Flip Flopping Court Orders Felony Conviction Can Be Appealed

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(Photo by Tim Evanson/Creative Commons)

A Maricopa County man whose 2001 felony drug conviction was designated as a misdemeanor in 2017, only to be changed back to a felony in 2018 without a hearing has the right to appeal the action, according to the Arizona Court of Appeals.

James Michael Harries was sentenced to three years of probation in 2001 after he pleaded guilty to an undesignated Class 6 felony of solicitation to possess a dangerous drug. A Class 6 is the lowest felony classification, and in some cases a defendant is allowed an opportunity to apply upon completion of sentence to designate the conviction as a Class 1 misdemeanor.

Harries applied in August 2017 to Judge Erin O’Brien Otis of the Maricopa County Superior Court to have his old Class 6 felony conviction designated as a misdemeanor. At the time the Maricopa County Attorney’s Office took no position on the request.

Otis issued an order in September 2017 designating the conviction as a misdemeanor. But less than three months later, the county attorney’s office asked the judge to reverse the order, alleging Harries made “a false avowal” on his application.

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That false avowal related to one Class 4 felony charge filed against Harries in July 2016. The charge alleged Harries, now 53, committed weapons misconduct in March 2016 by being a felon in possession of a dangerous weapon.

The weapons charge was dismissed in August 2017, the same time Harries applied to have his 2001 conviction changed to a misdemeanor. However, around the same time a new grand jury issued another indictment charging Harries with one count of weapons misconduct for the same 2016 incident.

In February 2018, Otis reversed her redesignation order without a hearing on the matter and restored Harries’ 2001 conviction as an undesignated felony. The judge explained she would have denied Harries’ application if she had known at the time that he was the subject of a recent criminal prosecution.

Harries filed a notice of appeal on July 18, 2018, just six days after Otis issued a ruling confirming her February 2018 order. Nearly one year later, the Arizona Court of Appeals – Division One ruled that Harries’ deadline to appeal the judge’s felony to misdemeanor back to felony order started to run at the time of Otis’ February 2018 order, not the July 2018 ruling.

The result, according to a May 2019 appellate decision, was that Harries missed his appeal opportunity by several months. However, the court of appeals put the matter on hold while Harries filed a petition for post-conviction relief asking Otis to rule the mess up was not his fault.

But Harries didn’t get the ruling he wanted. Instead, Otis dismissed the petition in July 2019, ruling that she was “unable to conclude that the failure to timely file the notice of appeal was without fault of the Defendant.”

Harries then appealed again. After more than one year of waiting, his case was transferred from Division One of the court of appeals -which normally hears cases from Maricopa County Superior Court- to Division Two based in Tucson.

In its Sept. 17 decision, the Division Two appellate panel ruled 3-0 that Otis “did not advise (Harries) of his right to appeal” as required upon issuing the February 2018 order. Therefore, it was not Harries’ fault that he failed to file a timely notice of appeal, the judges ruled.

The decision also notes Otis abused her discretion by dismissing Harries’ petition for post-conviction relief. As a result, Harries is now permitted -30 months later- to pursue his appeal of the February 2018 order which reinstated his felony conviction.

Earlier this year Harries pleaded guilty to one Class 4 count of weapons misconduct stemming from the March 2016 incident. He is currently serving a two-year term of probation.

Harries is represented in his appeal by Craig Rosenstein of the Rosenstein Law Group in Scottsdale.