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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Petitioner,

v.

THE HONORABLE PHEMONIA MILLER,

Commissioner of the SUPERIOR COURT OF THE STATE OF ARIZONA, 

in and for the County of MARICOPA, Respondent Commissioner, 

CHARLES EDWARD MARTIN, Real Party in Interest.

No. 1 CA-SA 15-0226

Appeal from the Superior Court in Maricopa County

No. CR2014-155798-001

The Honorable Phemonia Miller, Judge Pro Tempore

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Maricopa County Attorney’s Office, Phoenix 

By Catherine Leische

Counsel for Petitioner
STATE v. HON. MILLER/MARTIN

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.

W I N T H R O P, Judge:

¶1 In this special action, the State of Arizona seeks reversal of the

trial court’s order granting Defendant/Real Party in Interest, Charles 

Edward Martin (“Martin”), release on bail. For the following reasons, we 

accept jurisdiction and grant relief.

FACTS AND PROCEDURAL HISTORY

¶2 On August 20, 2014, Martin was released on his own 

recognizance, pending trial on a class 4 felony of aggravated assault.1 He

was later charged in the present case with failure to register as a sex 

offender, a class 4 felony. At the initial appearance of the present case, the 

court found Martin nonbailable. While the present case was pending, 

however, the case on aggravated assault was dismissed without prejudice. 

After the dismissal, Martin requested a hearing on his release status in this 

case. See Simpson v. Owens, 207 Ariz. 261, 85 P.3d 478 (App. 2004).

¶3 During the Simpson hearing, the State argued that, pursuant 

to Article 2, Section 22, of the Arizona Constitution, Martin was not 

bondable because the proof was evident or the presumption great that 

Martin had committed the current charged felony while admitted to bail on 

a separate felony charge. The State contended that the fact of the prior 

charged offense and the timing of the present offense was a matter of court 

record, and it was not required to further affirmatively show that Martin 

was on release when committing the present offense. In the alternative, the 

State asked the court to confirm in its records that Martin was on release 

status at the time the present offense was committed. Apparently, the court 

did not check the record and instead found that, although the State had met 

its burden of showing Martin had committed the present offense, it had not 

 

1 Martin’s release condition was initially set as release on bond but 

later modified to release on his own recognizance.
STATE v. HON. MILLER/MARTIN

Decision of the Court

3

met its burden of showing Martin was on release when committing the 

present offense. As a result, the court held Martin was bondable. 

¶4 The State then filed a motion to reconsider, asking the court 

to take judicial notice of the fact that Martin was on release status at the 

time he committed the present offense. Martin did not file a response to the 

motion. During a subsequent bond hearing, the State offered the court 

certified copies of the minute entry showing Martin had been on release 

status; however, the court declined to consider the State’s pending motion 

to reconsider until Martin submitted a written response. The court then set 

a bond in the present case. 

¶5 This petition for special action followed. In its petition, the 

State argues that it was not required to affirmatively show Martin was on 

release, and contends the trial court should have simply consulted the court 

records during the Simpson hearing or, in the alternative, accepted the 

certified copies of those records offered during the bond hearing. The State 

asks this court to reverse the trial court’s grant of bail. Martin has not filed 

any response to the petition.

JURISDICTION

¶6 We accept jurisdiction because the State does not have an 

equally plain, speedy, or adequate remedy by appeal. Ariz. R.P. Spec. Act. 

1(a).

2

ANALYSIS

¶7 Under the Arizona Constitution, “[a]ll persons charged with 

crime shall be bailable . . . except [f]or felony offenses committed when the 

person charged is already admitted to bail on a separate felony charge and 

where the proof is evident or the presumption great as to the present 

charge.”3 Ariz. Const. art. 2, § 22(A)(2). This type of regulation of a 

defendant’s rights to bail has been upheld as constitutional. United States v. 

Salerno, 481 U.S. 739, 752, 755 (1987). This court has enforced the 

constitutional provision even where, as here, the charges in the first case are 

 

2 We cite the current version of the applicable statute unless revisions 

material to this decision have occurred since the events in question.

3 Although the term “admitted to bail” is used in the constitutional 

provision, this exception to bail applies equally to individuals, like Martin, 

who have been released on their own recognizance. Heath v. Kiger, 217 Ariz. 

492, 493, ¶ 1, 176 P.3d 690, 691 (2008).
STATE v. HON. MILLER/MARTIN

Decision of the Court

4

dismissed while the second criminal case is pending. See State ex rel. Corbin 

v. Buchanan, 131 Ariz. 416, 417, 641 P.2d 904, 905 (App. 1982). Dismissal of 

the first case does not eliminate the fact a second offense was committed 

while the defendant was on release status from an earlier felony charge. Id.

The inquiry stays the same: Whether the proof is evident or the 

presumption great that the defendant committed the current offense, and 

whether the offense was committed while the defendant was on release 

status from the first charged felony offense. Id. If such proof is presented, 

the charged second offense serves as a disqualification for being admitted 

to bail or other release status.

¶8 The State bears the burden of proving both prongs of this 

exception to bail. See Simpson, 207 Ariz. at 270, ¶ 27, 85 P.3d at 487. That is, 

contrary to the State’s assertion, it is required to affirmatively show Martin 

was on release when the present charge was committed. The State argued, 

essentially, that the trial court could, after allowing Martin to be heard on 

the issue, take judicial notice of Martin’s release status by simply referring 

to existing court records. See Ariz. R. Evid. 201(b)(2) (stating the court may 

judicially notice a fact that is not subject to reasonable dispute because it 

“can be accurately and readily determined from sources whose accuracy 

cannot reasonably be questioned”). This may be true; however, the State 

could have better assisted the court by having that record in hand for the 

court’s review at the Simpson hearing. See Ariz. R. Evid. 201(c)(2) (stating 

the court “must take judicial notice if a party requests it and the court is 

supplied with the necessary information”). When that record was offered 

to the trial court at the subsequent bond hearing, the court should have 

either accepted it then, or deferred its ruling on the bond request until the 

defendant could submit his written response to the State’s pending motion 

for reconsideration. In any event, Martin is not bondable, and the trial court 

erred in granting release status.

CONCLUSION

¶9 For the foregoing reasons, we accept jurisdiction and grant 

relief. The trial court’s grant of bail is reversed.