*1 458 statutory provision requires tax on it to collect having pay for failed
cause 149-50, v. facility. 153- amount as a tax. Ariz. State Tax Comm’n purchases for its Id. at 389, 392-93, 339-40, Corp., Ariz. 291 P.2d 829 343-44. Garrett 79 P.2d at (1955). 208, 210-11 exemption claims an 33 Interlott routinely privilege tax law in it reviews it business. It
each state in which does CONCLUSION however, affirms, actually re- never judgment 37 The is affirmed. law, regula- specifically the viewed Arizona argu- forming estoppel for tions the basis its A. ANN CONCURRING: SCOTT lacking. ment. “Reasonable cause” is TIMMER, NEWTON, Judge A. FRED by unpersuaded 34 We are likewise Judge Tempore.4 Pro argument some Interlott’s assessment by language in how is the absence of barred indicating that a tax would
contract forms posits taxpayer It misled due. penal agency not be state should liable ties, yet specify the Arizona fails what
Lottery did to mislead it. 1277 72 P.3d inapplicable argu- Equally are the when punishment is unwarranted ments Arizona, Appellee, STATE of taxpayer wrong pay chooses the tax v. Interlott follows instructions. the State’s paid provides no no evidence of taxes DARELLI, Appellant. Victor Carlo following from instructions ADOR. 02-0432. No. CA-CR ¶36 Alternatively, argues Interlott Arizona, Appeals Court of light penalties inappropriate are 1, Department A. Division from inability collect a tax sales argument is unfounded. Re State. This July 2003. ceipts from with the State are transactions City July exempt nor nontaxable. neither As Amended Ariz.App. Tempe Corp., E. Webb Del (holding P.2d city may impose privilege transaction tax on
independent although underlying contractor agency),
construction contracts
state
modified,
Ariz.App.
pay was based the Lease Interlott per Agreement’s limitation of rent to $205 Garbarino, J., concurring opinion, filed per is not machine month. The seller part. tax, dissenting in part, and no agent of collect the State rized Arizona Court of Coconino The Honorable A. participate County Superior Appeals as a Fred judge pro tempore Newton, Court, order of the Chief autho- of the Justice Const. & Supp.2002). art. of the Arizona § 31; A.R.S. § 12-145 et Court. seq. (1992 *2 Goddard, Terry Attorney By General Howe, Counsel, Randall M. Criminal Chief Section, Appeals Phoenix L. Ra- and Vincent bago, General, Tucson, Attorney Assistant Attorneys Appellee. for Jensen, Prescott, Attorney Sherman Appellant.
OPINION
BARKER, Judge.
¶ 1 We hold effectively implement cut-off date, by rejecting potential pleas except charges, solely based posture procedural issue. ease History Factual and Procedural 25, 2001, appellant October On charged aggravated two counts of as- (Counts 2) sault and one count of deadly disorderly weapon conduct with a (Count 3). These arose out aof dispute domestic June 2001 in which victim, C., appellant struck the Richard mul- tiple in the times face. He also threatened gun large two individuals other with a knife. trial, day jury 3 On the first while dire, voir awaiting
was assembled get to in time to [appellant] couldn’t meet prosecutor asked counsel whether defense resolving appellant would be that deadline. interested disorderly pleading guilty to the case suggestion morning, coming up, This After forfeiting conduct and his firearm. made; about spoke [appellant] it. *3 discussing proposal appel- with the State’s I back in and wanted to make came sure lant, counsel that his client defense indicated offer, possible that I understood the receptive proposed to the but need- offer offer, my correctly. understand- And it’s Ac- clarification on certain of the terms. ed willing to ing prosecutor] was call [the cordingly, prosecutor suggested that al- the get approval for that supervisor to her though approval did not she have the And extent that suggestion. so to the the offer, super- willing would be to call her she may and appreciate under- Court’s view —I approv- and visor for the needed clarification view, I but believe it stand the Court’s al. separation may go against grain the point, 4 At that court became aware the powers. though negotiations even of the status why I wanted it on Court]: That’s [The plea agreement had not been sub- a formal record. judge told counsel mitted. The both judge what hearing 6 After that, jurors had al- prospective prosecutor accept, the would and would not assembled, ready he been summoned proceed: ready that he to indicated only accept plea indictment or would Honor, Otherwise, just I was talk- charges. of all Your [Prosecutor]: a dismissal go day. ing outside sort [defense counsel] to trial