IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA ex rel. RACHEL H. MITCHELL, Maricopa County 

Attorney, Petitioner,

v.

THE HONORABLE KERSTIN LEMAIRE, Judge of the SUPERIOR 

COURT OF THE STATE OF ARIZONA, in and for the County of 

MARICOPA, Respondent Judge,

JOEL MCCLAIN CARSON, Real Party in Interest.

No. 1 CA-SA 23-0098 

Petition for Special Action from the Superior Court in Maricopa County

No. CR2023-000872-001

The Honorable Kerstin G. LeMaire, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Julie A. Done, Juli S. Warzynski, Nicholas Klingerman

Counsel for Petitioner

Maricopa County Legal Defender’s Office, Phoenix

By Kush Govani

Counsel for Real Party in Interest

FILED 7-13-2023
STATE v. HON LEMAIRE/CARSON

Opinion of the Court

2

OPINION

Judge Daniel J. Kiley delivered the opinion of the Court, in which Presiding 

Judge Maria Elena Cruz and Judge James B. Morse Jr. joined.

K I L E Y, Judge:

¶1 Petitioner State of Arizona sought relief by special action from 

the superior court’s dismissal of first-degree murder and other charges 

against Real Party in Interest Joel McClain Carson. By order issued June 2, 

2023, we accepted jurisdiction and granted relief for reasons more fully set 

forth here.

FACTS AND PROCEDURAL HISTORY

¶2 In May 2018, Carson was charged in State v. Carson, No. 

CR2018-124276 (the “2018 Case”) with first-degree murder and other 

felonies. A little more than a year later, the charges were dismissed without 

prejudice after the superior court determined that Carson was neither 

competent to stand trial nor restorable within the period prescribed by 

statute.

¶3 In July 2022, the State refiled the same charges against Carson 

in State v. Carson, No. CR2022-006384 (the “2022 Case”).1 On defense 

counsel’s motion, the Honorable Jo Lynn Gentry ordered the initiation of 

competency proceedings.

¶4 Defense counsel then reversed position, asking that the order 

for renewed competency proceedings be vacated. Asserting that Carson 

was entitled to a presumption of continued incompetency because he was

found incompetent in the 2018 Case, defense counsel argued that ordering 

a new competency evaluation was error because “no evidence” had been 

presented “to support a change in competency.” Defense counsel later 

supplemented his motion with a request that the 2022 Case be dismissed on 

grounds of incompetency.

¶5 In February 2023, this Court held in an unrelated case that 

leave of court is required before the State can refile charges that were 

1 The State also charged an additional felony, Misconduct Involving 

Weapons, in the 2022 Case.
STATE v. HON LEMAIRE/CARSON

Opinion of the Court

3

previously dismissed because the defendant was adjudged incompetent. 

Johnson v. Hartsell ex rel. County of Maricopa, 254 Ariz. 585, 591-92, ¶¶ 22-27 

(App. 2023). Pursuant to Johnson, the State filed a motion in the 2022 Case 

asking Judge Gentry to “grant permission, albeit . . . after the fact, for the 

re-charging of this case.” The State supported its request by noting that 

Carson was placed under an involuntary inpatient treatment order after 

being found incompetent in the 2018 Case and that the State filed the 2022 

Case upon learning that he was due to be released from Valleywise 

Behavioral Health Center (“Valleywise”). Carson’s scheduled release from 

Valleywise, the State contended, “demonstrates that Valleywise deemed 

[Carson’s] mental status significantly improved.”

¶6 In March 2023, Judge Gentry denied Carson’s request to 

vacate the competency proceedings and granted the State permission to 

refile the charges. Finding that the State’s discovery in July 2022 that Carson 

was due to be released from Valleywise gave the State a “reasonable belief,” 

as required by Johnson, “that [Carson] ha[d] regained competency,” Judge 

Gentry dismissed the 2022 Case without prejudice. The State then refiled 

the charges in State v. Carson, No. CR2023-000872 (the “2023 Case”).

