STATE v. William Whitley, Appellee, (2026)

OPINION

¶1 The State appeals the superior court's dismissal with prejudice of the criminal charges against Matthew Rodriguez, Susan Rodriguez, Amanda Dahlstrom, and William Whitley. Although the superior court did not abuse its discretion in dismissing the charges, it did not make the finding necessary for the dismissal to be with prejudice, and the record does not support such a finding. We therefore affirm the court's dismissal but modify it to be without prejudice.

FACTS AND PROCEDURAL BACKGROUND

¶2 In September 2019, the State indicted Susan Rodriguez on forty-one counts and Amanda Dahlstrom on sixteen counts of assorted white-collar crimes including fraudulent schemes and artifices, money laundering, unlawful telephone solicitation, theft, and theft from a vulnerable adult. In August 2020, the State indicted Matthew Rodriguez on eleven counts and William Whitley and Susan Rodriguez on nine counts of similar crimes.

¶3 Between 2020 and 2024, the court continued trial at least thirteen times. In December 2024, the superior court found that discovery was still not complete and continued the trial to March 3, 2025. Although both parties requested continuances for various reasons, the most common and significant reason was repeated disclosure and discovery delays.

¶4 Just twenty-four days before trial, the State disclosed over 1,000 pages of discovery. Then, just sixteen days before trial, it disclosed two victim interviews from at least five years earlier. Less than two weeks before trial, the State disclosed over 130,000 pages of discovery, and then an additional 5,000 pages the next day. The last-minute disclosures totaled over 140,000 pages, plus the two witness interviews. The State admitted that the amount of late disclosure was “voluminous” and conceded that it had made a “significant” “oversight” in failing to timely disclose the documents. It acknowledged that “[t]here is no way for defense to review this many documents on our current trial schedule” and requested a hearing “to discuss this matter.”

¶5 All four defendants sought to dismiss the charges with prejudice. The defendants highlighted the egregiousness of the late disclosure, argued a continuance would not sufficiently solve the issue, and claimed they were prejudiced; but they did not specifically explain how the late disclosure prejudiced their defense. After a hearing, the court dismissed the cases against the defendants with prejudice, calling the State's delayed disclosure “extraordinary.” The court noted that none of the defendants “specifically assert a violation of their Sixth Amendment right,” and explicitly declined to decide the issue based on speedy trial rights. It nevertheless found that the State's “late disclosures” placed the defendants “in the untenable position of having to accept a delay in the resolution of the charges against them in order that they may assess the voluminous evidence now propounded by the State.” It found that continuing the trial “c[ould ]not easily be accomplished,” given the need to consider the schedules of four defense attorneys, and that the trial could not be reset “before late summer or early fall.” It further found expecting the defendants “to continue to live under the shadow of the multiple and very serious charges against them solely based on the State's failures of disclosure so late in the trial process” would be “unconscionable.” The court therefore found that the State's late disclosures “have severely prejudiced” the defendants and that “dismissal with prejudice is the only appropriate remedy.”

¶6 The State appealed and we have jurisdiction under Article VI, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4031.1.

DISCUSSION

¶7 The State concedes, both to the superior court and to this Court, that its late disclosure was error for which sanctions were permitted. The State argues, however, that “[t]he grant of dismissal with prejudice in this case was disproportional to the harm and lesser sanctions were available, thereby constituting an abuse of discretion.” It asks this Court to “remand this matter to the superior court with instructions to impose a lesser sanction.” We review both the dismissal of criminal charges and sanctions for disclosure violations for an abuse of discretion. State v. Lemming, 188 Ariz. 459, 460, 937 P.2d 381, 382 (App. 1997); State v. Jessen, 130 Ariz. 1, 4, 633 P.2d 410, 413 (1981).

¶8 When the superior court finds that a party has committed a disclosure violation, it “must order disclosure as necessary and impose an appropriate sanction.” Ariz. R. Crim. P. 15.7(b). In determining the appropriate sanction, the court “should seek to apply sanctions that affect the evidence at trial and the merits of the case as little as possible, since the rules of [c]riminal [p]rocedure are designed to implement, and not to impede, the fair and speedy determination of cases.” State v. Smith, 140 Ariz. 355, 359, 681 P.2d 1374, 1378 (1984). Dismissing the prosecution is one possible sanction. Ariz. R. Crim. P. 15.7(c). If the court does so, “it must state on the record its reasons for ordering dismissal,” and the dismissal is presumed to be without prejudice “unless the court finds that the interests of justice require that the dismissal to be with prejudice.” Ariz. R. Crim. P. 16.4(c)–(d).

¶9 Before granting a dismissal, the superior court must “balance the conflicting interests involved, society's and the defendant's.” State ex rel. Jenney v. Superior Court, 122 Ariz. 89, 90, 593 P.2d 312, 313 (App. 1979). The court should consider, alongside “other relevant circumstances” whether “less stringent sanctions can be used.” Smith, 140 Ariz. at 359, 681 P.2d at 1378.

¶10 The record shows that the court considered the parties’ conflicting interests and the relevant circumstances and had ample reason to choose dismissal as the appropriate sanction. The State indicted the defendants back in 2019 and 2020, yet the trial was continued thirteen times between 2020 and 2024, and disclosure delays were the most common reason for the continuances. Then, less than a month before the trial date of March 3, 2025, the State disclosed over 1,000 pages of discovery. Just after that, the State disclosed interviews from two witnesses that it had conducted five years earlier. And then, merely two weeks before trial, the State disclosed an additional 135,000 pages of discovery. In total, the State disclosed over 140,000 pages of discovery less than a month—the bulk within two weeks—before the trial.

