IN THE PASCUA YAQUI COURT OF APPEALS

IN THE PASCUA YAQUI COURT OF APPEALS

) Case No: CA-06-010

)

PASCUA YAQUI TRIBE, )

)

Plaintiff/Appellant )

)

V. ) OPINION

)

ALMA SOTO, )

)

Defendant/Appellee )

)

)

Appeal from a decision of the Pascua Yaqui Tribal Court, Docket Number CR-06-116, the

Honorable Melvin R. Stoof presiding.

Yancy A. Jencsok, Esq., Office of the Prosecutor, Pascua Yaqui Tribe, Tucson, Arizona, for

the Plaintiff/Appellant.

Nicholas A. Fontana, Esq., Office of the Public Defender, Pascua Yaqui Tribe, Tucson,

Arizona, for the Defendant/Appellee.

Per curiam.

We decide three issues in this case: 1) Should we grant the motion to dismiss the

appeal due to the Plaintiff/Appellant Tribe’s (Tribe) failure to file a transcript within thirty

days of filing its notice of appeal; or alternatively, due to the Tribe’s failure to file the trial

court record with this Court?; 2) Did the trial court err as a matter of law in ruling that the

Tribe has an affirmative, statutory duty to disclose relevant documents and information to a

criminal defendant within ten days of arraignment pursuant to 3 PYT R. Crim. P. 38

(Criminal Rule 38)?; and 3) Did the trial court abuse its discretion when it dismissed with

prejudice the charges against Defendant/Appellee Alma Soto (Soto) due to the Tribe’s

failure to timely disclose documents and information?

Soto was arrested on January 27, 2006 and charged the next day with two counts of

narcotics possession and three counts of possession of drug paraphernalia. Soto’s

arraignment was held on February 7, 2006. The Public Defender filed with the trial court a

notice of appearance on behalf of Soto and a request for disclosure on March 10, 2006.

The parties do not list the documents and information that were covered by the disclosure

request, but they are probably the items listed at 10 PYTC § 5.1 (current version at 3 PYT R.

Crim. P. 38)(hereafter Criminal Rule 38). Criminal Rule 38 provides that no later than ten

days after the arraignment, the prosecutor shall make available to the defendant the names

and addresses of all witnesses the prosecutor intends to call, all statements of defendant,

names and addresses of experts, a list of all papers, documents, and other tangible objects

that the prosecutor intends to use at trial, a list of all prior convictions that the prosecutor

will use at trial, and all material or information that tends to mitigate or negate the

defendant's guilt. At the March 13, 2006 pretrial conference, the trial court determined that

the Tribe was statutorily obligated to disclose by February 17, 2006, but nonetheless

ordered the Tribe to respond to Soto’s request for disclosure by March 17, 2006. The

Tribe provided Soto with police reports on March 13, 2006 and filed notice of full

disclosure on March 14, 2006. Soto filed notice of disclosure on March 16, 2006.

On March 23, 2006, Soto filed a motion to dismiss alleging that the Tribe had not

timely met its statutory duty to disclose. On April 4, 2006, the trial court found that the

Tribe had not timely met its affirmative, statutory duty under Criminal Rule 38 to provide

Soto with all disclosable materials and information in its possession so that she may prepare

her case. As a sanction for the Tribe’s violation of Criminal Rule 38, the trial court

dismissed the case with prejudice citing 10 PYTC § 5.5 (current version at 3 PYT R. Crim.

P. 42)(hereafter Criminal Rule 42), which provides a non-exclusive list of sanctions for

failing to comply with discovery rules.

The Tribe filed a notice of appeal on April 7, 2006, claiming that the trial court

misinterpreted Criminal Rule 38 and the sanction of dismissal with prejudice under

Criminal Rule 42 was overly harsh. On August 1, 2006, Soto filed a motion to dismiss the

appeal on two grounds: 1) The Tribe failed to file a transcript; and 2) The Tribe failed in its

duty to make sure the trial court record was filed with this Court within thirty days of filing

its notice of appeal. PYTRAP Rules 9 and 10 (current versions at 3 PYTC § 2-3-9 and 3

PYTC § 2-3-10)(hereafter PYTRAP Rule 9 and PYTRAP Rule 10). We address Soto’s

motion to dismiss the appeal first and then follow with a decision on the merits of the

appeal.

I

A. Failure to file the transcript

Soto argues that the appeal should be dismissed because the Tribe did not file a

transcript pursuant to PYTRAP Rule 9. Soto asserts that the Tribe has a duty to file a

transcript within thirty days from the date it filed the notice of appeal, PYTRAP Rule

9(B)(4), and its failure to do so invites summary dismissal of the appeal, PYTRAP Rule

10(B). The Tribe argues that a complete transcript is not required in every appeal. Only

“such parts of the proceedings necessary for inclusion in the record” are required,

PYTRAP Rule 9(B)(1), and as no hearing was held in this case, no transcript is required.

The applicable appellate rule states as follows: “The appellant shall file the original

transcript with the appellate court clerk and serve a copy on each party to the appeal no later

than thirty (30) days from the date the notice of appeal is filed.” PYTRAP Rule 9(B)(4).

