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MICHAEL G. RANKIN City Attorney Baird S. Greene Deputy City Attorney \Villiam F. Mills Principal Assistant Prosecuting Attorney Criminal Division P.O. Box 27210 Tucson,AZ 85726-7210 AZ State Bar No. 005602 Pima Co. Computer No. 39364 (520) 791-4104 E-mail: William.Mills@tucsonaz.gov

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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF PIMA STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) )
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No. Tucson City Court Cause No. CR 09006068 APPELLEE'S RESPONSIVE MEMORANDUM

Plaintiff/Appellee

vs. ROY WARDEN, Defendant/Appellant,

Judge: Hon. Division

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THE STATE OF ARIZONA, by the undersigned Principal Assistant Prosecuting City Attorney, submits its Appellee's Responsive Memorandum in this matter.

24 25 26 27 28 parks. The Defendant was issued a citation and field released with instructions to appear for HISTORY OF THE CASE On February 4,2008, Roy Warden, the Defendant/Appellant, was arrested in Library Park at 101 North Stone for a violation of Tucson City Code 21-3, regulating behavior in city

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arraignment in Tucson City Court on February 14, 2008. On February 14, 2008, under Tucson City Court docket number CR 08013622, the Defendant was arraigned on the charge against him, entered a plea of not guilty, and was released

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on his own recognizance.

The Defendant's conditions of release included that he was not to return

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standard conditions release form." Id. On December 22, 2008, the Defendant sent a letter to the assigned city court trial judge, the Honorable Thomas Berning, informing the judge of his intent to "commence the third annual Tucson Weekly Public Forum on January 14, 2009, on Library Square ..., in direct and intentional defiance of current Municipal Court Orders." (ROA, Letter from the Petitioner, dated December

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22, 2008 at p.2.)

The Defendant never filed a motion to modify conditions of release in CR

08013622, nor did he ask leave of the lower court to appear at Library Park on January 14,2009. Nor did he seek any fonn of appellate relief from the then existing conditions of release. On January 14, 2009, the Defendant was arrested at Library Park and was charged with one count of Interfering with Judicial Proceedings, A.R.S.
13-2810 (for failing to abide by the

February 14, 2008, court order setting forth his conditions of release). The Defendant was taken to the Pima County Jail where he was arraigned on the new charge. The case was consolidated with docket CR 08013622, assigned to the lower court, and bond was set at $1000. (ROA, Minute Entry dated January 14, 2009.) On April 9, 2010, case CR 08013622 was dismissed pursuant to the

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State's motion. (ROA, Minute Entry dated April 4, 2010, docket CR 08013622.)

During the pendency ofthe current case, the Petitioner filed a number of motions, including a motion to dismiss, alleging that the order in CR 08013622 violated his constitutional rights and was, therefore, void and unenforceable. (ROA, Defendant's Motion to Dismiss, filed August 13,

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2010.) The State filed a timely response. Dismiss).

(ROA, State's Response to the Defendant's Motion to

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

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(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 a special action, set a filing deadline ofJuly 27,2011, and ordered the proceedings conditionally stayed. On July 27,2011, the Defendant filed a Petition for Special Action but failed to file and/or serve upon the State any Summons, Complaint, or Notice of Hearing. On August 16, 2011, the State moved

22 to strike the Defendant's Petition for Special Action. On August 19,2011, this Court granted the
23 24 25 The State filed a timely response. 26 27 28 3 After oral argument on the Special Action, the Court took the matter under advisement. On State's motion to strike, and ordered the petition dismissed without prejudice. On August 29,2011, complying with the relevant procedural rules, the Petitioner re- filed his Petition for Special Action.

November 28,2011, the COUlidenied the Defendant's special action and sent the case back to the trial court. On October 29, 2012, a bench trial was conducted before the trial court, after which the

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Defendant was found guilty. The Defendant filed a Notice of Appeal on November 8,2012. filed his opening memorandum on January 11, 2013, to which the State now responds. LEGAL ARGUMENT

He

I.

THE DEFENDANT'S APPEAL SHOULD BE STRICKEN AS IT DOES NOT COMPORT 'VITH THE REQUIREMENTS OF 17B A.R.S. SUPER. CT. CRIMINAL APPELLATE PROCEDURE RULES, RULE 8(a)(3). I7B A.R.S. Super. Ct. Criminal Appellate Procedure Rules, Rule 8(a)(3) provides that

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"[m]emoranda shall include a short statement of the facts with reference to the record, a concise argument setting forth the legal issues presented with citation to authority and a conclusion stating the precise remedy sought on appeal." Id.

15 16 17 18 19 20 21 order at issue in this case is invalid. None of these references are applicable to the present appeal. In his statement of facts, the Defendant makes only scattered references to the record in this case. The appeal does contain a history of the Defendant's experiences with lower courts in previous cases but does not provide those records or specific citations. The Defendant refers to several incidents in previous cases to support his claim that the court

22 What is relevant in the present appeal is whether, based on the record in the present case, there is
23 24 25 restriction preventing him from going within 1000 feet of a specific location. any evidence that the lower court issued an invalid order. The record is absolutely devoid of any such evidence. In fact, the record supports the exact opposite; a lower court judge issued an area

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27 28 4 Further, the Defendant makes several bald allegations that have no place in a statement of

facts. For example: Item 10 in the Defendant's Memorandum contains unsubstantiated accusations against City of Tucson officials ("malfeasance" and "cronyism"). Likewise, in the footnote to item 26, the Defendant offers improper commentary laced with hearsay and otherwise irrelevant

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communications with unnamed defense attomeys. The State respectfully requests that the whole of the Defendant's appeal be stricken for noncompliance 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,

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even though indicative of nothing, should be stricken from the present case. II. THE LO'VER COURTS PROPERLY IMPOSED CONDITIONS OF RELEASE ON THE DEFENDANT. A.R.S. 13-3967(D) specifically authorizes a court to place restrictions upon a subject released 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,

12 13 14 15 16 17 18 19 20 21 imposed them or by the court in which the prosecution is pending." (Emphasis added.)

the defendant shall be entitled to have the conditions of release reviewed by the judicial officer who

There are two flaws with the Defendant's argument against the conditions of release in his case. First, he cites only to civil cases on injunctions but cites no authority on how they might apply to this criminal matter. Second, he cites no authority to refute that trial courts have the power to impose reasonable conditions of release.