¶7 Carson moved to dismiss the 2023 Case, asserting that he was 

entitled to the presumption of continued incompetency after being found 

incompetent in the 2018 Case. Noting that, under Johnson, the State could 

not properly refile the dismissed charges without reasonable grounds to 

believe he is now competent, Carson argued that “the State’s proffered 

reasons for a change in competency”—i.e., his participation in courtordered treatment and his imminent release from Valleywise—were

“insufficient” to “support a change in competency.” Because the State 

presented no “new evidence” to dispel “the previous incompetency 

determination,” he concluded, the presumption of continued incompetency 

required dismissal of the charges.

¶8 Pointing out that Judge Gentry had already granted leave to 

refile the charges, the State argued in response that Carson was engaged in 

“inappropriate forum shopping” by asking the judge in the 2023 Case, the 

Honorable Kerstin LeMaire, to “second guess Judge Gentry.”

¶9 In reply, Carson acknowledged that his motion to dismiss the 

2023 Case was brought to challenge Judge Gentry’s ruling in the 2022 case 

granting the State’s request to re-file charges. He insisted, however, that 

Judge LeMaire could properly revisit Judge Gentry’s ruling because he 

purportedly had “no other way of challenging” Judge Gentry’s ruling.

Asserting that special action relief from Judge Gentry’s ruling in the 2022 
STATE v. HON LEMAIRE/CARSON

Opinion of the Court

4

Case was not available since Judge Gentry dismissed the 2022 Case, Carson 

argued that his motion to dismiss the 2023 Case was “the only vehicle by 

which [he] may challenge Judge Gentry’s order.”

¶10 Finding “that it does not appear that the State had a 

reasonable belief that [Carson] regained competency prior to refiling the 

charges in this matter,” Judge LeMaire granted Carson’s motion and 

dismissed the 2023 Case without prejudice.

¶11 The State sought relief by special action from the dismissal 

order. By order, we accepted jurisdiction, set aside the dismissal order, and 

remanded to the superior court for a competency examination or other 

proceedings to determine Carson’s current competency status.

DISCUSSION

¶12 Relief by special action is appropriate where no “equally 

plain, speedy, and adequate remedy by appeal” exists. Ariz. R.P. Spec. Act.

1(a). Special action jurisdiction may be warranted, for example, in cases 

raising “issues that are of statewide importance,” State ex rel. Montgomery v. 

Miller, 234 Ariz. 289, 297, ¶ 14 (App. 2014), such as those involving the 

interpretation of new rules and other questions of first impression, Kellin v. 

Lynch, 247 Ariz. 393, 396, ¶ 9 (App. 2019); see also Fuller v. Olson ex rel. County 

of Pinal, 233 Ariz. 468, 471, ¶ 5 (App. 2013) (“Acceptance of special action 

jurisdiction is appropriate when a case presents a novel question of 

statewide importance that is also a question of law.”).

¶13 Our decision to accept special action jurisdiction in a 

particular case is highly discretionary. Prosise v. Kottke, 249 Ariz. 75, 77, ¶ 10 

(App. 2020). We accepted jurisdiction here because the State had no 

adequate remedy by appeal and because interpretation of Johnson’s

requirement that the State obtain judicial approval before refiling charges 

previously dismissed on grounds of incompetency is a matter of statewide 

importance. See Sarchett v. Superior Court ex rel. County of Maricopa, 168 Ariz. 

321, 322 (App. 1991) (accepting special action jurisdiction “to clarify the 

meaning of” a “newly amended rule,” “an issue of statewide importance 

impacting all trial courts”).