When interpreting court rules, if the language of the rule is plain and unambiguous, we will

apply it as written. In this case, PYTRAP Rule 9(B)(4) uses the mandatory word “shall,”

thereby placing a duty on an appellant to file an original transcript with the appellate court

clerk no later than thirty days after the notice of appeal is filed. The rule is plain and

unambiguous so there is no need to resort to outside sources. The record shows that the

notice of appeal was filed on April 7, 2006. Therefore, the Tribe had 30 days from April 7,

2006 or until May 6, 2006 to file the transcript so it could be included in the trial court

record. No transcript was filed by the Tribe.

The Tribe, nonetheless, argues that a transcript is not required in every appeal and that

no transcript is required in this case because no hearing was held. Several provisions of

PYTRAP Rule 9 decide this issue. As stated above, PYTRAP Rule 9(B)(4) imposes a duty

on the Tribe to file a transcript, but the transcript need not be an entire transcript, as

PYTRAP Rule 9(B)(1) allows for a partial transcript of those “parts of the proceedings”

the appellant deems “necessary for inclusion in the record.” PYTRAP Rule 9(B)(2) also

implicitly allows for a partial transcript stating that “unless the entire transcript is to be

included, the appellant shall . . . file with the appellate court clerk a description of the parts

of the transcript which he intends to include in the record . . . [and] if the appellant refuses

to order such parts he shall, within five (5) days, notify the appellee in writing of such

refusal.” PYTRAP Rule 9(B)(1) requires an appellant to order a transcript, “if any” part is

necessary, within ten days of filing the notice of appeal and PYTRAP Rule 9(D) allows for

an agreed statement in lieu of a transcript. Rule 9(B)(1) and Rule 9(D), when read together,

provides the appellant an option not to file a transcript at all. A transcript may not be

necessary in an appeal that presents a pure question of law. We also agree with the Tribe

that a transcript may not be available where a hearing was not held.

Finally, PYTRAP Rule 9(B)(2) requires that the appellee receive written notice

regarding the transcript — whether it is a notice to file the entire transcript; a notice to file a

partial transcript; or a notice that no transcript will be filed. Notice gives the appellee an

Opportunity to respond or pursue other alternatives. If no transcript exists, it makes sense

that the Tribe should give Soto notice so she can respond or request a narrative summary, if

necessary, pursuant to PYTRAP Rule 9(C). In this case, because no hearing was held, the

Tribe can be excused from its failure to file the transcript. Moreover, even if we were to

agree that no transcript is needed, the Tribe must still ensure that the trial court record is

timely filed with the appellate court.

B. Failure to file the record

Soto argues that the Tribe has the duty to make sure the record is timely filed, and if

the record is not timely filed, the chief justice may summarily dismiss the appeal. 3 PYTC §

2-3-9(a)(2), 3 PYTC § 2-3-10(b)(hereafter PYTRAP Rule 9(A)(2), PYTRAP Rule 10(B)).

The Tribe counters that PYTRAP Rule 9 places the burden on the trial court clerk, and not

an appellant, to prepare and transmit the record to the appellate court. In support the Tribe

relies on PYTRAP Rule 9(A)(2), which states that the trial court clerk shall number the

items in the record, prepare an index and “transmit the record with the index to the appellate

court no later than thirty (30) days from the date the notice of appeal is filed.”

The trial court record is critical to the appellate process because the appellate court

uses it to understand what occurred on the trial level. Lamone v. Navajo Nation, 3 Nav. R.

87 (1982)(citing 4 Am. Jur. 2d Appeals and Error §§ 399, 491). The question is who has

responsibility for the timely filing of the record, the trial court clerk or the Tribe? We rely

on two provisions in the appellate rules to hold that the Tribe, as the appellant, has the duty

to make sure the trial court record is timely filed with the appellate court. PYTRAP Rule

9(A)(3) allows the “appellant [to] obtain an order from the appellate court that extends the

time for transmission of the record.” This rule gives appellant control over the record

because it gives the appellant authority to request an extension of time to file the record.

The other rule is plain and unambiguous and orders the appellant to timely file the record:

“If the appellant fails to timely file the record, the chief justice may summarily dismiss the

appeal.” PYTRAP Rule 10(B)(emphasis added).

These two rules, PYTRAP 9(A)(3) and PYTRAP 10(B), make the appellant

responsible for ensuring that the trial court record is timely filed with the appellate court.

The rules place this duty on the appellant for several reasons. The appellant, as the party

appealing, is in a better position to know about the progress of the appeal than the trial court

clerk, who has many other cases to oversee. In addition, to place the burden on the trial

court clerk would, not only overburden the clerk, but would create delays that could prove

detrimental to the appellant’s appeal. The appellant, whose primary interest is a final

decision, must maintain consistent contact with the trial court to make sure that the record is

being prepared for timely submission to the appellate court. Lastly, the appellant’s

interests in the appeal are significant because an appellate court can only rule on issues in

the record. The appellant’s interests in the appeal should be enough to burden the appellant

with ensuring that appellate court receives the full record.

The Tribe’s reliance on PYTRAP Rule 9(A)(2) is misguided. The rule states that the

“trial court clerk shall number the items comprising the record . . . [and] transmit the record

with the index to the appellate court.” PYTRAP Rule 9(A)(2). Common sense holds that

the trial court clerk is charged with transferring the record because the clerk is the custodian

of the trial court record. The trial court clerk has access to the record and all the necessary

information, including the names of the parties and their counsels, and the appellate court

clerk, to make a smooth transfer possible. PYTRAP 9(A)(2) does not impose a duty on the

trial court clerk to make sure the record is timely filed; that duty, as explained earlier, falls

on the appellant. The Navajo Nation Supreme Court, in interpreting its Appellate Rule

9(b)(4), which is nearly identical to the Pascua Yaqui rule, also held that the appellant, and

not the trial court clerk, bears the burden of ensuring that the trial court record (which

includes the transcript) is timely filed with the supreme court. Navajo Nation v. Hatathlie,7

Nav. R. 259, 260 (1997).

