State v. Leenhouts

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-07-0319-PR
Appellee, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-CR 06-0280
ANN MAVINEE LEENHOUTS, )
) Pima County
Appellant. ) Superior Court
) No. CR20043719
)
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable Charles S. Sabalos, Judge

REVERSED
________________________________________________________________

Memorandum Decision of the Court of Appeals, Division Two
Filed Sept. 6, 2007

VACATED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL
By Randall M. Howe, Chief Counsel, Phoenix
Criminal Appeals Section
Joseph L. Parkhurst, Tucson
Assistant Attorney General
Attorneys for State of Arizona

Peter A. Kelly Palominas
Attorney for Ann M. Leenhouts
________________________________________________________________

M c G R E G O R, Chief Justice

¶1 Arizona Rule of Criminal Procedure 14.1 requires that

a defendant not in custody be arraigned “within 30 days after
1
the filing of an indictment” or “as soon as possible

thereafter.” Ariz. R. Crim. P. 14.1(a), (b). We must decide

whether the superior court erred in ordering a trial to proceed

on a supervening indictment on the same day that the defendant

learned of the supervening indictment. We hold that the

superior court erred in requiring the trial to proceed.

I.

¶2 In 2003, Ann Leenhouts began divorce proceedings

against her then-husband. In August 2004, the superior court

granted the husband full custody of the couple’s three children,

but Leenhouts did not return the children to him. In September

2004, a Deputy United States Marshal located her and the

children in Maryland and took Leenhouts into custody. Maryland

authorities then released the children to the husband.

¶3 In October 2004, a grand jury indicted Leenhouts for

custodial interference in violation of Arizona Revised Statutes

(A.R.S.) section 13-1302.A.3 (2001) (subsection A.3), a class 6

felony. In December 2004, the superior court arraigned

Leenhouts and released her on her own recognizance. The

following October, the State obtained a supervening indictment

charging Leenhouts with custodial interference in violation of

both A.R.S. § 13-1302.A.1 (subsection A.1) and subsection A.3.

Leenhouts was never arraigned on the supervening indictment.

¶4 Leenhouts and her counsel first saw the supervening
2
indictment on May 23, 2006, the first day set for trial.

Leenhouts objected to proceeding on the supervening indictment,

arguing that she had received insufficient notice of the new

charge based on subsection A.1. Leenhouts also argued that the

supervening indictment prejudiced her by depriving her of an

absolute defense to the original charge based on subsection A.3.

The court overruled Leenhouts’s objection, and the trial

proceeded on the charges in the supervening indictment. A jury

ultimately found Leenhouts guilty.

¶5 Leenhouts appealed, arguing that the trial court erred

by ordering the trial to continue in violation of Rule 14.1. In

a memorandum decision, the court of appeals affirmed. The court

concluded that the record was “devoid of any suggestion

Leenhouts had relied on the initial indictment to her

detriment.” The court noted that because Leenhouts filed an

extensive pretrial disclosure statement and prepared a necessity

defense, the record indicated that she did not rely solely on

her absolute defense to the charge of custodial interference

under subsection A.3. Moreover, the court stated, Leenhouts

failed to request a continuance.1

1
Leenhouts also made an argument based on the Sixth
Amendment, U.S. Const. amend. VI, which the court of appeals
declined to address because she did not raise that argument
until oral argument. Because we resolve this case on the basis
of Rule 14.1, we do not address the Sixth Amendment argument.

3
¶6 We granted Leenhouts’s petition for review because it

raises an issue of statewide importance. We exercise

jurisdiction pursuant to Article 6, Section 5.3, of the Arizona

Constitution and Rule 23(c) of the Arizona Rules of Civil

Appellate Procedure.

II.

A.

¶7 The State necessarily concedes that because Leenhouts

was never arraigned on the supervening indictment, these

proceedings did not comply with Rule 14.1. The purpose of an

arraignment under Rule 14 “is formally to advise the defendant

of [her] legal rights and of the charges against [her] and to

begin the proceedings by assuring that counsel is provided and

the date of trial set.” Ariz. R. Crim. P. 14 cmt. Although the

State obtained the supervening indictment in October 2005,

Leenhouts was not served with the indictment or arraigned before

the date set for trial the following May.

¶8 As the State recognized during oral argument, the

record does not demonstrate any attempt by the State to fulfill

its obligation to serve Leenhouts with the supervening

indictment. The State’s failure to serve Leenhouts or

demonstrate its attempts to serve her, for more than seven

months after it filed the supervening indictment, violated Rule

14.1.
4
 B.

¶9 Rule 14.1 does not define the sanction to be imposed

in the absence of a timely arraignment. See State v. Vassar,

111 Ariz. 487, 489, 533 P.2d 544, 546 (1975). “There is nothing

in the rules which requires that the case be dismissed for

failure to comply with [Rule 14.1]. Absent such a sanction, it

is necessary that actual prejudice be shown.” Id. Prejudice

exists if the failure to arraign a defendant deprives him or her

of notice of the charges and thereby deprives the defendant of

the opportunity to defend against those charges. See State v.

