Thorne Marshall Harnage v. Hon. Browning State of Arizona

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THORNE MARSHALL HARNAGE,
Petitioner,

v.

HON. CHRISTOPHER BROWNING, JUDGE OF THE SUPERIOR COURT OF THE STATE
OF ARIZONA, IN AND FOR THE COUNTY OF PIMA,
Respondent,

and

THE STATE OF ARIZONA,
Real Party in Interest.

No. 2 CA-SA 2023-0084
Filed November 30, 2023

Special Action Proceeding
Pima County Cause No. CR20174389

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Megan Page, Pima County Public Defender
By Tatiana Struthers, Assistant Public Defender, Tucson
Counsel for Petitioner

Laura Conover, Pima County Attorney
By Victoria Otto, Deputy County Attorney, Tucson
Counsel for Real Party in Interest
 HARNAGE v. HON. BROWNING
Opinion of the Court

OPINION

Judge O’Neil authored the opinion of the Court, in which Vice Chief Judge
Staring and Judge Sklar concurred.

O’ N E I L, Judge:

¶1 Thorne Harnage seeks special-action review of an order
denying his notice for a peremptory change of judge filed pursuant to Rule
10.2, Ariz. R. Crim. P. We accept special-action jurisdiction and grant relief.

¶2 Harnage was indicted in 2018 on three counts of sexual
conduct with a minor. The case was first assigned to another judge and
then reassigned to the respondent judge in 2023. Not long after his
assignment to the case, the respondent noted he would have the trial set
before “another division” due to a “calendaring conflict.” The respondent
later set a trial date before a different division.

¶3 At the conclusion of the trial, the jury acquitted Harnage of
one count but failed to reach a verdict as to the two other counts. That same
day, the judge who presided over the trial set a status conference before the
respondent. The trial judge informed counsel she had spoken with the
respondent, and he had “said if there was a hung jury, that he would take
the case back. And it was his case.”

¶4 Two days later, Harnage filed a notice of change of judge
under Rule 10.2. The respondent denied the notice as untimely, stating that
the ten-day deadline in Rule 10.2(c)(1)(C) had expired ten days after his
initial assignment to the case. The respondent stated that although another
judge had “covered the trial,” the case had not been “reassigned” to that
judge “nor reassigned back to” him. This petition for special action
followed.

¶5 Because Harnage has no remedy by appeal, we accept special-
action jurisdiction. See State v. Ingram, 239 Ariz. 228, ¶ 16 (App. 2016)
(noting that “a challenge to the denial of a notice of peremptory change of
judge filed pursuant to Rule 10.2 must be brought by special action”); see
also Ariz. R. P. Spec. Act. 1(a); A.R.S. § 12-120.21(A)(4). We review de novo
the respondent’s interpretation of the rule. State v. Manuel, 229 Ariz. 1, ¶ 5
(2011).

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 HARNAGE v. HON. BROWNING
Opinion of the Court

¶6 Rule 10.2(a)(1) entitles “[e]ach side in a criminal case . . . to
one change of judge as a matter of right.” The notice must be filed “no later
than 10 days after” arraignment, the filing of an appellate mandate, or “in
all other cases, actual notice to the requesting party of the assignment of the
case to a judge.” Ariz. R. Crim. P. 10.2(c)(1). “A party loses the right to a
change of judge . . . if the party participates before that judge in any
contested matter in the case, a proceeding under Rule 17, or the beginning
of trial.” Ariz. R. Crim. P. 10.2(e).

¶7 Harnage asserts his notice was timely because it was filed
within ten days of the trial judge reassigning the case back to the
respondent. The respondent concluded, however, that the case was never
assigned to the trial judge and the time for Harnage to seek a peremptory
change of judge had long passed. Similarly, the state asserts that when
“another judge handle[s] a matter” to provide “temporary assistance,” it
does not trigger Rule 10.2(c)(1)(C) because it does not “reassign[] the case
as a whole.”

¶8 The state cites no authority to support its interpretation, and
we have found none. Indeed, were we to adopt the state’s position, it would
mean Harnage would have had no opportunity to seek a change of judge
as to the judge who actually heard the trial because that judge was never
assigned to the case. That result is contrary to established law. For the
purpose of a notice of change of judge under Rule 10.2(c)(1)(C), a case is
assigned to a judge who is scheduled to preside over trial or to hear and
decide a specific legal issue. See Bolding v. Hantman, 214 Ariz. 96, ¶ 10 (App.
2006) (“assignment” occurs upon “a specific assignment . . . to hear and
decide a specific legal issue”); State v. Cozad, 113 Ariz. 437, 438 (1976) (case
is assigned to judge who is scheduled to preside over trial). The superior
court may adopt internal procedures to allocate caseloads among judges,
but these do not determine whether an assignment has occurred under the
rule. Here, the case was assigned to the respondent, then to the trial judge,
and then again to the respondent. Having been filed within ten days of that
most recent assignment, Harnage’s notice was timely. See Ariz. R. Crim. P.
10.2(c)(1)(C).

¶9 The state further asserts that Harnage waived his right to a
change of judge because he did not file a Rule 10.2 notice as to the
respondent judge within ten days of his initial assignment to the case. We
disagree.

¶10 Rule 10.2(c)(1) permits a party to file a notice of change of
judge within ten days after any one of several triggering events, including

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 HARNAGE v. HON. BROWNING
Opinion of the Court

the “assignment of the case to a judge.” The respondent’s second
assignment began when the trial judge sent the case back to him after trial,
and Harnage timely filed his notice within ten days after that assignment.
Citing Hill v. Hall, 194 Ariz. 255 (App. 1999), the state argues that Harnage
forfeited his right to a change of judge by allowing the ten-day period to
run as to the respondent during his first assignment. In Hill, we stated that
a “party forfeits his right to a peremptory challenge” if that “party fails to
exercise his Rule 10.2 peremptory right to a change of judge within the ten
day period.” Id. ¶ 6. But Hill did not address whether, under Rule 10.2, the
right to a change of judge is triggered only by the first time a case is assigned
to a judge. The rule contains no such limitation.

¶11 Nor does the rule suggest that the failure to file a timely notice
as to a particular judge forever waives the right as to that judge if a
triggering event under Rule 10.2(c)(1) later occurs. The waiver provision of
Rule 10.2(e) only identifies a single waiver condition: a party’s
participation in certain proceedings before “that judge,” that is, the judge
subject to the notice. The timeliness requirements of Rule 10.2(c), in
contrast, do not refer to a specific judge but are triggered by arraignment,
appellate mandate, or assignment.

¶12 Indeed, the Rules of Criminal Procedure necessarily imply
that a new triggering event could allow a peremptory change of judge after
an earlier ten-day period has expired. For example, if a case is returned to
the trial court by appellate mandate, a party may seek a change of judge
under Rule 10.2(c)(1)(C). The rule permits that change even if the case is
returned to the same trial judge—a party may “exercise a change of judge
as a matter of right” and “no event connected with the first trial constitutes
a waiver.” Ariz. R. Crim. P. 10.2(f). Rule 17.4(g), Ariz. R. Crim. P., similarly
allows a defendant to file a notice under Rule 10.2 if the defendant
“withdraws a plea after a presentence report is submitted.”

¶13 Because Harnage had not previously exercised or otherwise
waived his right to a peremptory change of judge under Rule 10.2, and the
notice was timely filed after the latest assignment to the respondent, the
respondent erred by denying his notice. We therefore vacate the
respondent’s order denying Harnage’s notice of change of judge and direct
the respondent to transfer the case to the presiding judge for reassignment.

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