Under PYTRAP Rule 10(B), “If the appellant fails to timely file the record, the chief

justice may summarily dismiss the appeal.” Rule 10(B) is permissive because it states that

the chief justice “may” dismiss, and not “shall” dismiss, the appeal. Likewise, PYTRAP

Rule 3 states that “the appellate court may, upon motion for good cause shown, suspend the

requirements or provisions of any of these rules in a particular case, and may order

proceedings in accordance with its discretion. These rules shall be construed to do justice.”

Here, given the novelty and confusion surrounding the issue of filing the record, we find

that a dismissal of the appeal on procedural grounds would not do justice. We further find

that, instead of a dismissal, a clarification of the rules as we have done above would be more

in line with doing justice. Accordingly, Soto’s motion to dismiss the appeal is denied. Our

interpretations of the appellate rules at issue in this case will apply to all cases pending in

the Pascua Yaqui courts on the day this opinion is filed.

II

A. Failure to file disclosure

Soto argues that the Tribe, as prosecutor, has an affirmative statutory duty to disclose

all evidence in its possession regarding her case no later than ten days after her arraignment.

Criminal Rule 38 (3 PYT R. Crim. P. Rule 38) states that “no later than ten (10) days after

the arraignment, the prosecutor shall make available to the defendant for examination and

99

reproduction the following material and information . . . (emphasis added). The rule

provides a list of items that the prosecution must make “available” such as the names and

addresses of any intended witnesses, a list of all papers and prior convictions that the

prosecution intends to use, and all material that tends to mitigate or negate defendant’s guilt.

Id. Soto insists that a plain reading of Criminal Rule 38 necessitates the conclusion that the

Tribe must disclose all evidence listed in the rule by turning it over to her. The Tribe, on the

other hand, argues that the rule does not require a prosecutor to turn over documents, but

instead they need only make the evidence “available” (like an open file) for a defendant to

inspect no later than ten days after the arraignment. The dispute centers on the words

“shall make available.”

For background purposes, it is generally understood that there is no constitutional

right for a defendant to be granted access to the prosecution’s evidence. See Kanuck v.

Meehan, 165 Ariz. 282, 284, 798 P.2d 420, 422 (1990); accord Weatherford v. Bursey, 429

U.S. 545, 559 (1977). In the absence of a statute or court rule to the contrary, a person

accused of crime is not, as a matter of right, entitled to inspection or disclosure of evidence

in the possession of the prosecution. 7 A.L.R. 3d. 8 § 3 (2006). Similarly, in Arizona, prior

to the adoption of 16A A.R.S. Rule 15.1, the defendant had no right to disclosure, absent a

statutory provision providing such a right. Burke v. Superior Court of Pima County, 3 Ariz.

App. 576, 577, 416 P.2d 997, 998 (1966). Thus, the requirement of disclosure by the

prosecution is, by and large, statutory in nature requiring us to look to the language of

Criminal Rule 38.

The Pascua Yaqui Tribal Court interpreted Criminal Rule 38 to mean “that the

prosecutor has the affirmative duty to provide the defendant all information within the

possession or control of the prosecutor to reasonably apprise the defendant of the charges

filed against him or her,” so that the defendant may prepare a defense. Order of Dismissal

and Exoneration of Bond (April 4, 2006). The trial court’s use of the words “affirmative

duty to provide” could be taken to mean that the prosecutor has to do more than provide an

open file. However, whether our interpretation of the trial court’s ruling is correct or not

makes no difference because we are not bound by our trial courts’ interpretation of Pascua

Yaqui statutes and court rules. We review questions of law using the de novo standard of

review, which makes this Court the final arbiter on interpreting our statutes or rules.

Criminal Rule 38(A)(1)-(6) states that “the prosecutor shall make available to the

defendant,” no later than ten days after the arraignment, items summarized here as the

names and addresses of any intended witnesses, a list of all papers and prior convictions

that the prosecution intends to use, and all material or information that would tend to

mitigate or negate defendant’s guilt. More specifically, Criminal Rules 38(A)(4) and

38(A)(5) states that the prosecution must “make available,” “a list of all papers,

documents, photographs or tangible objects” and “a list of all prior convictions” that the

prosecutor intends to use. (emphasis added). Both rules require the prosecution to create a

list which can be made available to the defendant.

Because clauses in a statute are to be “read in conjunction with each other and

harmonized whenever possible,” we must interpret rule 38(A) in light of all its various

subdivisions. Groat v. Equity Am. Ins. Co., 180 Ariz. 342, 347, 884 P.2d 228, 233 (1994).

Thus, while Criminal Rule 38(A) merely requires the prosecution to “make available”

information in its possession, when read in conjunction with other provisions in the rule, it

becomes clear that the law requires the prosecution to do some affirmative act in excess of

providing an open file (i.e., give a list to the defendant).