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23 24 25 26 27 28 5 Not only may a court impose reasonable conditions of release, courts have broad authority and may impose conditions that intrude on fundamental rights. According to State v. Kessler, 199 Ariz. 83, 13 P.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 a reasonable relationship to the goals of probation. United States v. Turner, 44 F.3d 900,903 (10th Cir.) ....The question is whether there is a reasonable nexus between the conditions imposed and the goals to be achieved by the probation. State v. Davis, 119 Ariz. 140, 142, 579 P.2d 1110, 1112 (1978) ....A court will not "strike down conditions of release, even if they implicate fundamental rights, if such conditions are reasonably related to the ends of rehabilitation and protection of the public from recidivism." United States v. Schave, 186 F.3d 839, 843 (7th Cir.1999). Courts have broadly interpreted the judiciary's authority to mandate conditions of release provided such conditions have a reasonable nexus to the goals of the restrictions. Previous courts have upheld restrictions on a defendant from keeping company with his spouse, State v. Nickerson, 164 Ariz. 121, 123, 791 P .2d 647,649 (1978), a boyfiiend from associating with his girlfriend, State v. Donovan, 116 Ariz. 209, 211-12, 568 P.2d 1107, 1109-10 (1977), and a mother from obtaining

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custody 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 a repeat offense at the incident location and bear a sufficiently clear nexus to the objective. The

conditions were reasonable as they covered only a 1000 foot distance from a particular location. Though the Defendant claims he is precluded from certain activities by the geographic restriction,

18 19 20 21 he cites no authority for his conclusion. Further, as the State notes below, the Defendant had years to challenge the order, or at least seek clarification as to what activities might be proscribed by the geographic limits. Curiously he has not done so until this appeal, despite having the right to raise this issue with the lower court. 23 III. 24 25 The Arizona Court of Appeals held that if a defendant does not appeal or seek special action 26 27 28 6 relief from the court order or injunction, the defendant is barred from launching a collateral attack THE DEFENDANT IS BARRED FROM CHALLENGING THE ORDER OF PROTECTION HAVING FAILED TO CHALLENGE IT PREVIOUSLY

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in the case arising from the contempt charges. Chavez, 123 Ariz. 538,601 P.2d 301. The Court, quoting the Arizona Supreme Court, stated that: "It is a settled principle oflaw that all order issued by a court with jurisdiction over the subject matter must be obeyed by the parties until that order is reversed by orderly and proper proceedings." Id. at 540-541,601 P .2d at 303-304 citing Broomfield v. Maricopa County, 112 Ariz. 565,544 P.2d 1080 (1975). There is no question that the court in the present case had jurisdiction, both subject matter and personal, over both Dockets 08013622 and 08017674. In support of its decision, the Court of Appeals also relied on the United States Supreme

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Court decision in Walker v. City ofBirmingham, Court stated:

388 U.S. 307, 87 S.Ct. 1824 (1967). The Walker

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This COUli cannot hold that the petitioners were constitutionally free to ignore all procedures of the law and carry their battle to the streets. One may sympathize with the petitioners' impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom. Chavez 123 Ariz. at 541, 601 P.2d at 304 quoting Walker v. City of Birmingham, Supra. The Chavez court went on to state that "In our opinion, the concept that any person, lay or professional, may determine whether a court order is 'void on its face' and thus susceptible to being ignored as unconstitutional can find no justification in the law." Id. at 543,601 P.2d at 306. As such, the Defendant was not free to disobey the conditions of release imposed upon him simply

22 because in his opinion they were void. Rather, the Defendant's recourse was to challenge the
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conditions when they were instituted in the respective case in which they were imposed.

The

Defendant did not challenge those conditions when they were instituted, and his is, therefore, barred

with violating those court orders.

CONCLUSION
For the foregoing reasons, the State requests that this Court uphold the verdict of the lower court. The Defendant has incorrectly stated the facts in the case. That alone should be grounds for with procedural rules. Alternatively, should the COUli examine of release.

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dismissal based on non-compliance

this appeal on the merits, the State submits that the lower court issued proper conditions

Further, the Defendant

availed himself

waived the right to challenge

these conditions

in this appeal having not

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of the opportunity to make these challenges at the trial court level in the case in 9 10 11 12 13 14 15 16 17 18 19 20 21 The Honorable Pima County Superior Court _ Copies ofthe foregoing mailed and/or delivered ~ay of February, 2013 to: this which they were imposed. RESPECTFULLY SUBMITTED this

I (~ay

of February,

2013.

STATE OF ARIZONA

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The Honorable Thomas Berning/Respondent Tucson City Court

Roy Warden, Petitioner Pro Se 1015 W. Prince Road, Tucson, AZ 85705 WFMlAP/am Re: State v. Warden

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Appellee's Responsive Memorandum Docket # NO.09006068