Curry, 187 Ariz. 623, 631, 931 P.2d 1133, 1141 (App. 1996);

State v. Dungan, 149 Ariz. 357, 362, 718 P.2d 1010, 1015 (App.

1985) (“[T]here is no prejudice if the defendant had full and

fair notice of the crime charged, is not surprised, confused or

prejudiced in his defense, and is afforded a full and fair

opportunity to defend the charge against him.”).

¶10 The original indictment charged Leenhouts only with

custodial interference in violation of subsection A.3, which

applies when a person who is “one of two persons who have joint

legal custody of a child takes, entices or withholds from

physical custody the child from the other custodian,” “knowing

or having reason to know that the person has no legal right to

do so.” A.R.S. § 13-1302.A.3. To establish custodial

interference in violation of subsection A.3, therefore, the
5
State needed to show that Leenhouts was one of two persons who

had joint legal custody of the children. But because the court

had granted the husband full custody of the children, Leenhouts

did not share joint legal custody, and the State simply could

not establish the charge’s joint legal custody requirement.

¶11 Perhaps aware of its inability to prove the original

charge, the State obtained a supervening indictment. The

indictment added a charge of custodial interference in violation

of subsection A.1. A person violates subsection A.1 when the

person,

knowing or having reason to know that the person has
no legal right to do so . . . [t]akes, entices or
keeps from lawful custody any child, or any person who
is incompetent, and who is entrusted by authority of
law to the custody of another person or institution.

A.R.S. § 13-1302.A.1. Leenhouts’s argument before the trial

judge on the first day of trial makes clear that she and her

counsel lacked notice of the supervening indictment’s new

custodial interference charge, alleged under subsection A.1.

¶12 There can be little question that the State’s failure

to provide notice of the new charge in the supervening

indictment prejudiced Leenhouts’s defense. She and her counsel

arrived for trial knowing that the State could not show the

joint legal custody required to obtain a conviction under

subsection A.3. The new charge, in contrast, alleged a

violation to which Leenhouts’s “absolute defense” did not apply.
6
The lack of notice clearly prejudiced Leenhouts.

¶13 The State argues that the Rule 14.1 violation did not

deprive Leenhouts of notice of the charges against her because

the supervening indictment did not change the nature of the

charge in the original indictment. Cf. State v. Van Vliet, 108

Ariz. 162, 164, 494 P.2d 34, 36 (1972) (stating that a new

arraignment is generally unnecessary if an amended indictment

does not change the nature of the offense). Subsections A.1 and

A.3, however, define distinct statutory offenses with distinct

elements. The State itself apparently regarded the charges as

sufficiently different to require that it obtain a superseding

indictment rather than merely amend the original indictment

pursuant to Arizona Rule of Criminal Procedure 13.5. Because

the elements required to prove a violation of subsection A.1

differ from those required to prove a violation of subsection

A.3, the original and supervening indictments do not allege the

same charge.

¶14 The legislative history of A.R.S. § 13-1302 buttresses

our conclusion. Pursuant to a statutory amendment in 1997, the

legislature adopted a new version of A.R.S. § 13-1302.A. 1997

Ariz. Sess. Laws, ch. 270, § 1 (1st Reg. Sess.). The previous

version simply stated:

A person commits custodial interference if, knowing or
having reason to know that he has no legal right to do
so, such person knowingly takes, entices or keeps from
7
 lawful custody any child who is less than eighteen
years of age or incompetent and who is entrusted by
authority of law to the custody of another person or
institution.

1994 Ariz. Sess. Laws, ch. 364, § 1 (2d Reg. Sess.). The

previous version did not clearly encompass situations in which

one custodial parent deprived another custodial parent of

physical custody of a child. Final Revised Fact Sheet for H.B.

2248, 43d Leg. (Sen.), 1st Reg. Sess. (1997). The 1997

legislative amendment sought to “rectify these types of

situations by increasing the scope of actions which come under

custodial interference,” and redefined custodial interference to

include situations involving joint legal custodians. Id. The

1997 amendment renumbered A.R.S. § 13-1302.A as subsection A.1

and added subsection A.3.

¶15 This history indicates that the legislature, in

creating subsections A.1 and A.3, intended to define distinct

custodial interference violations. Viewing the two subsections

as the State urges renders subsection A.3 superfluous. We

decline to treat the 1997 amendment as an inconsequential

legislative act and conclude that the State’s addition of a

subsection A.1 charge changed the nature of the charges against

Leenhouts.

III.

¶16 For the foregoing reasons, we vacate the decision of

8
the court of appeals. We reverse the conviction and remand the

matter to the superior court for proceedings consistent with

this opinion.

_______________________________________
Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

9