The prosecution should, at a minimum, write up a list of the items in its possession,

mentioned in Criminal Rule 38, that it intends to use at trial and give the list to the

defendant. This list should be provided to the defendant within ten days after arraignment.

The prosecution is not required to go beyond providing a list by also handing over to the

defendant tangible evidence for inspection within the initial ten days. The defendant,

however, can use the list to request documents or seek an opportunity to inspect tangible

evidence in the prosecution’s possession. Following this reasoning, the Tribe should have,

at a minimum, given Soto a list of materials in its possession that it intended to use at trial.

Because the Tribe failed to do so, it violated Criminal Rule 38 and violated Soto's due

process rights.

B. Dismissal with prejudice

The Tribe argues that even if it violated Criminal Rule 38 by not affirmatively

disclosing evidence in its possession, the sanction of dismissal with prejudice is overly

harsh. We use an abuse of discretion standard to review sanctions for failure to comply

with discovery rules and we give deference to the trial court’s findings because of its

superior ability to determine the facts of the case. Under this standard, we may reverse a

discretionary decision if it rests on a clearly erroneous fact. In addition, as stated above, we

review the trial court's findings of law de novo.

In this case, we give deference to the trial court’s determination of the degree to which

the Tribe’s failure to follow discovery rules prejudiced Soto. The trial judge always has the

option to throw out evidence that was not properly disclosed by the Tribe if it prejudices the

defendant instead of dismissing the entire case. Criminal Rule 42(D). However, when there

is a violation of a defendant's due process rights, it will be difficult to find an abuse of

discretion on the part of the trial judge. If Soto’s due process rights were not implicated by

the Tribe’s failure to disclose within the ten-day time limit, there would be little reason to

dismiss the case with prejudice.

Due process is a fundamental right that is protected by the Pascua Yaqui Tribal

Constitution and the Indian Civil Rights Act (ICRA). 25 U.S.C. § 1302(8) (2006). In fact,

the trial court stated that “one of the fundamental rights of due process is the defendant's

right to disclosure of all material evidence that may be used against him or her.” Order of

Dismissal and Exoneration of Bond at 2. The decision also stated that “due process rights

must be afforded to defendants so that they may adequately defend their rights.” Jd.

Unless the prosecution properly discloses evidence against a defendant, a defendant would

have a difficult time preparing for trial. In addition, the ICRA states that a defendant must

“be informed of the nature and cause of the accusation” and “be confronted with the

witnesses against” her. 25 U.S.C. § 1302(6). By failing to provide Soto with the

disclosure listed in Criminal Rule 38, including a list of the witnesses that the Tribe planned

to use against her, the Tribe clearly violated Soto’s due process rights and severely

prejudiced her ability to prepare an adequate defense to the charges brought against her.

Criminal Rule 42 provides that if “a party has failed to comply with any provisions of

these discovery rules . . . the court may impose any sanction which it finds just under the

circumstances[.]” The rule goes on to provide a non-exclusive list of potential sanctions

including ordering discovery, granting continuance, and declaring a mistrial. The list is nonexclusive and the rule grants the trial court much discretion to impose any sanction that it

finds just. The trial court is in a better position to determine the prejudice to Soto for the

Tribe's failure to disclose evidence and whether the Tribe was acting in good faith or not.

Thus, while the sanction of dismissal with prejudice is strict, it does not rise to the level of

an abuse of discretion. We affirm the trial court's decision to dismiss with prejudice the

criminal charges against Soto.

10

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Filed this___' __ day of i larc ln , 2007.

Chief Justice

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11

IN THE PASCUA YAQUI COURT OF APPEALS

) Case No.: CA-06-010

)

PASCUA YAQUI TRIBE, )

)

Plaintiff/Appellant )

Vv ) NOTICE OF HEARING

ALMA SOTO, )

)

Defendant/A ppellee )

)

)

Micah Schmit, Esq., Office of the Prosecutor, Pascua Yaqui Tribe, Tucson, Arizona, for

the Appellant.

Nicholas A. Fontana, Esq., Office of the Public Defender, Pascua Yaqui Tribe, Tucson,

Arizona, for the Appellee.

Upon review of the record, this Court requests an appellate hearing be held in this

case. Oral arguments have been scheduled for Dec 8", 2006 at 2:45 PM. Arguments will

be held in the courtroom at the Pascua Yaqui Tribal Court. Appellant and Appellee will

each have 15 minutes to present.

Af

So ORDERED this CK day of Nov, 2006.

LA\~

Chief Justice

Pascua Yaqui Tribe

Office of the Prosecutor

7474 S. Camino de Oeste

Tucson, AZ 85746

(520) 879-6251 CA -G61G

Yancy A. Jencsok

Deputy Prosecutor

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, ) Trial Court case number: CR-06-116

)

Plaintiff/Appellant, ) Appeals Court case number: CA-06-01 1

)

vs. ) RESPONSE TO

) DEFENDANT/APPELLEE’S

Soto, Alma, ) MOTION TO DISMISS

)

Defendant/Appellee, )

)

Plaintiff/Appellant (“Appellant”), through counsel, hereby responds to

Defendant/Appellee’s (“Appellee”) Motion to Dismiss Appeal as follows:

ARGUMENT

A. The time limit for filing an opening brief begins running upon the transmission of

the record to the appellate court.

Appellee indicates in the statement of facts of her motion that Appellant’s

opening brief was filed “seventy-seven (77) days after filing the Notice of Appeal.”