¶14 Arizona law as well as principles of due process prohibit the 

State from prosecuting an incompetent defendant. See A.R.S. § 13-4502(A) 

(“A person shall not be tried, convicted, sentenced or punished for an 

offense if the court determines that the person is incompetent to stand 

trial.”); Medina v. California, 505 U.S. 437, 439 (1992) (“It is well established 
STATE v. HON LEMAIRE/CARSON

Opinion of the Court

5

that [due process] prohibits the criminal prosecution of a defendant who is 

not competent to stand trial.”).

¶15 “[A] prior adjudication of mental incompetency gives rise to 

a rebuttable presumption of continued incompetency.” State v. Bradley, 102 

Ariz. 482, 487 (1967), overruled in part on other grounds by State v. Harvill, 106 

Ariz. 386, 391 (1970). A determination of incompetency does not, however, 

forever immunize a defendant from being held accountable for his or her 

criminal acts. After all, competency is fluid, and a defendant who is found 

incompetent at the outset of a criminal case may properly be found 

competent later. See A.R.S. § 13-4510(C) (stating that upon determining that 

the defendant is incompetent, “the court shall order treatment for the 

restoration of competency unless there is clear and convincing evidence” 

that such restoration treatment will not be effective within specified 

period); State v. Lewis, 236 Ariz. 336, 340-41, ¶ 10 (App. 2014) (“[R]estoration 

treatment . . . often results in restoration to competence or a discovery the 

defendant had been malingering.”).

¶16 For this reason, the State may refile charges that were 

dismissed on grounds of incompetency if there is reason to believe that the 

defendant has regained competency (or was malingering all along and thus 

never incompetent in the first place). See Rider v. Garcia ex rel. County of 

Maricopa, 233 Ariz. 314, 316-17, ¶ 9 (App. 2013) (“The treatment that a 

person receives while civilly committed may have the result of restoring 

competency,” and so “the state may refile charges if post-dismissal events 

suggest that the defendant has regained competency.”); Oligschlaeger v. 

Mulleneaux, 1 CA-SA 19-0083, 2019 WL 2185161, at *4, ¶ 16 (Ariz. App. May 

21, 2019) (mem. decision) (“[O]nce the court dismisses a charge after a notrestorable conclusion, the State may only refile the charge when evidence 

of subsequent events provides a reasonable belief of restoration.”).

¶17 Whether a defendant has regained competency such that 

dismissed charges may properly be refiled is a question that was long left 

to the State to determine in the first instance. Only after the State refiled 

charges would the court examine the defendant’s current competency 

status. See, e.g., Rider, 233 Ariz. at 316, ¶ 5 (noting that defense counsel 

sought competency determination after state re-filed charges against 

defendant previously found incompetent).

¶18 Allowing the State to refile charges based on its own 

understanding of the defendant’s competency status raised questions, 

however, about whether incompetent persons’ due process rights were 

adequately protected. Various courts expressed concern, for example, that 
STATE v. HON LEMAIRE/CARSON

Opinion of the Court

6

a prosecutor may refile dismissed charges to keep a jailed defendant in 

custody notwithstanding the defendant’s ongoing incompetency. See, e.g., 

id. at 317, ¶ 10 (noting that “the state’s ability to refile charges” against an 

incompetent defendant “has limits,” and “the state may not continually 

refile charges for the purpose of holding a defendant based only on his 

chronic incompetence to stand trial”); Victor v. State, 516 P.3d 506, 509 

(Alaska Ct. App. 2022) (noting the “possibility that the State could harass a 

mentally ill defendant by repeatedly litigating the same dismissed 

charges—each time subjecting the defendant to judicial process, to potential 

pre-trial incarceration, to renewed psychiatric evaluations, and . . . to the 

anxiety of facing criminal proceedings again”).

¶19 To protect incompetent persons from the refiling of dismissed 

charges for improper purposes (such as to prolong their incarceration), the 

Johnson court held that the State must obtain leave of court before refiling 

charges that were previously dismissed on grounds of incompetency. 254 

Ariz. at 591, ¶ 25. Rejecting the position that “the State need only assure 

itself that . . . grounds exist” to believe the defendant regained competency 

before re-filing charges, the Johnson court held instead that “the State must 

first allege its facts to a court to determine whether reasonable grounds 

exist” to find the defendant competent. Id. at ¶¶ 23, 25 (emphasis added). 