¶11 The sheer volume of the late disclosure guaranteed that trial would have to be continued to allow defense counsel to review and evaluate the evidence. Of course, the court had a full range of sanctions, many of which—precluding the State from using the late-disclosed evidence or holding the State in contempt, for example—would not have required the State to begin the prosecution anew. Ariz. R. Crim. P. 15.7(c). But given the egregiousness of the State's error, which it does not contest, the court cannot be faulted and did not abuse its discretion in finding that dismissal was the appropriate sanction.

¶12 The court can be faulted, however, for ruling that the dismissal was with prejudice, prohibiting further prosecution of the criminal allegations in this case. Dismissal is without prejudice unless “the interests of justice require” it be with prejudice. Ariz. R. Crim. P. 16.4(d). The “most important factor” in this determination is whether the error causing the dismissal has prejudiced the defendant. State v. Gilbert, 172 Ariz. 402, 404–05, 837 P.2d 1137, 1139–40 (App. 1992). “The type of harm that will justify dismissal with prejudice is a harm that would actually impair the accused's ability to defend against the charges.” In re Arnulfo G., 205 Ariz. 389, 391 ¶ 9, 71 P.3d 916, 918 (App. 2003); accord Gilbert, 172 Ariz. at 405, 837 P.2d at 1140 (dismissal with prejudice improper when the defendant “failed to articulate” how the error “hurt her ability to defend against the charges”).

¶13 In finding that a dismissal should be with prejudice, the superior court need not utter the “magic words” “interests of justice,” Arnulfo G., 205 Ariz. at 391 ¶ 12, 71 P.3d at 918, but it must make a reasoned finding “that to do otherwise would result in some articulable harm to the defendant,” State v. Wills, 177 Ariz. 592, 594, 870 P.2d 410, 412 (App. 1993).² Mere annoyance and inconvenience to a defendant and counsel that a continued prosecution may cause is not enough to warrant dismissal with prejudice. Gilbert, 172 Ariz. at 404–05, 837 P.2d at 1139-40; State ex rel. DeConcini v. Superior Court, 25 Ariz. App. 173, 175, 541 P.2d 964 (1989) (financial and emotional burdens are not prejudicial).

¶14 The court's dismissal with prejudice finding did not meet these standards. Its finding did not turn on the defendants’ ability to defend against the charges but, instead, depended only on the difficulty in coordinating the schedules of the four defense attorneys—preventing retrial until “late summer or early fall”—and the burden on the defendants “to live under the shadow” of the pending charges. But as noted, the annoyance and inconvenience of rescheduling this trial for the defendants’ attorneys and the looming threat of continued prosecution for the defendants is insufficient to show harm to the defendants’ ability to defend the case. Gilbert, 172 Ariz. at 404–05, 837 P.2d at 1139–40; see also DeConcini, 25 Ariz. App. at 175, 541 P.2d 964. In fact, because the court dismissed the prosecution, the defendants will not be living in any shadow of prosecution unless the State successfully reindicts them. And delay itself, without any concomitant harm to the ability to defend, is insufficient to warrant dismissal with prejudice.³ See Wills, 177 Ariz. at 594, 870 P.2d at 412 (“[T]he mere passage of an arbitrary time limit is not sufficient to warrant dismissal of a case with prejudice.”).

¶15 The defendants certainly argued before the superior court that the State's late disclosure was egregious and warranted dismissal of the charges with prejudice, but they never articulated harm to their defense that could not have been cured by an appropriate extension of the trial date or by a dismissal without prejudice. And likewise at oral argument before this Court, the defendants emphatically decried how late and how voluminous the disclosure was. But they never articulated how their defense would be harmed if they received sufficient time to review the disclosure, despite repeated requests from this Court to do so.

¶16 Thus, while the court did not abuse its discretion in dismissing the charges against the defendants, it did err in dismissing them with prejudice. We therefore affirm the order to the extent it dismisses the charges but modify it so that the dismissal is without prejudice. See State v. Granados, 172 Ariz. 405, 408, 837 P.2d 1140, 1143 (App. 1991) (order dismissing the charge with prejudice vacated, “leaving intact the dismissal without prejudice”); Gilbert, 172 Ariz. at 405, 837 P.2d at 1140 (same).

¶17 The partial dissent agrees with our conclusion that the superior court did not abuse its discretion in dismissing the charges but takes issue with ruling that the court erred in dismissing with prejudice. Infra ¶¶ 23–25. The partial dissent would rather remand to the superior court so that it can consider all four factors listed in Arizona Rule of Criminal Procedure (“Rule”) 15.7(c) before determining the proper sanction. Infra ¶¶ 23–25, 72. The partial dissent notes that the superior court did not state in its ruling whether the late-disclosed information was significant to the defendants’ defense or what effect a sanction would have on the defendants, two of the Rule 15.7(c) factors. Infra ¶ 27. The partial dissent also argues that since dismissal with prejudice is appropriate only when the late disclosure has hurt the defendants’ ability to defend their case, and the superior court did not make that finding, the court should be given the opportunity to decide that issue. Infra ¶¶ 25, 72.

¶18 But the problem is not that the superior court failed to make findings on the factors listed in Rule 15.7(c). Those factors help the superior court determine the “appropriate sanction for nondisclosure or untimely disclosure,” Ariz. R. Crim. P. 15.7(c), and we all agree that the court had sufficient reason to dismiss the charges as a sanction for the late disclosure. The problem is that the court made the dismissal with prejudice on grounds that cannot justify that sanction. The superior court did not find that the late disclosure hurt the defendants’ ability to defend themselves against the charges—the only ground that justifies dismissal with prejudice. Wills, 177 Ariz. at 594, 870 P.2d at 412; Gilbert, 172 Ariz. at 404–05, 837 P.2d at 1139-40. The court found merely that the late disclosure made rescheduling the trial difficult and left the defendants in a “shadow” of pending charges until retrial. Such grounds not only do not justify dismissal with prejudice, Gilbert, 172 Ariz. at 404–05, 837 P.2d at 1139-40; DeConcini, 25 Ariz. App. at 175, 541 P.2d 964, they are satisfied with a simple dismissal without prejudice. The need to reschedule the trial and the “shadow” of pending charges evaporate once the charges are dismissed and will never exist again unless the State succeeds with a new indictment. The superior court thus erred in ruling that dismissal with prejudice was an appropriate sanction.