Appellee seems to be implying that Appellant should have filed the opening brief sooner.

In point of fact, the deadline for filing an opening brief is triggered by the mailing of a

notice by the appellate court clerk that the record was filed. PYTRAP Rules 10(A) and

12(A). Upon mailing of such a notice, an appellant has thirty days to file and opening

brief. Rule 12(A). Appellee has not received any notice from the appellate court clerk.

B. It is not an appellant’s burden to insure that the record on appeal is transmitted to

the appellate court.

The Appellee has argued that it is the duty of the Appellant to prepare and

transmit the record on appeal. This argument is not supported by the wording of the

Appellate Rules, nor is it supported by logic.

PYTRAP Rule 10(B) states that “[i]f the appellant fails to timely file the record,

the chief justice may summarily dismiss the appeal.” However, as discussed below, other

portions of the Rules place the burden of preparing and transmitting the record squarely

upon the shoulders of the trial court clerk.

PYTRAP Rule 9(A) is titled “Composition of Record on Appeal; Transmission of

Record.” It discusses in detail the record on appeal. Section (A)(1) describes what

makes up the record. The record is “the original papers, exhibits, and other objects filed

with the trial court clerk, a reporter’s transcript, transcription of an electronic recording or

narrative or agreed statement, and copies of all entries.” Section (A)(2) directs how the

record shall be prepared. In a relatively short section comprising 73 words, the phrase

“the trial court clerk shall” is used three times. The trial court clerk shall number the

items comprising the record. The trial court clerk shall transmit the record. The trial

court clerk shall serve the index. All of these are duties given to the trial court clerk.

Nowhere in Section (A)(2), nor anywhere else in Section (A) does it state that “the

appellant shall.” Section (A)(3) does give the appellant permission to motion for an

extension of time. But there is no accompanying duty or responsibility mentioned, and

again, there is no mandatory language used anywhere in Section (A) in reference to the

appellant.

In addition to the explicit language of Rule 9(A), logic indicates that the trial

court clerk should be the one to prepare and transmit the record. The trial court clerk has

possession of all the elements of the record, most importantly the original pleadings and

the exhibits. The trial court clerk is the one most likely to have a complete record of the

proceedings. Other jurisdictions commonly require the trial court clerk to prepare and

transmit the record when there is an appeal.

' See for example Arizona Rules of Criminal Procedure, Rule 31.9 and Arizona Rules of Civil Procedure,

Rule 11.

C. Ordering a transcript is not mandatory.

Appellee argues in her motion that an appellant must order a transcript. That is

simply wrong. Rule 9(B) addresses the transcript. It does not require the ordering of a

transcript in all appeals. Rather, it simply requires that a transcript “of such parts of the

proceedings necessary for inclusion of the record” be ordered by the appellant. In this

case, Appellant made the decision that no part of the proceedings needed to be

transcribed. This case did not reach the stage of trial. It was dismissed at the time

originally scheduled for a pretrial hearing. There was never any testimony taken or

evidence submitted. The issues leading to the dismissal were thoroughly briefed, and the

trial court judge issued a detailed order explaining his decision. In Appellant’s judgment,

no transcript is necessary. If Appellee thinks that some, or all, of the proceedings should

be transcribed, there is a procedure set forth in the rules allowing an appellee to request

that some, or all, of the proceedings be transcribed. Those procedures are found at Rule

9(B)(2)(i) and (ii).

CONCLUSION

It is true that Rule 10(B) is inconsistent with Rule 9(A) as to who has the duty to

file a record on appeal. However, these two rules should not be given equal weight. Rule

10(B) provides for a discretionary punishment when an appellant fails to timely file a

record, but it does not state that an appellant actually has such a duty. Rule 9(A) on the

other hand, has very explicit language regarding the record and indicating that it is the

trial court clerk’s duty to prepare and file the record.

Rule 9(B) requires a transcript only when necessary. In this case, a transcript is

not necessary.

These appellate rules are new and have not yet been interpreted by this court. If

the court wishes Appellant to prepare and file the record and order a transcript, Appellant

will certainly do so. But to dismiss the appeal is not an appropriate remedy under the

circumstances.

WHEREFORE, Appellee’s motion should be denied.

DATED this 16" day of August, 2006.

MICAH SCHMIT

CHIEF PROSECUTOR

“VANCY.A. JENCSOK

Deputy Prosecutor

Counsel for Appellant

Original delivered to:

Clerk, Pascua Yaqui Tribe Court of Appeals

Copy mailed/delivered to:

Pascua Yaqui Public Defender

a,

On August 16, 2006 by: SK

IN THE PASCUA YAQUI TRIBE COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, Trial Court case number: CR-06-116

Plaintiff/Appellant, Appeals Court case number: CA-06-011

NOTICE THAT NO REPLY BRIEF

WILL BE FILED

Vs.

Soto, Alma,

Defendant/Appellee,

SO a ia a ae a

NOTICE IS HEREBY GIVEN that the Appellant will not file a Reply Brief.

Pursuant to PYTRAP Rule 12, the appeal should now be deemed at issue.

DATED this 11" day of August, 2006.