that same The case would contact explained: it out. I’d have to threw I don’t and so forth to do it. have victims probably 60 or [The Court]: now have any objection proceeding with the trial people out there assembled today. ready go. We’re beginning to be going courtroom. We’re my position, in a the voir dire. It’s prosecutor To the extent this, time, at this that one of two like seriously that the were claimed things happen. can plea negotiations, the court believed pursuing trial, jury than the We can have —other In its of whether otherwise. characterization plead indict- [appellant] guilty can to the simply con- plea negotiations were serious ment, the State could dismiss the case. jecture, addressed issue occur, things If one of those two doesn’t directly and stated: jury going trial. we’re to have the then negotiations] on [the I did status want It have informed counsel of that. I’ve thought had I seri- the record because negotiation, but that’s further foreclosed today, implications. I also look- ous And I it. way see it, on at it as serious ing back still look added.) (Emphasis trial court today is my position possibility, acknowledged that his announcement it was. same as likely plea negotiations. terminate objected to Defense counsel state of I know what the State’s mind don’t into judge’s statement as “an intrusion was, it was a far as serious whether clause”; namely, powers separation of though not. But I took it as there offer or rejection judge, by the trial announced possibility that was the serious further (other guilty plea grounds, procedural might place that negotiation take could guilty charges) was “an than agreement. in some result prosecutor’s role to deter- into intrusion added.) (Emphasis make a offer.” mine whether not to plea negotiations, status of the As to the explained more 8 The also explained: counsel why defense terminated position his he detail pos- of a “serious the context made initial had been Again, [an] offer plea agreement could be sibility” that a on it. yesterday with a deadline e-mail time, right tional reached. He indicated that save jurors
given
press
prospective
of 60 to 70
State v.
required
State is not
offer one.
courtroom,
waiting
1374, 1376
he would Jackson,
821 P.2d
170 Ariz.
rejected any plea agreement
that did
However,
(App.1991).
plea agreements are
charges:
either admit
or dismiss
process and
part
“an
of the criminal
essential
expressed
[appel-
As I
it to
and to
counsel
judicial economy, protect
can
enhance
record,
case,
in this
lant]
State,
the ends of
resources
serve
time,
circumstances,
under those
defendant,
justice
and the
for the
the State
only position
certainly
left for the
Martin,
Court —
Espinoza
victim.”
could have
into a writ-
entered
(quoting
Certainly
Agreement.
ten Plea
could
(Williams),
Superior
Court
*4
and I
proposed
have
to the Court
could
(1980)
577,
928,
(rejected
611
930
P.2d
I
prevented
that. But was at-
have
Court,
grounds,
Superior
130
other
Smith
because, candidly,
tempting to save time
(1981))).
498,
635 P.2d
500
thing
agree-
in
the
that could be
that
parties
to
in
participate
When
ne
elect
acceptable
would
ment that
have been
to
gotiations,
Rule of
Proce
Criminal
a,
point
at that
would be
dis-
Court
(“Rule 17.4”) governs.
parties’
dure 17.4
The
charges,
parties
missal
that
right
provid
negotiate
to
is
that,
agreeing
were
to do
defendant
17.4(a):
may
ed
in
Rule
pleading guilty
to
was
all
in
negotiate concerning,
agree
an
and reach
opinion
And I
indictment.
on, any aspect
negotia
ment
If
the case.
possibilities
go-
neither
those
were
successful,
tions are
ing
so,
Agreement
to
Plea
17.4(b).
writing.
reduced
The court
to
Rule
therefore,
why
expressed
that’s
it the
knowingly
determines whether
intel
way I did.
17.2,
ligently made. Ariz. R.Crim. P.
17.3
added.)
(Emphasis
17.4(c). Then,
the court determines
¶
plea negotiations stopped,
9 With
reject
“accept or
whether to
the tendered
proceeded
case
to trial. Appellant was con-
17.4(d).
negotiated plea.” Rule
Our su
aggravated
charged
victed of
assault as
preme
spoken
court
on what
has
1,
Count misdemeanor assault as a lesser-
judge
give in
consideration a trial
must
de
2,
disorderly
included
to Count
offense
termining
to
how
deadly weapon
charged
conduct with a
17.4(d).
under Rule
appeal
This
Count 3.
followed. We have
6,
jurisdiction pursuant to
Section 9
Article
¶
12
Espinoza,
the Arizona
the Arizona Constitution and Arizona Re-
policy adopted
Court considered whether a
(“A.R.S.”)
vised Statutes
sections 12-
by superior
judges summarily rejecting
court
120.21(A)(1) (2003),
(2001),
13^031
and 13-
plea agreements
stipulated
containing
4033(A)(2001).