To allow the State to refile charges without first “alleg[ing] evidence to a 

court supporting its reasonable belief that a person is now competent,” the 

Johnson court explained, “would condone a ‘revolving door’ procedure 

allowing the State to restrain presumed incompetent persons based on past 

acts without reason to believe they are now competent.” Id. at 592, ¶ 26.

¶20 Though Johnson holds that the State must obtain leave of court 

before refiling charges that were dismissed on grounds of the defendant’s 

incompetency, Johnson makes clear that “the State does not have to prove the 

defendant’s competency” to obtain such leave of court. Id. at 591, ¶ 24. 

Instead, the State need only “provide information to the court . . . that 

supports a reasonable belief that the defendant has regained competency.” 

Id. at ¶ 25. “If the court agrees” that the State has alleged information giving 

rise to a reasonable belief that the defendant is competent, “the State may 

refile the charges, and either party or the court can request a competency 

examination.” Id. This “procedure,” the Johnson court found, protects the 

due process rights of a defendant found to be incompetent without 

“hinder[ing] the State’s ability to reevaluate [the] defendant’s competency.” 

Id.

¶21 In short, Johnson contemplates that the State be given a 

reasonable opportunity to gather evidence of a defendant’s current 
STATE v. HON LEMAIRE/CARSON

Opinion of the Court

7

competency status after the State obtains leave of court to refile charges 

previously dismissed on grounds of incompetency. After the State has been 

given a reasonable opportunity to gather and present evidence of the 

defendant’s current competency status, the court must then determine 

whether the evidence is sufficient to dispel the presumption of continued 

incompetency. Only if the court determines that the evidence is sufficient 

to dispel the presumption of continued incompetency may the prosecution 

proceed. Bradley, 102 Ariz. at 487 (explaining that presumption of continued 

incompetency is “outweighed” if, inter alia, “evidence of restoration to 

competency . . . is accepted as satisfactory . . . by the court” (emphasis 

added)).

¶22 In his response to the State’s petition for special action, Carson 

argues that Judge Gentry’s March 2023 order was erroneous for a variety of 

reasons. He complains, among other things, that Judge Gentry granted the 

State’s request for leave to refile charges before he filed his response (and 

before his response was even due) and further asserts that “Judge Gentry’s 

decision . . . was incorrect based on . . . longstanding due process 

precedent.”

¶23 Whatever the merits of Carson’s challenge to Judge Gentry’s 

order (and we do not consider them here), Carson was not entitled to 

challenge Judge Gentry’s ruling in the 2022 Case by filing a motion to 

dismiss the 2023 Case based on the same grounds presented to, and rejected

by, Judge Gentry. If Carson was of the view that Judge Gentry erred in 

granting the State leave to refile charges, his available remedies were to file 

a motion for reconsideration in the 2022 case or to challenge Judge Gentry’s

ruling by special action to this Court. See State v. Kangas, 146 Ariz. 155, 157 

(App. 1985) (noting that defendant may challenge dismissal without 

prejudice by special action); cf. Kool Radiators, Inc. v. Evans, 229 Ariz. 532, 

535, ¶ 11 (App. 2012) (explaining that, although the Court of Appeals has 

no appellate jurisdiction to review order awarding attorney fees to 

defendants and dismissing complaint without prejudice, it could exercise 

special action jurisdiction to review plaintiff’s challenge to order). The court 

erred in dismissing the 2023 Case based on the same grounds presented to, 

and rejected by, Judge Gentry, without requiring a new competency 

evaluation or otherwise providing the State an opportunity to gather and 

present evidence of Carson’s current competency status. See State v. ParisSheldon, 214 Ariz. 500, 508, ¶ 23 (App. 2007) (holding that trial court did not 

err in denying defendant’s motion to dismiss charges that were re-filed 

after being dismissed without prejudice in prior case, reasoning that “the 

proper method” of challenging the prior dismissal without prejudice “was 
STATE v. HON LEMAIRE/CARSON

Opinion of the Court

8

through a motion for reconsideration or petition for special action filed in

[the dismissed case], not by a motion to dismiss filed in a different case”).