MICAH SCHMIT

CHIEF PROSECUTOR

J

Y A/ JENCSOK

Deputy Prosecutor

Counsel for Appellant

Original of foregoing and 5 copies delivered to:

Clerk, Pascua Yaqui Tribe Court of Appeals

Copy mailed/delivered to:

Pascua Yaqui Public Defender

On August 11, 2006 by: wy —

24

25

Nicholas A. Fontana

State Bar No. 014429 a

OFFICE OF THE PUBLIC DEFENDER ‘

7474 South Camino de Oeste

Tucson, AZ 85757

=.

Va Ob 0

@

Attorney for Appellee

IN THE PASCUA YAQUI COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, ) APPELLATE CASE NO. CA-06-010

)

Appellant, ) PASCUA YAQUI TRIBAL COURT NO::

) CR-06-116

vs. )

) PYTRAP 10 MOTION TO DISMISS

ALMA SOTO, ) APPEAL

)

Appellee. )

)

Comes now Appellee Alma Soto, through counsel, and respectfully moves the Chief Justice

of the Pascua Yaqui Court of Appeals to enter an order dismissing the appealing due to the

Appellant’s failure to comply with Rule 9, Title 3, Pascua Yaqui Judicial Titles and Codes (Revised).

The grounds for this motion ate set forth in the accompanying Memorandum of Points and

Authorities.

t

DATED this / eo day of August, 2006.

PASCUA YAQUI PUBLIC DEFENDER

V1 ae

“Michohas A. F ontana

Chief Public Defender

a)

24

25

MEMORANDUM OF POINTS AND AUTHORITIES

I FACTS.

On April 7, 2006, Appellant filed a timely Notice of Appeal appealing the order of dismissal

entered by the trial court on April 4, 2006. On June 23, 2006, seventy-seven (77) days after filing the

Notice of Appeal, the Appellant filed its Opening Brief.

The Appellant has not filed or served a transcript, agreed statement in lieu of transcript, or

requested additional time for the purpose of providing the Court of Appeals with record on appeal.

As result, there is no record on appeal for the Court of A

ppeals to review. The Appellant failed to

comply with any of the provisions of Rule 9, Title 3, Pascua Yaqui Judicial Titles and Codes.

II. RULE 10, TITLE 3, PASCUA YAQUI JUDICIAL TITLES AND CODES, REQUIRES

THE DISMISSAL OF THE APPEAL.

After a notice of appeal is filed, the trial court clerk has thirty (30) days to ptepate, index,

transmit the record on appeal to the Court of Appeals, and serve a copy of the index to all parties to

the appeal. PYTRAP 9(A)(2). The burden of perfecting the record on appeal falls to the appellant.

If the appellant requires additional time, the appellant may obtain an extension of time for

transmission of the record. PYTRAP 9(A)(3). However, the motion for an extension of time must

be made before the expiration of the time for transmittal. Id.

An appellant has ten (10) days to order a transcript for inclusion in the record on appeal.

PYTRAP 9(B). The appellant must file the original transcript with the appellate court clerk and

serve a copy on each party to the appeal no later than thirty (30) days from the date the notice of

appeal is filed. PYTRAP 9(B)(4). If the appellant fails to timely file the record, the chief justice of

the Pascua Yaqui Court of Appeals may summarily dismiss the appeal. PYTRAP 10(B).

The Appellant has failed to comply with a single provision of Rule 9, Pascua Yaqui Tribe

Rules of Appellate Procedure. There is no record or transcript. At no time did the Appellant

request an extension from the Court of Appeals for transmittal of the record. The Appellant has

24

25

utterly failed to comply with its obligation to secure a record on appeal for the Coutt of Appeal’s

consideration.

WHEREFORE Appellee Alma Soto respectfully moves the Honorable Chief Justice Robert

Williams to enter an order dismissing the Appellant’s appeal.

D2

DATED this } day of August, 2006.

PASCUA YAQUI PUBLIC DEFENDER

MI~ATZ S

ANY Y fen feo ~

Nicholas A. Fontana ¢ '

Chief Public Defender

24

25

CERTIFICATE OF SERVICE

et

ORIGINAL and five (5) copies of the foregoing delivered this /

Clerk of the Court of Appeals

Pascua Yaqui Court of Appeals

7474 S. Camino de Oeste

Tucson, AZ 85757

day of August, 2006, to:

COPY of the foregoing delivered this a ital day of August, 2006, to:

Micah Schmit

Chief Prosecutor

Office of the Prosecutor for the Pascua Yaqui Tribe

7474 S. Camino de Oeste

Tucson, Abt,

Nicholas A. Fontanf —

Chief Public Defender

Nicholas A. Fontana

State Bar No. 014429

OFFICE OF THE PUBLIC DEFENDER

7474 South Camino de Oeste CACL.0%

Tucson, AZ 85757

Attorney for Appellee

IN THE PASCUA YAQUI COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, ) APPELLATE CASE NO. CA-06-010

)

Appellant, ) PASCUA YAQUI TRIBAL COURT NO::

) CR-06-116

vs. )

) NOTICE OF ERRATA

ALMA SOTO, )

)

Appellee. )

)

Comes now counsel for the Appellee to give the Court and the Appellant notice that the

appellate case number on the Appellee’s Brief in Response, filed on July 27, 2006, is incorrect. The

correct appellate case number is CA-06-010. Counsel respectfully moves to amend the Brief in

Response to reflect the correct case number.

DATED this_ 267 day of July, 2006.