¶19 The partial dissent further argues that remand is warranted because no appellate decision gave the superior court sufficient direction on the finding necessary to justify a dismissal with prejudice. Infra ¶ 25. But this Court has stated the standard at least since 1991: defendants must show that the State's error hurt their ability to defend against the charges. Gilbert, 172 Ariz. at 405, 837 P.2d at 1140; Wills, 177 Ariz. 592, 594, 870 P.2d 410, 412; see also Arnulfo G., 205 Ariz. at 391 ¶ 9, 71 P.3d at 918. Nothing shows that the superior court could have been uncertain of the necessary standard.

¶20 Remanding to the superior court for a new finding is unjustified when it had the opportunity to rule on grounds that would have been sufficient and instead chose grounds that were insufficient. This is especially true because the record before the superior court and this Court shows no grounds to find that the late disclosure will hurt the defendants’ ability to defend themselves once they have adequate time to consider the late-disclosed information, a fact emphasized by the defendants’ failure to articulate any harm before the superior court or this Court. With respect, the partial dissent's arguments are not well-taken, and remand is not warranted.

CONCLUSION

¶21 This Court affirms the superior court's dismissal but modifies the dismissal to be without prejudice.

¶22 About five years after indicting the defendants and less than four weeks before the firm trial date, the State made what the superior court called “extraordinary disclosures.” Just 24 days before trial, the State disclosed 1,239 pages of documents to all four defendants. The State disclosed another 113 documents five days later. Those 2 disclosures included 30 categories of documents, and the State intended to use documents from 15 of those categories in the State's case in chief. After that, just 16 days before trial, the State finally disclosed two, five-year-old victim interviews, at least one of which the defendants argue included exculpatory evidence. And in that late disclosure was evidence showing the defendants had created websites—an issue the State forced the defendants to litigate extensively earlier in the case without that exculpatory evidence. But wait, there's more. Two of the four defendants were even worse off. For them, the State disclosed a staggering 140,292 pages of documents less than 2 weeks before trial (again 5 years after the State indicted them). The superior court, after full briefing and argument, then dismissed the charges with prejudice as a sanction.

¶23 Against that backdrop, I concur in part because I agree the superior court did not abuse its discretion when it dismissed the charges based on the State's disclosure abuses. I dissent in part because the flaws in the superior court's overall findings warrant remand for further proceedings. Indeed, I must dissent because (as I discuss below and contrary to the majority's conclusion) the record does show grounds to find that the late disclosure may hurt the defendants’ ability to defend themselves once they have adequate time to consider the late-disclosed information. The superior court thus must reconsider the issue on remand.

¶24 Though it may facially appear inconsistent, I concur in part because the record and the State's opening brief support dismissal, not the superior court's findings. As the majority says, the State concedes it deserved to be sanctioned. True enough, and the State agreed dismissal was an appropriate sanction. As to any sanction other than dismissal with prejudice, the State said: “the superior court could have dismissed the case without prejudice, or limited the State's arguments at trial, and still have complied with the Rule.” (Emphasis added.) The State thus conceded to dismissal in its opening brief. And that was the State's last word on the matter because it never filed a reply brief. As such, the State's sole point in this appeal is just “dismissal with prejudice is a bridge too far—and an abuse of [the superior court's] discretion.”

¶25 I thus can get to dismissal, but I would remand for further proceedings. See State v. Tankersley, 211 Ariz. 323, 325, 121 P.3d 829, 831 (2005); see also Miller v. Bd. of Supervisors of Pinal Cnty., 175 Ariz. 296, 300, 855 P.2d 1357, 1361 (1993). I dissent in part because no appellate decision has given the superior courts sufficient direction on the findings they must make to support dismissal with prejudice under Rules 15.7(c) and 16.4(d), Arizona Rules of Criminal Procedure. For that reason, I would give the superior court here that direction and the opportunity to make those required findings. See Tankersley, 211 Ariz. at 325, 121 P.3d at 831 (remanding to the superior court to enter “specific findings of fact” and to “state expressly its conclusions of law relating to each issue considered” because failure to make specific findings and conclusions prevented the Arizona Supreme Court from effectively analyzing the petition for review).

¶26 This case highlights the important purpose that specific findings and conclusions play when assessing a dismissal with prejudice. See id.; see also Miller, 175 Ariz. at 300, 855 P.2d at 1361. Such findings and conclusions are necessary for the court to assess the dismissal with prejudice here, just as they were to assess a petition for post-conviction relief in Tankersley. 211 Ariz. at 325, 121 P.3d at 831. Miller makes the point well: when the superior court “fails to make or makes insufficient findings of fact and conclusions of law, a reviewing court should remand the case to the [superior] court for further findings.” 175 Ariz. at 300, 855 P.2d at 1361; see also Francine C. v. Dep't of Child Safety, 249 Ariz. 289, 299 ¶ 27, 468 P.3d 1250, 1260 (App. 2020) (citing Miller and remanding for additional findings and conclusions because the appeal involved disputed issues of fact so the court could not decide the appeal without those additional findings); Stein v. Stein, 238 Ariz. 548, 551 ¶ 12, 363 P.3d 708, 711 (App. 2015) (citing Miller and remanding for additional findings because court could not “ascertain the basis for the” superior court's award).

