The Arizona Supreme Court has been asked to weigh in on whether a private criminal defense attorney being paid by public funds to represent an indigent defendant qualified as a public defender when he was attacked by a client in a Pima County jail.
At issue is an Arizona statute which enhances a misdemeanor simple assault to a Class 6 felony of aggravated assault if the assault is committed against a “public defender while engaged in the execution of any official duties” or resulting from the execution of the public defender’s official duties.” The statute does not define when an attorney is considered a public defender.
In a petition for review to the supreme court, attorney Robert Kerry argues a Pima County judge and the Arizona Court of Appeals erred in finding that Roger Delane Wilson committed aggravated assault when he punched his court-appointed attorney at the jail in April 2018.
Last month the Arizona Supreme Court ordered the State of Arizona to respond to Wilson’s petition, which the Arizona Attorney General’s Office did on Jan. 12. There has been no announcement as to when the justices will consider hearing the Wilson’s case.
Court records show Wilson was being housed at the Pima County jail at the request of the Cochise County Sheriff’s Office while he awaited trial for the June 2017 fatal shooting of Jose Daniel Arvizu. Kelly was the fourth court-appointed attorney assigned to represent Wilson, who professed self-defense for the Arvizu shooting and had been declared an indigent defendant.
Wilson admitted punching Kelly, then age 80, in an effort to get a new lawyer appointed to his Cochise County murder case. Kelly suffered facial cuts and bruises in the jail attack but was not seriously injured.
A Pima County grand jury indicted Wilson for aggravated assault under Arizona Revised Statute 13-1204, which covers various types of criminal assault. He was convicted and sentenced to 270 days in jail with credit for the same number of days already served in custody.
On appeal, Wilson conceded Kelly was under contract with Cochise County but argued that the attorney was not employed as a public defender. As such the attack on Kelly should have been charged as a misdemeanor, Wilson argued.
In its Oct. 29 opinion, the Arizona Court of Appeals found it made no difference whether Kelly was contracted by or employed by the government to provide legal services to Wilson. The opinion also noted the term “public defender” was not defined in ARS §13-1204 but other statutes treat contracted indigent defense counsel the same as public defenders under various circumstances.
“We must therefore apply the common meaning of the plain terms of the statute, referring to dictionaries as necessary,” the appellate opinion reads. “We can conjure no logical or public policy reason why the same rationale would not apply to the legislature’s efforts to protect contract ‘public defenders’ from assault in the course of their work for indigent criminal defendants.”
That is the same argument put forth by Deputy Solicitor General Linley Wilson in her Jan. 12 response to the petition for review.
“This Court should deny review of Wilson’s petition for review because the court of appeals correctly applied the plain language of A.R.S. § 13–1204(A)(8)(i) in upholding the trial court’s ruling,” she wrote. “Because the court of appeals correctly applied the plain language of the statute, this Court’s review is unwarranted.”
In the Cochise County case, Wilson was convicted Oct. 1 of premediated murder and is currently serving a natural life sentence, both of which he is appealing on several grounds. He was represented at trial by his eighth court-appointed attorney.