PASCUA YAQUI PUBLIC DEFENDER

2

Nicholas A. Fositana Ji

Chief Public Defender

24

25

CERTIFICATE OF SERVICE

ORIGINAL and five (5) copies of the foregoing delivered this 28

Clerk of the Court of Appeals

Pascua Yaqui Court of Appeals

7474 S. Camino de Oeste

Tucson, AZ 85757

COPY of the foregoing delivered this aett day of July, 2006, to:

Micah Schmit

Chief Prosecutor

Office of the Prosecutor for the Pascua Yaqui Tribe

7474 S. Camino de Oeste

Tucson, AZ 85757

_— y/

BY: PoxdSen. LAA

}éssica Vega TF

Legal Secretary

day of July, 2006, to:

IN THE PASCUA YAQUICOURT OF APPEAIS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

APPELLATE CASE NO. CA-06-011

)

PASCUA YAQUI TRIBE, )

) PASCUA YAQUI TRIBAL COURT NO::

Appellant, ) CR-06-116

)

vs. )

SOTO, ALMA,

Appellee.

BRIEF IN RESPONSE

Nicholas A. Fontana

State Bar No. 014429

OFFICE OF THE PUBLIC DEFENDER

7474 South Camino de Oeste

Tucson, AZ 85757

Attorney for Appellee

TABLE OF CONTENTS

Page

Statement OF PAC, 1. ccscwes eves cewnawinne eed 1404449 bbdiiomnnnnncenessusamenayetns pawmew vugnisedibaueas 1

Statemicat OF SSUES .nsness ss sswsnmansssasiedsd sdseaeWeccesueceecasaaneuussgaepoesesessinvewmaeee oes 4

PEPTIC sees sas svwnacnnes e's ba sommes 148449985 BAAAUIRUARsin nun aceon ommnenne 949 ppeUwONS ent ENMRGA@eR 4 TE Ted 5

I. The Trial Court properly found that the Appellant violated Rule 500, .........5

Title 9, Pascua Yaqui Judicial Titles and Codes (Revised).

Il. The Trial Court properly held that the Appellant’s failure to provide .........7

disclosure in a timely manner violated the Due Process clauses of

the Indian Civil Rights Act, 25 U.S.C. § 1302, ef seq., and Article 1,

§ 1(h) of the Constitution of the Pascua Yaqui Tribe.

WI. The Trial Court’s dismissal of the charges with prejudice as a sanction ....... 8

for the Appellant’s failure to comply with Rule 500, Title 9, Pascua

Yaqui Judicial Titles and Codes (Revised), was proper under Rule 504

Title 9, Pascua Yaqui Judicial Titles and Codes (Revised).

>

TABLE OF AUTHORITIES

Page

CASES

Brady v. Maryland, 373 U.S. 83 (1963)... ccc ccccce cece ces eeececussuceseeeeeeucerseceucereecess 2,8

Coin v. Mowa, No. AP-005-95 (Hopi 3/23/1997), 1997.NAHT.0000006 at 9 37 ....... ccs 5

http: //www.tribalresourcecenter.org

United States v. Robinson, 94 F.3d 1325 (9" Cit. 1996).......ccecccccccecececseeceusececeueceu cess 5,6

United States v. Sanchez-Lopex, 879 F.2d 541 (9" Cit. 1989)......0c.cccccceseeeceesceueceuseueeeces 5

CONSTITUTIONS

Article 1, § 1(f), Constitution of the Pascua Yaqui Ttibe............0.0c.ccccceceeceeceeceeceecen 2

Article 1, § 1(h), Constitution of the Pascua Yaqui Tribe..........0..00.0 ccc ecceceuceuceuees 2,4, 7

Article 8, § 1, Constitution of the Pascua Yaqui Tribe SAAAATONLE VE EA ESTN GAATOme w ew ve ewnncve y 4 ya 408 8

STATUTES & RULES

25 United States Code § 1302.00... 0. cccccecccececcescesuevceeveveveeecaeacnsvevuvurnererereeres 4,7

Title 1, Pascua Yaqui Judicial Titles and Codes, § 1.21.........00..0ccceccuccuecueceuuecseesees 8,9

Rule 9, Pascua Yaqui Tribe Rules of Appellate Procedure.........00.....cccccecceceeceueeuee 1,3

Rule 10, Pascua Yaqui Tribe Rules of Appellate Procedure...........0..0.ccccccceueeeceeceees 1,3

Rule 101, Title 9, Pascua Yaqui Judicial Titles and Codes (Revised).........cccccccseeeeceeeeees 6

Rule 500, Title 9, Pascua Yaqui Judicial Titles and Codes (Cc) oe passim

Rule 503, Title 9, Pascua Yaqui Judicial Titles and Codes (Co) ee 2

Rule 504, Title 9, Pascua Yaqui Judicial Titles and Codes (REVISED) ccc isiisscncnenveues 2,4, 8

OTHER

Comment, Rule 3.8, American Bar Association Model Rules of Professional Conduct ....... 7

ii

STATEMENT OF FACTS’

Appellee Alma Soto was arrested at her home by an officer of the Pascua Yaqui Law

Enforcement on January 27, 2006. On January 28, 200, the Appellant filed a criminal complaint in

the Pascua Yaqui Tribal Court charging the Appellee with two counts of possession of narcotics and

dangerous drugs and three counts of possession of drug paraphernalia. [Criminal Complaint, CR-

06-116, filed 1/28/06].