¶27 Here, the superior court must make more particularized findings and conclusions so the court here can resolve whether dismissal with prejudice is appropriate. Id. As to the first Rule 15.7(c) factor, the findings did not address whether the late disclosed documents themselves were significant or explain why. Findings under the second and third Rule 15.7(c) factors also were lacking. Under the second 15.7(c) factor, the findings did not address the impact on the defendants beyond the delay. But the effect of the State's “extraordinary,” “voluminous,” and remarkably late disclosure runs far deeper than mere delay; the State's disclosure abuses denied the defendants the raw materials they needed to prepare their defense. That is especially true here because the acts underlying the charges occurred 10 years earlier and involved complicated financial transactions with allegedly elderly and vulnerable victims. See R.S. v. Thompson, 251 Ariz. 111, 116 ¶ 16, 485 P.3d 1068, 1073 (2021) (“[T]he due process right to present a complete defense is vitiated if a defendant is prevented access at the pretrial discovery stage to the ‘raw materials’ necessary to build his defense, rendering his trial fundamentally unfair.”). Under the third Rule 15.7(c) factor, the superior court did not weigh the sanction's impact on the defendants against the impact on the victims. And we should not fault the superior court for not making Rule 16.4(d) findings that dismissal with prejudice is in the interests of justice when the court has never directed the superior court to do so in a published opinion.

¶28 As a result, the grounds for remanding for further findings and conclusions here are as strong as they were in Tanksersley. See 211 Ariz. at 325, 121 P.3d at 831; see also Miller, 175 Ariz. at 300, 855 P.2d at 1361. And the majority does not explain why the superior court should not have the opportunity to consider the effect on the two defendants who received more than 140,000 pages of documents less than 3 weeks before trial.

I. The State's unexplained, untimely, “extraordinary,” and self-described “voluminous” disclosure occurred about a decade after the alleged crimes occurred, about five years after the State indicted the defendants, and had a substantially different effect on two of the four defendants.

¶29 The charged acts are alleged to have occurred in 2015 and 2016. Several years later, in September 2019, the State brought a 41-count indictment against Susan Rodriguez and Amanda Dahlstrom. In August 2020, the State brought an 11-count indictment against two new defendants (Matthew Rodriguez and William Whitley) and one of the original defendants (Susan Rodriguez). The State charged the defendants with crimes arising out of a telemarketing business. The State alleged the defendants committed assorted white-collar crimes, including fraudulent schemes and artifices, illegal control of an enterprise, money laundering, unlawful telephone solicitation, and theft (including theft from a vulnerable adult).

¶30 The case was subject to significant delays, and the trial was continued at least 13 times between the 2020 indictment and the 2025 motion to dismiss. After the case was set for trial for October 28, 2024, the superior court continued the trial three more times—first to October 29, 2024, and second to January 13, 2025. The third continuance happened on December 17, 2024, when the superior court found discovery still was incomplete and continued the trial to March 3, 2025, declaring it a firm trial date. Though the State and the defendants share responsibility for some delays, the record shows the State created significant delays because of consistent disclosure issues. And the superior court made that point in its order dismissing the case with prejudice.

A. About three weeks before the firm trial date, the State made what the superior court called “extraordinary disclosures.”

¶31 I break the late-disclosed documents into two categories. The first category affects all four defendants. In that first category, between two and three weeks before trial, the State disclosed (1) nearly 1,400 pages and (2) two victim interviews (MB's and NW's) taken by the case agent five years earlier. The second category affects just two defendants (Mr. Rodriguez and Mr. Whitley) because the State had disclosed that second category of documents to the other two defendants years earlier. In that second category, less than two weeks before trial, the State disclosed more than 140,000 pages of documents.

¶32 At that point, all four defendants sought to dismiss the charges based on the State's late disclosure.

B. The first category of late disclosures included new evidence the State intended to use at trial and exculpatory evidence all four defendants would want to use at trial, though the State disputes its exculpatory value.

¶33 The first category of late disclosure included grand jury subpoenas and responses, written statements from alleged victims, credit card statements, invoices, and defendants’ bank records. The State said it believed it had disclosed the first category earlier, but could prove it had disclosed just three of those pages. The State identified 30 types of documents in the first category. And the State said it intended to use documents from 15 of those document types.

¶34 To explain the delay in disclosing the first category, the State said it received a compressed electronic file—a zip file—from the case agent in December 2023. The State did not say when the case agent received them or why the case agent did not give them to the State until then. The prosecutor said he asked a paralegal to disclose the documents, but said he later learned the paralegal disclosed only a few of them because of an error when extracting them from the zip file. The State did not correct that error for 15 months, waiting until just 24 days before trial.

¶35 The State concedes it has never explained why it took 15 months to identify the error. The State also never explained why it delayed disclosing 113 pages of documents in the first category because they did not come from the zip file. And the State also was silent on why it did not disclose the two, five-year-old victim interviews until the defendants asked for them.

¶36 The defendants argue the first category of late disclosed documents are relevant to—and contain exculpatory information supporting—their defenses. For example, the defendants argue the credit card statements and other business records were exculpatory, in part because they show the defendants had created websites. The defendants also argue MB's interview included exculpatory evidence. In MB's interview, she answered “No” when the case agent asked, “Now they, did they, promise you that you would get a certain amount of money back or make a guarantee to you or something like that?” The case agent followed up on that point, asking, “I'm saying during that, some of those initial calls, did they tell you you were going to make money doing this?” MB answered, “Mhhm. No. No. I know for positive, no.” The defendants expressed heightened concern about this late disclosure because the State said it had decided it would not call MB, a named victim, to testify at trial. The State argued the superior court should not put much weight on the interview's exculpatory nature.

