Opinion
No. 1 CA-CV 11-0616 A
02-14-2012
HEATHER LYNN JASKOWIAK, Petitioner/Appellant, v. HONORABLE VIRGINIA L. RICHTER, Magistrate of the Superior Court in and for the County of Maricopa, Respondent Judge, STATE OF ARIZONA, Real Party in Interest.
James J. Haas, Maricopa County Public Defender By John Sullivan, Deputy Public Defender Attorneys for Petitioner/Appellant William G. Montgomery, Maricopa County Attorney By Andrea L. Kever, Deputy County Attorney Attorneys for Real Party in Interest
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.34
DECISION ORDER
Appeal from the Superior Court in Maricopa County
Cause No. LC2011-000218
The Honorable Joseph C. Kreamer, Judge
APPEAL DISMISSED
James J. Haas, Maricopa County Public Defender
By John Sullivan, Deputy Public Defender
Attorneys for Petitioner/Appellant
Phoenix
William G. Montgomery, Maricopa County Attorney
By Andrea L. Kever, Deputy County Attorney
Attorneys for Real Party in Interest
Phoenix TIMMER, Judge
¶1 Jaskowiak appeals the superior court's denial of relief in her special action challenge to Commissioner Virginia L. Richter's denial of a motion to dismiss criminal charges based on events at Jaskowiak's initial appearance. Essentially, Jaskowiak contends she had a Sixth Amendment right to counsel at the initial appearance, and the magistrate judge erred by setting her preliminary hearing date outside the required timeframe.
¶2 The State has moved to dismiss this appeal because prior to briefing in this court, Jaskowiak entered a guilty plea for possession of drug paraphernalia pursuant to a plea agreement in which she waived her right to appeal. Thereafter, the court sentenced her to a term of imprisonment. Jaskowiak addressed the mootness issue both in her opening brief and in a response to the motion to dismiss. She urges us to decide the issues regardless of the fact our decision will not affect her because, she argues, her case falls within exceptions to the mootness doctrine.
¶3 Although not mandated by the Arizona Constitution, our courts will generally "refrain from considering moot or abstract questions." Fraternal Order of Police Lodge 2 v. Phx. Emp. Relations Bd., 133 Ariz. 126, 127, 650 P.2d 428, 429 (1982). A question is moot when any action a reviewing court may take "will have no effect on the parties to the action." Lord v. City of Tucson, 10 Ariz. App. 54, 55, 455 P.2d 1004, 1005 (1969). Because the court has entered a judgment of conviction and imposed sentence and Jaskowiak has waived her appeal rights, the criminal process has concluded, and we can no longer remedy her grievances. In short, Jaskowiak "no longer has a legally cognizable interest in the outcome" and the matter is moot. In re Weeks, 134 Ariz. 521, 523, 658 P.2d 174, 176 (1983). The mootness doctrine, however, is a discretionary exercise of judicial restraint, and Arizona courts may decide an otherwise moot case when the issues presented are either of great public importance or are capable of repetition yet evade review. Phx. Newspapers, Inc. v. Molera, 200 Ariz. 457, 460, ¶ 12, 27 P.3d 814, 817 (App. 2001). Jaskowiak contends both exceptions apply in this case, and we address them in turn.
¶4 Jaskowiak argues we should resolve the issues raised in her appeal because "they are of great public importance." We disagree. Issues are of "great public importance" if they are important to the public at large and not just an individual. See, e.g. , Fraternal Order of Police Lodge 2, 133 Ariz. at 127, 650 P.2d at 429 (electing to consider a moot question because of its "great importance to the hundreds of thousands of people living or working in Phoenix because [the Phoenix Employee Relations Board] deals with all employees of that city"). Although providing guidance to magistrates conducting initial appearances in other cases serves the public, see Corbin v. Rodgers, 53 Ariz. 35, 39, 85 P.2d 59, 61 (1938), resolving the factually driven issues in this case would not provide meaningful assistance. Our supreme court has already provided guidance on the primary issue raised on appeal by holding, "no right to an attorney exists at the initial appearance on the day of the arrest." State v. Cook, 150 Ariz. 470, 475, 724 P.2d 556, 561 (1986). The other issues presented by Jaskowiak - whether the magistrate converted the initial appearance into a "critical stage" and erroneously set the preliminary hearing date - are fact-driven and consequently of limited applicability to future proceedings.
While we recognize that the supreme court appeared to specify that the defendant has no right to an attorney at an initial appearance on the day of arrest , the reasoning the court used to draw this conclusion is applicable to all initial appearances - a largely procedural and ministerial proceeding when a defendant is initially advised of the right to counsel and counsel is appointed. Cook, 150 Ariz. at 475, 724 P.2d at 561; Ariz. R. Crim. P. 4.2.
¶5 Jaskowiak additionally contends we should resolve the issues presented by her appeal because they are "capable of repetition yet evading review." Again, we disagree. We are not aware of any impediment to raising these issues in a future appeal, as Jaskowiak did in her case. The issues are only moot because she entered a plea agreement; other defendants with similar issues who do not enter such agreements will be able to assert these issues. Indeed, in her motion to supplement briefs filed with this court, Jaskowiak states that another case exists with the same issues and the issues are "repetitive" in the superior court.
CONCLUSION
¶6 For the forgoing reasons, we dismiss this appeal as moot. We also vacate our prior orders accelerating this appeal and scheduling it for conference and oral argument on February 21, 2012. Finally, we deny as moot Jaskowiak's motion to supplement her brief.
____________
Ann A. Scott Timmer, Judge
CONCURRING: ____________
Maurice Portley, Presiding Judge
____________
Andrew W. Gould, Judge