Opinion
No. 1 CA-CR 18-0556
03-05-2019
STATE OF ARIZONA, Appellee, v. ADAM JOSEPH TRZECIAK, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee The Zickerman Law Office, Flagstaff By Adam Zickerman Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Yavapai County
No. P1300CR201701299
The Honorable Patricia A. Trebesch, Judge
JURSIDICTION ACCEPTED; RELIEF DENIED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
The Zickerman Law Office, Flagstaff
By Adam Zickerman
Counsel for Appellant
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge James P. Beene joined.
CATTANI, Judge:
¶1 Adam Joseph Trzeciak seeks review of the superior court's order holding him in criminal contempt of court and imposing as punishment 60 days in jail and 250 hours of community restitution. Trzeciak's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), certifying that, after a diligent search of the record, he found no arguable question of law that was not frivolous. Trzeciak was given the opportunity to file a supplemental brief, but did not do so. Counsel asks this court to search the record for reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). After reviewing the record and for reasons that follow, we accept jurisdiction over this matter as a special action, but deny relief.
FACTS AND PROCEDURAL BACKGROUND
¶2 Trzeciak pleaded guilty to attempted sexual assault, two counts of surreptitious photographing, and one count of possession of drug paraphernalia. The superior court suspended sentence and imposed five years' supervised probation with one year in jail. During the sentencing hearing, the court orally (and in substantial detail) admonished Trzeciak about the scope and importance of the term of probation prohibiting any contact with the victim:
I am going to order that you not have any contact with the victims. And I'm talking about . . . any messages to the victim at all.
. . . [T]hat's a pretty blatant violation if you have any contact.
If you see her in the community, you go the other way. You don't exchange words. You don't exchange glances. You don't signal. You don't flip anybody off. No contact means no contact.
. . . .
. . . She has a right to be free of [any contact or harassment]. She has the right to leave these premises and be safe in her surroundings.
Trzeciak expressly acknowledged that he understood this restriction.
¶3 Nevertheless, immediately after the sentencing hearing ended—while still in the courtroom, with the judge on the bench—Trzeciak turned to the victim and mouthed "fuck you" at her. The court recalled the case and heard testimony from the victim, the victim advocate, and an attorney in the courtroom regarding Trzeciak's conduct. The court continued the contempt hearing, and defense counsel subsequently presented evidence and argument on Trzeciak's behalf, specifically noting Trzeciak's contention that the victim had prompted his conduct by taunting him. The court found Trzeciak's conduct contumacious both as disobedient to the just-issued no-contact order and as unreasonable conduct lessening the dignity and authority of the court. See Ariz. R. Crim. P. 33.1(a), (b); see also Ariz. Rev. Stat. ("A.R.S.") § 12-864. As punishment, the court imposed 60 days in jail, consecutive to the jail term imposed in the underlying criminal case, and 250 hours of community restitution upon release. Trzeciak filed a notice of appeal from the contempt order.
JURISDICTION
¶4 As a preliminary matter, this court lacks appellate jurisdiction over Trzeciak's appeal. Certain criminal contempts (those based on conduct that of itself constitutes a criminal offense) are appealable. See A.R.S. §§ 12-861 to -863. But Trzeciak's conduct was not inherently criminal, and the court's contempt order in this case was grounded instead on § 12-864 and Arizona Rule of Criminal Procedure 33. See Riley v. Superior Court, 124 Ariz. 498, 499 (App. 1979). Such an order is not appealable and may be challenged only by special action. State v. Mulligan, 126 Ariz. 210, 216-17 (1980). Nevertheless, because Trzeciak would otherwise be deprived of appellate review of the contempt order, we exercise our discretion to treat this appeal as a special action and accept jurisdiction. See A.R.S. § 12-120.21(A)(4); Ariz. R.P. Spec. Act. 1(a).
DISCUSSION
¶5 We have read and considered counsel's brief and have reviewed the record for reversible error. See Leon, 104 Ariz. at 300. We find none.
¶6 Trzeciak was present and represented by counsel at all stages of the contempt proceedings. The record reflects that the superior court afforded Trzeciak appropriate notice of the conduct constituting the contempt, as well as a reasonable time and opportunity to present evidence and offer a defense. The facts presented suffice to warrant the court's finding of criminal contempt, as Trzeciak both "willfully disobey[ed] a lawful . . . order . . . of a court by doing . . . an act or thing forbidden" and "willfully engag[ed] in any other unreasonable conduct that . . . lessens the court's dignity and authority." See Ariz. R. Crim. P. 33.1(a), (b); see also A.R.S. § 12-864; Hirschfeld v. Superior Court, 184 Ariz. 208, 211-12 (App. 1995) (holding that certain misbehavior and harassment directed at litigants in or near the courtroom "lessens the dignity and authority of the court" and thus constitutes contempt of court). The punishment imposed falls within the range authorized by law. See Ariz. R. Crim. P. 33.2(c), 33.4(a).
CONCLUSION
¶7 Although we accept jurisdiction to review the superior court's contempt order, we deny relief. After the filing of this decision, defense counsel's obligations pertaining to Trzeciak's representation will end after informing Trzeciak of the outcome of this proceeding and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). On the court's own motion, Trzeciak has 30 days from the date of this decision to proceed, if he desires, with a pro se motion for reconsideration or petition for review.