitman. The amendment to Rule 31.3 (“time for taking appeal”) clarifies that “entry” of judgment occurs at the time the judge pronounces sentence in open court (and not when the clerk files a minute entry that memorializes the judgment and sentence.) The amendment to Rule 26.9 is to the comment, not to the body of the rule; the amendment deletes obsolete language in the comment to clarify that a trial judge should not sentence a defendant in absentia “absent extraordinary circumstances.” Impact: Information only.

RULE

AFFECTS

SUMMARY AND IMPACT

Rule 12.10

R-13-0031

Superior

Judges
Clerks
Administrators

Summary: Criminal Rule 14.1(d) allows the presiding judge of a county to issue an order that the superior court will not hold arraignments in felony cases. Yavapai is the only county to do so. In this circumstance, Criminal Rule 12.10(a) would require defendant’s appearance before a magistrate; but Rule 12.10(a) does not provide a time within which the appearance must occur. Therefore, this amendment to Rule 12.10(a) requires the defendant’s appearance before a magistrate within ten days of the return of an indictment.

Impact: Information only, except that Yavapai County must now conduct arraignments for indicted defendants within the time specified in this rule amendment.

Rule 31.17(c)(1)

R-13-0050

Superior

Judges
Clerks
Administrators

Summary: Under current capital case practice, the Arizona Supreme Court issues an execution warrant concurrently with its denial of a petition for review of the trial court’s denial of a first petition for post-conviction relief. The Court upon issuing that warrant distributes it to a variety of stakeholders in the judicial and executive departments of state government and in the federal court system. A defendant typically seeks federal habeas relief within days after the Court issues a warrant, and when the federal district court assumes jurisdiction, it promptly stays the execution warrant and must notify these multiple stakeholders. This amendment defers the Court’s issuance of the execution warrant for 15 days after the denial of a petition for review on the PCR. This interim permits the defendant to request federal habeas relief, which as a practical matter makes the Arizona Supreme Court’s immediate issuance of the warrant unnecessary.

Impact: Information only.

Rule 31.24

R-14-0004

Superior
Justice
Municipal

Judges
Clerks
Administrators

Please see the discussion of this petition under the Supreme Court Rules, infra.

Rule 24.2

R-14-0005

Superior
Justice
Municipal

Judges
Clerks
Administrators

Summary: In November 2013, the Court issued order R-11-0033, which amended ER 3.8 and ER 3.10. While ER 3.8(h) requires a prosecutor to take appropriate steps to set aside the conviction of an innocent defendant, the Rules of Criminal Procedure did not provide a specific mechanism for the prosecutor to comply. (Rule 24.2 requires action to vacate a judgment of conviction within 60 days after the entry of judgment, whereas the recent Ethical Rule amendments contemplate action that could be taken years after a conviction.)

These new amendments to Rule 24.2 permit the State to file a motion to vacate judgment “at any time” after the entry of judgment and sentence. The amended rule also provides two grounds for the motion: (a) that a defendant was convicted of an offense that the defendant did not commit; or (b) that the conviction was based on erroneous application of the law.

Impact: Although these motions may rarely be filed, the court occasionally may need to consider such motions years after the entry of judgment.

Rule 12.5

R-14-0006

Superior

Judges
Clerks
Administrators

Summary: Currently, when a witness who appears before a grand jury is in custody, the prosecutor files a motion with the court to allow a law enforcement officer or detention officer to accompany the in-custody witness during the grand jury session. This amendment to Rule 12.5 allows the attendance of an officer in these circumstances and avoids the need to file a motion.

Impact: Information only.

Rule 32.12

R-14-0007

Superior

Judges
Clerks
Administrators
Probation officers

Summary: A.R.S. §13-4240 gives defendants convicted of a felony offense an opportunity to petition the court for DNA testing of evidence. The evidence must be in the possession or control of the court or the state, be related to the investigation or prosecution that resulted in the judgment of conviction, and may contain biological evidence. This new rule establishes procedures for the court and parties to follow upon the making of a request, and incorporates the Supreme Court’s holding in State v. Gutierrez, 229 Ariz. 573 278 P.3d 1276 (2012) regarding post-conviction hearings involving DNA testing.

Impact: This new rule details the post-conviction procedures for requesting that evidence be tested for DNA. Among those procedures are the following.

A petition for testing must be filed under the original criminal case number. (The request is denominated in the rule as a “petition.”) The court may appoint counsel for an indigent petitioner at any time during proceedings under this rule.

After considering the petition and the State’s response, the court “shall” order DNA testing if three specified factors apply; and it “may” order testing if three specified factors apply. (Two of those three “may” factors are the same as “shall” factors.) If the court orders testing pursuant to this section, the court must select a laboratory that meets the standards of the DNA advisory board to conduct the testing and shall order the method and responsibility for payment as necessary.

The court may order either party to produce results of prior DNA testing, and if the court orders testing, it must order the State to preserve relevant evidence. The court may enter other specified orders, including the type of DNA analysis to be performed. The rule further describes the need for subsequent evidentiary hearings and other orders the court may enter upon receiving the test results.

Rule 2.3

R-14-0014

Superior
Justice
Municipal

Judges
Clerks
Administrators

Summary: Rule 2.3(a) was drafted in 1975 (long before electronic filing came into existence), and requires a law enforcement officer to appear before a magistrate to take an oath. The amendments add the following language to the rule: “The constitutional requirement that a complaint be made under oath is satisfied by an electronic oath, or affidavit containing an electronic signature, made by a law enforcement officer or agency representative under penalty of perjury.”

Impact: Courts should assure that electronically-filed complaints include the electronic oath or an affidavit containing the electronic signature.

Rule 26.9 and Rule 31.3

R-14-0021

Superior
Justice
Municipal

Judges
Clerks
Administrators
Probation officers

Summary: This rule petition followed the Court’s 2014 opinion in State v Whitman. The amendment to Rule 31.3 (“time for taking appeal”) clarifies that “entry” of judgment occurs at the time the judge pronounces sentence in open court (and not when the clerk files a minute entry that memorializes the judgment and sentence.)

The amendment to Rule 26.9 is to the comment, not to the body of the rule; the amendment deletes obsolete language in the comment to clarify that a trial judge should not sentence a defendant in absentia “absent extraordinary circumstances.”

Impact: Information only.