¶37 The State made similar arguments about the exculpatory value of the late-disclosed evidence showing the defendants created websites. But that issue was the subject of extensive pre-trial litigation in which the State took the position the defendants had not created any. I cannot stress that point enough because the State litigated that issue while withholding from the defendants the very exculpatory evidence at issue here, evidence showing the defendants had created websites. With that point alone, the State's unexplained delay already hurt the defendants’ ability to defend themselves. This point leaves no doubt the State for unexplained reasons withheld the very exculpatory “raw materials” the defendants here needed to build their defense. See R.S., 251 Ariz. at 117 ¶15, 485 P.3d at 1074.

C. The State's limited explanation for the late disclosure raises additional concerns because it came from a prosecution team that remained the same during the life of the case.

¶38 The same prosecutor and case agent were involved in the case from the beginning. And they were responsible for the disclosure issues. The case agent was expected to be at the hearing on the motion to dismiss. Indeed, the superior court appointed an attorney to represent the case agent during his testimony. But the case agent never appeared, and the State never explained his absence. As the defense argued, if the case agent had appeared, he could have explained some of the disclosure delays. And because the case agent did not appear, the superior court was left with no evidence of the case agent's explanation for the delay.

¶39 Despite the continuity of the State's team, the State offered little explanation for the late disclosure. That point is key. The same prosecutor who was responsible for the late disclosure also wrote at least some grand jury subpoenas included in the late disclosure. And those subpoenas directed the responses (also disclosed late) to go to the same case agent who has worked the case from the beginning—the same case agent who took the victim statements but did not produce them for years and then only after the defendants asked for them. The same case agent who possessed the exculpatory receipts showing the defendants set up websites but did not produce them until long after the State forced the defendants to litigate that very issue.

II. The superior court can dismiss criminal charges with prejudice based on the State's discovery or disclosure violations after it (1) makes specific findings under Rule 15.7 and (2) finds the interests of justice require dismissal with prejudice under Rule 16.4.

¶40 The court defers to the superior court's “explicit or implicit factual findings and will affirm as long as such findings are supported by reasonable evidence.” Roberts v. City of Phoenix, 225 Ariz. 112, 119 ¶ 24, 235 P.3d 265, 272 (App. 2010). The court will “not reweigh the evidence or reassess credibility issues on appeal.” Williams v. King, 248 Ariz. 311, 317 ¶ 26, 460 P.3d 303, 309 (App. 2020) (citing Ruesga v. Kindred Nursing Ctrs., L.L.C., 215 Ariz. 589, 597 ¶ 27, 161 P.3d 1253, 1261 (App. 2007) (“To the extent the parties presented facts from which conflicting inferences could be drawn ․, it was for the trial court, not this court, to weigh those facts.”).

¶41 In a criminal case, the superior court must base a dismissal with prejudice on a reasoned finding “that to do otherwise would result in some articulable harm to the defendant.” Wills, 177 Ariz. at 594, 870 P.2d at 412 (vacating a dismissal with prejudice after determining the superior court's finding that the interests of justice required dismissal with prejudice was unsupported by the record because there was no articulable harm); State v. Granados, 172 Ariz. 405, 407–08, 837 P.2d 1140, 1142-43 (App. 1991) (vacating dismissal with prejudice because the record did not support such dismissal and encouraging express record findings about the interests of justice).

¶42 Unlike in a civil case, before granting a dismissal in a criminal case, the superior court must “properly balance the conflicting interests” of both society and the defendant. State ex rel. Jenney v. Superior Ct., 122 Ariz. 89, 90, 593 P.2d 312, 313 (App. 1979). In doing so, the superior court must consider “the relevant competing interests of the defendant and the state in light of the particular circumstances of each case.” State v. Huffman, 222 Ariz. 416, 422 ¶ 15, 215 P.3d 390, 396 (App. 2009). Huffman provided a nonexclusive list of relevant circumstances to weigh depending on the case. They include:

[T]he number of prior mistrials and the outcome of the juries’ deliberations, so far as is known; the character of prior trials in terms of length, complexity, and similarity of evidence presented; the likelihood of any substantial difference in a subsequent trial, if allowed; the trial court's own evaluation of the relative strength of each party's case; the professional conduct and diligence of respective counsel, particularly of the prosecuting attorney; the seriousness and circumstances of the charged offense; the extent of harm resulting from the offense; the defendant's history, character, and condition; the length of any pretrial incarceration or any incarceration for related or similar offenses; the purpose and effect of imposing a sentence authorized by the offense; the impact of dismissal on public confidence in the judicial system or on the safety and welfare of the community in the event the defendant is guilty; the existence of any prejudice to the defendant as the result of the passage of time; and the attitude of the complainant or victim with respect to dismissal of the case.

Id. at 421–22 ¶ 14 (cleaned up). The most important factor is whether the delay in prosecution would result in prejudice to the defendant such that the dismissal would “actually hurt [the defendant's] ability to defend against the charges.” State v. Gilbert, 172 Ariz. 402, 404–05, 837 P.2d 1137, 1139–40 (App. 1991); State v. Hannah, 118 Ariz. 610, 611, 578 P.2d 1039, 1040 (App. 1978). “[A] judge is required to actually weigh the factors that bear on the [prejudice].” Garcia, 170 Ariz. at 248, 823 P.2d at 696.

¶43 When the superior court finds the State committed a disclosure violation in a criminal prosecution, that court “must order disclosure as necessary and impose an appropriate sanction.” Ariz. R. Crim. P. 15.7(b). The superior court need not impose any sanction if it finds either: “(1) the failure to comply was harmless; or (2) the party could not have disclosed the information earlier with due diligence and the party disclosed the information immediately upon its discovery.” Id.

¶44 When setting an appropriate sanction for a disclosure violation, the superior court must consider these four factors:

1. “the significance of the information not timely disclosed,”

2. “the violation's impact on the overall administration of the case,”

3. “the sanction's impact on the party and the victim, and”

4. “the stage of the proceedings when the party ultimately made the disclosure.”