Ariz. at
sentences violated Rule 17.4. 182
supreme
judge to charges ... [that] dismissal of the the negotiated merits of sideration pleading guilty to all defendant [was] determining whether his an- charges.” further He noted reject it. plead to nouncement that either “may dismiss have foreclosed B. The Issue in this Case. way I see but that’s the negotiations, further ease, appellant argues 15 In this it.” abused its discretion that the court (based decision to terminate solely that a 18 The announcing fact office, bargaining prosecutor’s with the waiting) that it lies jury panel was assembled Morse, judge. not State v. only agreement in which accept plea (“A indictment, deei- guilty to the appellant plead “can prosecutor’s adopted to cut allows individual trial sion within off a rule which office (or whole) judges superior begins court as a bargaining the time trial fol- reject considering plea agreements without logically lows from one of the reasons for fact, agreements. judicial the merits of those In engaging bargaining: econo- Hare, trials.”) plain supreme our made my (empha- through the avoidance of authority agree- added). rule-making as to sis The trial erred when he ments that court: rests with self-imposed unilaterally proce- announced a precluded effectively Following adoption dural which amended rule constitution, presenting giv- from 1960 state this court power him en that was entitled to individualized con- exclusive make rules relative procedural to all on the merits. matters court. We sideration rule-making power may this have held that Policy Impact C. Public and the supplemented superseded by Jury. Superior this con- Court. reenforced position adopted stitutional when we Rule justifiably 19 The trial judge was Procedure, Arizona Rules of Criminal impact pro concerned about the (1973): 17 A.R.S. jurors.1 ceedings prospective By have on “Any make and amend rules ruling, do suggest this we that the trial practice governing its not inconsistent ability has lost the his to control or her with rules. No shall these such rule proceedings courtroom or that trial must be approved become until writ- effective delayed complet to be ing by Supreme Court.” fact, proposition. ed. we adoption This rule allows of local rules of delay need to complete There is no a trial to practice procedure, but with our negotiations. When faced a last approval. *6 plea approve we did not request negotiations, minute for Since a tidal (and should) guidelines, they did not become effective. proceed can most often forward with the merits of man (citations 542, 133 652 Ariz. at P.2d at 1389 dating proceed the trial as scheduled. omitted). judge’s The determination negotiations may place Plea take before or reject pleas upon depending consideration jury, after the selection of and indeed agreement the time received rests daily or proceedings. before after What (not purely procedural grounds on reject the trial plea cannot do is a plea being suggested pro- merits of the or (or agreement negotiations) terminate posed) authority and rule-making violates the self-imposed procedural due to a rule that Supreme vested in Arizona Court. gives no “individualized consideration” to the ¶ 21 recognize jurisdictions other (or plea agreement merits of a prospec upheld judge’s reject have a trial decision to plea agreement being negotiated). tive jurisdic- plea agreements. last minute These there is maintaining Whether wisdom not in tions cite the interests of an adopting particular cut-off in docket, a either a eliminating unjustifiable efficient ex- county office, attorney’s judicial penses delay, promoting the effec- whole, jurors branch as a is not the issue before us tive utilization and witnesses prosecutor Grove, seeking this The is not reasoning. People case. them See v. 455 “plea 439, policy 547, enforce cut-off’ Mich. other 566 N.W.2d 558-60 prosecutorial policy (holding limits accept trial court’s refusal plea negotiations in which may day time frame defendant’s one before place. supreme Neither take has our court trial and month over one after cut- However, herein, (that charges 1. we there as discuss are other statement all either be admitted or dismissed), addressing appropriate prospec- means of concern the case be the assembled 17.4(a) violating parties' rights. jurors just without Rule tive would be dismissed as would (that judge’s proposed solution event dismissed in the that a such as that Thus, negotiated accepted. either be to the case be were the trial dismissed) judge's away approach imposing did not resolve Even if the this. State did not do with agreed judge’s prospective jurors’ the defense time.