¶24 We hold that, once the State refiles charges with leave of court

as required by Johnson, the superior court cannot dismiss the refiled charges 

on grounds of incompetency without first giving the State an opportunity 

to gather and present evidence bearing on the defendant’s competency. 

¶25 Our holding is consistent with Johnson. See Johnson, 254 Ariz.

at 591, ¶ 25 (“If the court agrees” that the State has provided information 

giving rise to a reasonable belief that the defendant is competent, “the State 

may refile the charges, and either party or the court can request a 

competency examination.”).

¶26 Our holding is also consistent with the well-established policy 

against reconsideration of judicial decisions based on no new evidence or 

changed circumstances. See Hibbs v. Calcot, Ltd., 166 Ariz. 210, 214 (App. 

1990) (“[O]ne trial judge should not reconsider the decision of another in 

the absence of new circumstances” because doing so “is wasteful of judicial 

resources and encourages ‘try again’ motion practice when a new judge 

gets a case.”). Though invoked most often when a judge is asked to revisit

a decision made by a predecessor judge “in the same matter,” see Donlann 

v. MacGurn, 203 Ariz. 380, 385, ¶ 29 (App. 2002) (citation omitted), the policy 

against horizontal appeals applies with equal if not greater force where, as 

here, two cases are involved. See Matter of Forfeiture of $3,000.00 U.S. 

Currency, 164 Ariz. 120, 121 (App. 1990) (affirming denial of purported 

property owner’s verified claim to seized property after owner failed to 

appeal the dismissal of prior pleading asserting claim to same property; 

“Were we to allow a new action to be filed . . . we would be allowing a 

horizontal appeal to another judge[.]”). Carson’s motion to dismiss the 2023 

Case constituted the kind of horizontal appeal of another superior court 

judge’s ruling of which our courts have long disapproved. Id.; see also 

Kangas, 146 Ariz. at 157-58 (rejecting defendant’s challenge to charges that 

were re-filed after being dismissed without prejudice due to speedy trial 

violation, and stating that defendant should have challenged prior judge’s 

order of dismissal without prejudice by special action; “[B]y re-arguing in 

[a] subsequent action the propriety of [prior] order dismissing the charges 

[without prejudice], [defendant] was in essence seeking a horizontal review 

of that ruling by another superior court judge, a practice which has been 

consistently criticized and disapproved by our courts.”). 

CONCLUSION
STATE v. HON LEMAIRE/CARSON

Opinion of the Court

9

¶27 Once a court grants the State leave to refile charges pursuant 

to Johnson after finding that the State has alleged a reasonable basis to 

believe that the defendant is currently competent, the refiled case cannot be 

dismissed based on the presumption of continued incompetency unless the 

State is first given an opportunity to gather and present evidence bearing 

on the defendant’s current competency status, including by requesting a 

renewed competency examination.

¶28 A defendant who seeks to challenge a court’s determination 

that the State has sufficiently alleged a reasonable basis to believe that the 

defendant is currently competent may either move for reconsideration or 

challenge the ruling by special action to an appellate court. The defendant 

is not, however, entitled to seek a horizontal appeal of an order granting 

the State leave to refile charges by moving to dismiss the refiled case based 

on information and arguments that the defendant already presented, or 

could have presented, in opposition to the State’s request to refile the 

charges. 

¶29 For these reasons, we accepted jurisdiction, set aside the order

dismissing the 2023 Case, and remanded the case to the superior court for 

further proceedings.