Ariz. R. Crim. P. 15.7(c).

¶45 Rule 15.7(c)’s listed factors are not exclusive. See Huffman, 222 at 421–22 ¶ 14, 215 P.3d at 395–96 (identifying extensive, nonexclusive list of relevant circumstances to weigh when considering a discovery sanction in a criminal case); cf. State v. Smith, 123 Ariz. 243, 252, 599 P.2d 199, 208 (1979) (saying superior court must consider “any other relevant circumstances” before imposing a discovery sanction). The superior court thus must consider the four Rule 15.7(c) factors and any other relevant circumstances under the totality of the circumstances when determining the appropriate sanction for a discovery or disclosure violation. Smith, 123 Ariz. at 252, 599 P.2d at 208 (saying before the superior court precludes witness testimony “as a discovery sanction, the court must make an inquiry into the surrounding circumstances”); State v. Smith, 140 Ariz. 355, 359, 681 P.2d 1374, 1378 (1984) (same).

¶46 After considering the four Rule 15.7(c) factors and any other relevant circumstances, the superior court has broad discretion when setting the sanction, including:

(1) precluding or limiting a witness, the use of evidence, or an argument supporting or opposing a charge or defense;

(2) dismissing the case with or without prejudice;

(3) granting a continuance or declaring a mistrial if necessary in the interests of justice;

(4) holding in contempt a witness, a party, or a person acting under the direction or control of a party;

(5) imposing costs of continuing the proceeding; or

(6) any other appropriate sanction.

Ariz. R. Crim. P. 15.7(c).

¶47 Beyond the Rule 15.7(c) factors and any other relevant circumstances, when the superior court dismisses a case with prejudice, that court must find the interests of justice require it. Ariz. R. Crim. P. 16.4(d); see State v. McPherson, 1 CA-CR 24-0374, 2025 WL 1711704, at *5 ¶ 22 (Ariz. App. June 19, 2025), review granted, decision vacated in part, CR-25-0212-PR, 2026 WL 53111 (Ariz. Jan. 7, 2026). McPherson held the superior court erred when it did not make the required Rule 16.4 finding that the interest of justice supported a dismissal with prejudice. 1 CA-CR 24-0374, 2025 WL 1711704, at *5 ¶ 22 (citing Wills, 177 Ariz. at 594, 870 P.2d at 412).

A. Though the superior court did not make express findings on two of the four factors, the records shows substantial evidence for each.

¶48 The court affirms a superior court's order imposing sanctions on the State for late disclosure unless the superior court abused its discretion. State v. Lemming, 188 Ariz. 459, 460, 937 P.2d 381, 382 (App. 1997). The court also reviews the superior court's ruling on whether to dismiss a criminal indictment with prejudice or without prejudice for an abuse of discretion. State v. Wood, 198 Ariz. 275, 277 ¶ 6, 8 P.3d 1189, 1191 (App. 2000); State v. Garcia, 170 Ariz. 245, 247, 823 P.2d 693, 695 (App. 1991). The superior court abuses its discretion when “the record fails to provide substantial support for its decision or the court commits an error of law in reaching the decision.” State v. Cowles, 207 Ariz. 8, 9 ¶ 3, 82 P.3d 369, 370 (App. 2004) (citation omitted). The court will reverse for abuse of discretion only if “no reasonable judge would have reached the same result under the circumstances.” State v. Armstrong, 208 Ariz. 345, 354 ¶ 40, 93 P.3d 1061, 1070 (2004).

¶49 On appeal, if the court concludes the superior court's findings are insufficient but resolution of the issue requires consideration of disputed issues of fact and related conclusions of law, the court should remand to the superior court to make further findings. See Tankersley, 211 Ariz. at 325, 121 P.3d at 831 (remanding to the superior court to enter “specific findings of fact” and to “state expressly its conclusions of law relating to each issue considered”); compare Wills, 177 Ariz. at 595, 870 P.2d at 413 (vacating dismissal with prejudice and given lack of showing of harm to the defendant, remanding to dismiss without prejudice), with State v. Penney, 229 Ariz. 32, 36–37 ¶¶ 13, 19, 270 P.3d 859, 863–64 (App. 2012) (affirming superior court's finding that police interfered with the defendant's right to counsel but remanding for further proceedings to determine whether sufficient harm existed to dismiss with prejudice).

1. First Factor: The significance of the information not disclosed timely.

¶50 The defendants focused their arguments on the category one documents, arguing they went to the core of their defense and by getting the disclosure so late, they were left without the raw materials they needed. The State argued the evidence was not that significant and sought to discredit the exculpatory nature of the evidence. But at the same time, the State intended to use much of the evidence in its case in chief.

¶51 The superior court recognized the State made “extraordinary disclosures” years after indicting the defendants and after the case was set for trial. But the superior court did not claim it found the late disclosed documents themselves significant or explain why. The court is left with the two sides’ arguments about significance, but no express or implied findings from the superior court. As another point, the superior court appears to have found the State's late disclosure of the first category of documents was sufficient to warrant the ultimate sanction because it granted the ultimate relief to all four defendants without distinguishing between the two categories. Because the superior court did not address whether the second category warranted dismissal with prejudice, I cannot infer such findings. See Roberts, 225 Ariz. at 119 ¶ 24, 235 P.3d at 272 (recognizing when an appellate court reviews for an abuse of discretion, it defers to the superior court's “explicit or implicit factual findings and will affirm as long as such findings are supported by reasonable evidence”).

¶52 I would remand to allow the superior court to address this factor. The first category affected all four defendants. The second category just two. On remand, the superior court could find the first category alone was sufficiently significant. But if not, it could find the two defendants who received the second category are differently situated, and the superior court could decide to impose a different sanction on the State for the second category. I would not deny the superior court the opportunity to exercise its discretion.