464 Remedy. 2. proper proce-
off date was since defendant’s judicial “outweighed by rights dural Donald, 406, In 198 23 scheduling of trial discretion control the ¶ 1, (App.2000), 1197 this procedures plus ... the broad interests of loss favor considered whether the of a ju- docket control and effective utilization plea bargain precipitated able ineffective witnesses.”); Austin, People rors and 209 assistance of counsel inflicted “constitution (1995), Mich.App. N.W.2d ally significant injury upon a defendant who Grove, grounds by rev’d on other 566 N.W.2d (holding holding a fair In that it at that trial has received trial.” court’s decision to day did, offered one we that a .be- considered confront pleas fore trial and after the cut-off date power with has ed this issue “fashion appropriate because allowed which, necessary remedy ap if suitable court to control its docket and because it may propriate, include an order to reinstate simplicity procedure, fairness in “secure[d] ¶ 30, Id. at 10 P.3d at offer.” administration, unjust- and the elimination analysis, we the Donald considered Cobb, expense delay.”); People v. ifiable determining four factors2 whether Cal.App.3d Cal.Rptr. 718- requiring prosecutor court’s to re order (“When pleas [on taken offer instate his to defendant would trial], day practice may first well separation powers de violate the clause a domino effect on other cases. It leave fined Article III of Constitu courtrooms vacant if the calendar has Id. P.3d at tion. 1203. Ulti Excusing trials. un- failed to over schedule mately, upon balancing these we found or, jurors expected pleas used when do not factors, a court’s reinstatement order materialize, announcing there insufficient significantly not “so encroach the execu judges or courtrooms for the balance of the department tive amount to unconsti task.”). calendar, judicial an unpleasant usurpation power.” Id. at tutional these reasons are the Whether ¶ 44, 10 P.3d at appropriate change basis for a rule is not an appropriate inquiry for this court. That is a case, appellant 24 In that in contends for the Arizona Court to matter Donald, “only effective accordance rule-making authori- pursuant to its consider remedy ... is to return the *7 ty. Sup.Ct. Ariz. R. 28. Just as it is not See quo improper the court’s status before domain, policy our do these consider- neither plea] negotiations ... [and interference [with judge, a absent a rule from ations allow trial this the that] should order State Court Court, contrary the to act present proposed supervisors to the offer the Espinoza holdings and Hare. of both the County Attorney’s in office and to the the authorities, judges in those Ari- Under pro- victims in accordance with its standard required give zona con- are “individualized State, however, cedures.” The contends agreements presented plea sideration” to by inapplicable and that an Donald is order at Espinoza, 182 Ariz. them. “reinstating jilea” would violate the court the not, they they at If Id. Like- do err. separation More- powers of doctrine. the wise, by implementing a termi- over, applicable, even if Donald the plea negotiations, good faith nates con- that the trial must State contends an- particular will not consider hearing a rein- duct a to determine whether merits, ticipated plea on rule “indi- the the plea necessary to the offer is statement of Espinoza in consideration” vidualized remedy deprivation an unconstitutional ef- erred in is violated. The Hare fective counsel. doing so here. Donald, “(1) at 198 Ariz. the nature of the action.” factors were essential These exercised; (2) degree of power (quoting the ... con- ex rel. the at 1203 Woods P.3d exercising Block, assumes] in one branch [that trol P.2d 189 Ariz. another]; power objective [of ... [of (1997)). exercise]; consequences practical [and] GARBARINO, agree appellant. Judge, concurring part, If in we have Donald, power, as discussed order dissenting part. plea
reinstatement of offer for error respectfully 28 I dissent. In contrast to (i.e. prose- behalf of an officer executive Donald, a plea there was never cutor), certainly power to cor- we have the most, At table this case. there was rect of a the actions who became suggestion by prosecuting attorney addition, negotiations. plea involved in approval she would seek the of her given that ineffective assistance counsel is supervisor plea agreement. to offer a It was here, argu- not at issue we find the State’s point at that court advised the hearing ment that must the court conduct accept parties regarding In- inapplicable. this is matter guilty or charges. a dismissal Had the stead, it is within our to order that discretion defendant believed the court to be error parties quo returned to at be the status reviewing not whatever inappropriately time the trial inter- submitted, may have have peti- he should negotiations. fered with Lest there be special Although tioned for action relief. any confusion, we will specific be agree majority with the that the trial court regard. erred, I do not believe that should we now ordering We are set aside a conviction valid so that the suggested by prosecutor the individual can, so, if willing to do enter into offered to the defendant. was not That plea negotiations. I would affirm the convic- negotiations status of the time of tion. The status of interference. prosecutor was that individual had set
forth a
proposal
that was
sub-
(a)
ject
approval
of the individual
(b)
prosecutor’s supervisor
comment
TIMMER, Judge. above, 7,¶ supra terminating plea negotiations 3. As we note the trial court be addressed must rejected argument subsequent action, the State’s by special by way appeal, and not really taking there were place. no serious court, neither raised in the tidal referenced The trial court determined briefs, nor asserted manner the State possibility “there was the serious that further appeal. Accordingly, the issue is waived in negotiation might place could take result in Loan, particular case. See Van v. Van Loan agreement.” some 116 Ariz. ("The failure raise an issue either at the trial agrees
4. The dissent that the trial erred in appeal level or in briefs a waiver constitutes terminating negotiations, but contends that issue.”). by special this error can prior be asserted action argument to trial. The an error in