The Appellee appeared before the Pascua Yaqui Tribal Court for her Initial Hearing on

January 28, 2006. [Initial Hearing Order, CR-06-116, filed1/28/06]. The Appellee was in custody

and without legal counsel. [Id.]. Her Arraignment was scheduled for February 7, 2006. [Id]

The Appellee appeared for her arraignment on February 7, 2006, out of custody, but again

without counsel. [Arraignment Order, CR-6-116, filed 2/7/06]. She entered a plea of not guilty to

all charges and the matter was set for a Pretrial Conference on March 13, 2006.

On March 10, 2006, the Pascua Yaqui Public Defender entered a Notice of Appeatatice on

behalf of the Appellee. [Notice of Appearance, CR-06-116, filed 3/10/06]. At the same time,

counsel for the Appellee filed a Request for Disclosure. [Request for Disclosure, CR-06-116, filed

3/10/06].

At the Pretrial Conference on Match 13, 2006, counsel for the Appellee moved to continue

the Pretrial Conference to afford the Appellee an opportunity to obtain disclosure from the

Appellant. [Order Continuing Pre-Trial, CR-06-116, filed 3/13/06]. The trial court granted the

motion and re-set the Pretrial Conference for April 4, 2006. During the Pretrial Conference,

counsel for the Appellee requested that the Court consider the Appellant’s failure to provide

" The Appellee’s Statement of Facts is limited to information contained in the pleadings and orders

of the lower court. It appears that the Appellant has failed to file a transcript or narrative statement

of evidence as required by Rule 9, Pascua Yaqui Tribe Rules of Appellate Procedure. As a result,

notice has not been filed ot served as required by Rule 10, Pascua Yaqui Tribe Rules of Appellate

Procedute.

disclosure. [Minute Order, CR-06-116, filed 3/13/06]. The trial court noted that the Pascua Yaqui

Code of Criminal Procedure requires the Tribe to produce disclosure within ten days of the

arraignment, and that the Appellant was statutorily obligated to submit disclosure by February 17,

2006. [Id.]. The trial court ordered the Appellant to file a response to the Appellee’s Request of

Disclosure no later than March 17, 2006. [Id.].

The Appellant filed a Response to Disclosure & Tribe’s Notice of Witness and Supplemental

Disclosure on March 14, 2006. [Response to Disclosure & Tribe’s Notice of Witness and

Supplemental Disclosure, CR-06-116, filed 3/14/06]. The Appellee filed her Notice of Defenses

and Disclosure on March 16, 2006. [Defendant’s Notice of Defenses and Disclosure, CR-06-116,

filed 3/16/06].

On Match 23, 2006, the Appellee filed a Motion to Dismiss based on the Appellant’s

violation of Article 1, §§ 1(f) and (g) of the Pascua Yaqui Tribal Constitution, Rules 500, 503, and

504, Title 9, Chapter 2 of the Pascua Yaqui Judicial Titles and Codes (Revised), and Brady v.

Maryland, 373 U.S. 83 (1963).

On Match 24, 2006, the trial court issued an order directing the Appellant to file its response

to the Appellee’s Motion to Dismiss by April 3, 2006, and setting the matter for a hearing on April

4, 2006. [Minute Order and Order Setting Hearing on Defendant’s Motion to Dismiss, CR-06-116,

filed 3/24/06].

The Appellant did not file a response to the Appellant’s Motion to Dismiss as ordered by the

trial court. At the conclusion of the hearing on the Defendant’s Motion to Dismiss, the trial court

entered an order finding that the Appellant had failed to comply with the Pascua Yaqui Rules of

Criminal Procedure, that the Appellant’s failure to comply with the rules violated the Appellee’s

tight to due process of law, and entered an order dismissing the charges against the Appellee with

prejudice. [Order of Dismissal and Exoneration of Bond, CR-06-116, filed 4/4/ 06].

The Appellant filed a timely Notice of Appeal on April 7, 2006. [Notice of Appeal, CA-06-

011, filed 4/7/06]. After filing the Notice of Appeal, it appeats that the Appellant made no effort to

comply with the provisions of Rule 9, Pascua Yaqui Tribe Rules of Appellate Procedure (hereinafter

“PTYRAP 9”). As a result, the Clerk of the Court of Appeals has not filed a notice of tecord as

required by Rule 10, Pascua Yaqui Tribe Rules of Appellate Procedure.

Despite the absence of a record, the Appellant filed its Opening Brief on June 23, 2006.

[Appellant’s Opening Brief, CA-06-011]. A copy of the Opening Brief was served on counsel for

the Appellee on June 27, 2006.

STATEMENT OF ISSUES

1. Whether the trial court erred in finding that the Appellant’s failure to provide disclosure within

ten days of the Appellee’s was violation Rule 500, Title 9, Pascua Yaqui Judicial Titles and Codes,

(Revised).

2. Whether the trial court erred in finding that the Appellant’s failure to provide disclosure in a

timely matter violated the Appellee’s due process rights as guaranteed by the due process clauses of

the Indian Civil Rights, 25 U.S.C. § 1302, ef seq., and Article 1, § 1(h) of the Constitution of the

Pascua Yaqui Tribe.

3. Whether the trial court erred in dismissing the charges against the Appellee with prejudice,

pursuant to Rule 504, Title 9, Pascua Yaqui Judicial Titles and Codes (Revised).

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