2. Second Factor: The violation's impact on the overall administration of the case.

¶53 The superior court plainly made findings on this factor. Indeed, the superior court focused its ruling on the procedural history here and the State's history of late disclosure.

¶54 The superior court said the State's unexplained and untimely delay severely impacted the overall administration of the case and left the superior court with few options—most of them unworkable. As the superior court said:

In effect, those late disclosures have placed Ms. Dahlstrom (and the other co-defendants) in the untenable position of having to accept a delay in the resolution of the charges against them in order that they may assess the voluminous evidence now propounded by the State. But the continuance proposed by the State cannot easily be accomplished when balancing the schedules of four defense attorneys, each of whom has devoted substantial time and effort to the preparation of these cases for trial to the detriment of other cases and clients. It is hard to discern a scenario under which these cases could be re-set for trial before late summer or early fall.

¶55 The State does not explain how the superior court's reasoning was an abuse of discretion, as in “no reasonable judge would have reached the same result under the circumstances.” See Armstrong, 208 Ariz. at 354 ¶ 40, 93 P.3d at 1070.

3. Third Factor: The sanction's impact on the party and the victims.

¶56 The superior court weighed various sanctions and the impacts on the defendants.

¶57 First, it could affirm the trial date and move forward without delay, but the superior court reasoned it would leave the court with one of two options: (1) exclude the evidence or (2) allow the State to use it. But exclusion would be an inappropriate sanction because defendants argued some of the late disclosed evidence was exculpatory. Going forward without delay and allowing the evidence would leave the defendants ill-prepared to deal with the new evidence. The effect of allowing the evidence is even more severe because the State said it planned to use 15 of the 30 categories of the late disclosed documents. Defense counsel would have to try to prepare their defense while sifting through the documents the State should have disclosed far earlier.

¶58 Second, the superior court reasoned it could continue the firm trial date so the defendants could assess the late disclosure appropriately. But the defendants, their counsel, and their experts would need time to comb through the newly disclosed evidence, meaning they would have to spend more time and resources. And then the court would need to find a two-month block of time when all the attorneys and the court would be available after that. As to the continuance, the superior court said:

It is unconscionable (in the sense of being neither right nor reasonable) to expect Ms. Dahlstrom or the other co-defendants to continue to live under the shadow of the multiple and very serious charges against them solely based on the State's failures of disclosure so late in the trial process.

¶59 The majority challenges whether those grounds are substantial enough. But the remedy should be to remand to the superior court to address the issue expressly, not simply order dismissal without prejudice. In doing so, the majority discounts the other consequences of the State's disclosure abuses. It was not just late. The disclosure came nine to ten years after the events giving rise to the charges and five years after the State indicted the defendants. And it included evidence related to charges alleging the defendants took advantage of elderly and vulnerable adults.

¶60 Because the State had the documents for years before finally disclosing them to the defendants, the State had the privilege of using the evidence in its investigation—evidence the State intended to use to prosecute the defendants. But the State's disclosure abuses denied the defendants that same opportunity to review and investigate that evidence. The evidence included key financial account information showing the defendants had created websites and two victim interviews—one of which the defendants argue included exculpatory statements. And that delay is against the backdrop of the facts of the charges. Many victims were elderly when the alleged crimes occurred, and the record shows their conditions have declined since the State brought the charges. The majority would force the defense to investigate financial records, transactions, and witnesses from ten years earlier with victims whose conditions are not the same. The superior court should have the opportunity to decide whether the evidence establishes the State prejudiced defendants’ investigation and justice requires dismissal with prejudice. The court should not substitute its discretion for the superior court's, but instead should remand for the superior court to do in the first instance. See Tankersley, 211 Ariz. at 325, 121 P.3d at 831 (remanding to the superior court to enter “specific findings of fact” and to “state expressly its conclusions of law relating to each issue considered”).

¶61 As a final point, the superior court made no findings about the harm to the victims. I cannot fault the superior court because the State made ambiguous statements about the effect on the victims. In total, the State said:

[Counsel (referring to defense counsel's argument)] also represented that all of the victims have been made whole. I don't believe that's true. There is a $25 million judgment against several of the defendants. My understanding from the FTC is that the majority of that has not been recouped yet. They did seize millions of dollars from bank accounts, but obviously there's still a great deal outstanding. To his point, that does change the way restitution will be handled and all—all those kinds of things.

Indeed, at that point (days before the firm trial date and five years after indicting the defendants), it appeared the prosecutor was unclear on which victims would testify, let alone whether they had been made whole. Because of the dearth of information about the victims, I do not fault the superior court for the limited findings. I also do not fault the defendants. It was the State's obligation and any lack of evidence rests at the State's feet. On remand, the State could flesh out the impacts on the victims, just as the defendants could flesh out the impacts on their defense.

4. Fourth Factor: The stage of the proceedings when the party ultimately made the disclosure.

¶62 I need not belabor this point. The superior court found the State made the untimely disclosure on the eve of trial. Some of that disclosure had been in the hands of the prosecutor for years, and the balance for more than a year. And most of that disclosure had been in the case agent's hands for at least four or five years. Consider the fact that the case agent conducted the victim interviews before the State even indicted the defendants, but the State did not disclose them until the defendants asked, just days before trial.

¶63 The case history shows just how late the State submitted its disclosure. The trial had been continued more than a dozen times between the 2020 indictment and the 2025 motion to dismiss. As of December 2024, the case had a firm trial date in January 2025 when the superior court again had to continue it to March 3, 2025, because the State still had not completed disclosure. At that point, the superior court said, “no further continuances will be granted absent extraordinary circumstances.” Even so, the State waited two more months to disclose the documents. When the issue arose, the superior court continued the trial for yet another week to give the parties time to formulate their arguments on the motion to dismiss. Remarkably, the State believed that the one-week continuance was enough time for defense to deal with the problems the State created.

¶64 The superior court did not abuse its discretion when it found the State made the late disclosure years after bringing the case and just days before trial was set to begin. To paraphrase Armstrong, “no reasonable judge would have reached [a different] result under the circumstances.” 208 Ariz. at 354 ¶ 40, 93 P.3d at 1070.

B. Before the superior court dismisses a case with prejudice, Rule 16.4(d) requires it to find dismissal with prejudice is in the interests of justice.

¶65 No doubt dismissal with prejudice is within the superior court's discretion under Rule 15.7(c). But before it does so, the superior court must state dismissal with prejudice is in the interests of justice under Rule 16.4(d). See McPherson, 1 CA-CR 24-0374, 2025 WL 1711704, at *5 ¶ 22 (citing Wills, 177 Ariz. at 594, 870 P.2d at 412). As Wills explained, “the rule requires the [superior] court to state on the record its reason for concluding that dismissal with prejudice is in the interests of justice. This statement must be based on a particularized finding that to do otherwise would result in some articulable harm to the defendant.” 177 Ariz. at 594, 870 P.2d at 412.

¶66 I would remand for the superior court to address whether it can make the necessary particularized findings and, if it can, to state those reasons on the record. See Tankersley, 211 Ariz. at 325, 121 P.3d at 831 (remanding to the superior court to enter “specific findings of fact” and to “state expressly its conclusions of law relating to each issue considered”)

C. The court further should remand to the superior court because the State's disclosure abuses here implicate the defendants’ constitutional due process rights underlying the State's longstanding duty to disclose.

¶67 The State does not dispute it had a duty to disclose the documents to the defendants. The State also “concedes that it made late disclosures to all four defendants in this case without offering adequate explanation for the delay.” In assessing the significance of the late disclosure, the court must consider the basis for the State's disclosure duty to frame the analysis.

¶68 The State's disclosure duty has its roots in due process. In 1981, the Arizona Supreme Court discussed the genesis of Rule 15.1. See State v. Gretzler, 126 Ariz. 60, 75, 612 P.2d 1023, 1038 (1980), holding modified by State v. McDaniel, 136 Ariz. 188, 193–94, 665 P.2d 70, 75-76 (1983). In Gretzler, the Arizona Supreme Court said:

Section 15.1 of the rule specifically sets forth the obligations of the prosecutor to make disclosure to the defendant. As noted in the commentary to the rule, subsection 15.1(a)(7) clarifies “the prosecutor's constitutional obligations under Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).” Brady held that when the defense requests evidence favorable to the accused, the prosecutor must produce all information in his possession that is “material either to guilt or to punishment.” 373 U.S. at 87, 83 S.Ct. 1194. Arizona's Rule 15 reaches beyond Brady as to what must be disclosed and it also requires the State to make disclosure regardless of whether there is a defense request.

126 Ariz. at 75, 612 P.2d at 1038 (cleaned up).

¶69 Since then, Arizona has revised and expanded Rule 15.1, but the State's disclosure duty retains its constitutional roots. See R.S., 251 Ariz. at 116 ¶¶ 1, 10, 485 P.3d at 1073 (recognizing disclosure implicates a defendant's “due process right to present a complete defense”). As R.S. explained:

Due process requires that a defendant receive a fundamentally fair trial, including a meaningful opportunity to present a complete defense. The denial of due process is a denial of fundamental fairness, shocking to the universal sense of justice, and our ultimate goal is to further the truth-seeking function of judicial proceedings.

Id. at 117 ¶¶ 13–14, 485 P.3d at 1074 (cleaned up).

¶70 That said, the Arizona Supreme Court has made clear a defendant does not “have a general constitutional right to pretrial disclosure.” Id. ¶ 15. And R.S. did “not create a general constitutional right to discovery.” Id. ¶ 16. But “[t]he very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts.” Id. R.S. further explained the constitutional underpinnings: “[T]he due process right to present a complete defense is vitiated if a defendant is prevented access at the pretrial discovery stage to the ‘raw materials’ necessary to build his defense, rendering his trial fundamentally unfair.” Id.

¶71 Because this case implicates whether the State denied the defendants the raw materials they needed, I would remand to the superior court for further proceedings. See id.

CONCLUSION

¶72 As explained above, I concur in part because the record and the State's opening brief establish dismissal was appropriate. But I conclude the court must remand the matter to superior court to enter “specific findings of fact” and to “state expressly its conclusions of law relating to each issue considered” under Rules 15.7(c) and 16.4(d). See Tankersley, 211 Ariz. at 325, 121 P.3d at 831. Once the superior court makes those findings, it should decide whether dismissal with or without prejudice is appropriate. See Penney, 229 Ariz. at 36–37 ¶¶ 13, 19, 270 P.3d at 863-64. I would leave that decision to the superior court's sound discretion, including whether an evidentiary hearing is required. See Tankersley, 211 Ariz. at 325, 121 P.3d at 831.

FOOTNOTES

2.   Wills references a former version of Rule 16.4. Although the rule has been renumbered, the language remains the same. See, e.g., State v. Marquess, 168 Ariz. 123, 125, 811 P.2d 375, 377 (App. 1991) (quoting the identical language of the previous rule).

3.   While the delay was regrettably long, the superior court explicitly noted that the defendants had not raised a speedy trial claim and that it was not relying on a speedy trial violation in dismissing the case with prejudice. Dismissal with prejudice for speedy trial violations is appropriate only when the State has delayed to obtain a tactical advantage or to harass a defendant. State v. Huffman, 222 Ariz. 416, 420 ¶ 11, 215 P.3d 390, 394 (App. 2009). The defendants never alleged such misconduct.

HOWE, Judge: