State v. Anderson, 2 CA-CR 2015-0144-PR

• Decision Date: 26 August 2015
• Docket Number: No. 2 CA-CR 2015-0144-PR,2 CA-CR 2015-0144-PR
• Parties: THE STATE OF ARIZONA, Respondent, v. MATTHEW JONATHAN ANDERSON, Petitioner.
• Court: Court of Appeals of Arizona

THE STATE OF ARIZONA, Respondent, v. MATTHEW JONATHAN ANDERSON, Petitioner.

No. 2 CA-CR 2015-0144-PR

ARIZONA COURT OF APPEALS DIVISION TWO

August 26, 2015

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.

Petition for Review from the Superior Court in Pima County

No. CR20124116001

The Honorable Christopher C. Browning, Judge

REVIEW GRANTED; RELIEF GRANTED IN PART AND DENIED IN PART

COUNSEL

Barbara LaWall, Pima County Attorney

By Jacob R. Lines, Deputy County Attorney, Tucson

Counsel for Respondent

Steven R. Sonenberg, Pima County Public Defender

By Abigail Jensen, Assistant Public Defender, Tucson

Counsel for Petitioner

MEMORANDUM DECISION

Judge Espinosa authored the decision of the Court, in which Chief Judge Eckerstrom and Presiding Judge Miller concurred.

ESPINOSA, Judge:

¶1 Matthew Anderson seeks review of the trial court's summary dismissal of his of-right petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P., in which he challenged the trial court's award of restitution and its imposition of a Criminal Restitution Order (CRO) for fines, fees, and assessments imposed. For the following reasons, we grant review, vacate a portion of the court's CRO, but otherwise deny relief.

¶2 Anderson was originally charged with the theft of jewelry belonging to J.J. and having "a value of $4,000 or more but less than $25,000." He also was charged with trafficking in that stolen property "belonging to" J.J. No other person or entity was named in the indictment. Pursuant to his plea agreement, Anderson pleaded guilty to the theft, the trafficking charge was dismissed, and he "agree[d] to pay restitution," in an amount "not to exceed $1,520.00," to "all of the victims named in the original indictment, even if they are not named within the specific charge to which the defendant is pleading guilty." The trial court accepted his change of plea, and sentencing was scheduled for May 2, 2013.

¶3 According to the presentence report, Anderson agreed with the following summary:

On May 7, 2012, a detective with the Tucson Police Department received a phone call from the victim who reported jewelry, including an old engagement ring worth approximately $7,000, had been stolen. She had houseguests two weeksprior to making the report and contacted one of those individuals who told her the defendant, who had also been a guest at her residence, took the jewelry and pawned it.

An investigation revealed the defendant pawned the victim's engagement ring on April 7, 2012, and received $1,400 for the transaction. He pawned other jewelry on that same date and received $120 for those items. Holds were placed on the jewelry.

Anderson did not object to these statements before sentencing and has not challenged their accuracy in these post-conviction proceedings.

¶4 On May 2, 2013, the trial court entered a judgment of conviction for theft and sentenced Anderson to a "partially aggravated," six-year prison term. The court ordered the determination of restitution "held in abeyance pending further information from the State," and it directed the prosecutor to submit restitution information within sixty days.

¶5 Several weeks later, the state filed a motion to release the recovered, stolen jewelry to J.J. and to recognize two pawnshops as "victim[s] for purposes of restitution" in the amount of $1,520. After a hearing on the motion, the trial court ordered further briefing, and, in an under-advisement ruling on August 7, 2013, it granted the state's motion, concluding Anderson's "criminal conduct directly caused the economic loss" incurred by the pawnshops. On September 24, 2013, the court ordered Anderson to pay $1,520 in restitution to the two pawnshops.

¶6 Anderson filed his notice of post-conviction relief on September 3, 2013, and in the petition that followed he alleged (1) the restitution order is void for lack of subject matter jurisdiction because it was issued more than sixty days after the originalsentencing hearing; (2) the court erred in finding the pawnshops victims of Anderson's crime entitled to restitution under A.R.S. § 13-603(C); and (3) the court erred in ordering, in its minute entry for May 2, 2013, "all fines, fees, assessments and/or restitution . . . reduced to a [CRO]."

¶7 In its order summarily denying relief, the trial court found Anderson's claim regarding jurisdiction precluded pursuant to Rule 32.2(a)(3), by his failure to raise it before the court ordered restitution, and his challenge to the restitution award precluded pursuant to Rule 32.2(a)(2), because the argument had already been considered and "'finally adjudicated on the merits,'" id., before the court entered its award. The court also found it had properly awarded restitution to the pawnshops, noting A.R.S. § 13-814, which expressly authorizes such an award, became effective shortly after its August decision to recognize the pawnshops' restitution claims.¹ This petition for review followed.

Discussion

¶8 We review a summary denial of post-conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). As addressed below, we conclude the court did not abuse its discretion in summarily denying Anderson's claims regarding restitution. We further conclude Anderson is entitled to partial relief from the CRO imposed, a claim not addressed in the court's order denying relief.

Jurisdiction to Enter Post-Judgment Restitution Award

¶9 Anderson first suggests the trial court abused its discretion in concluding his challenge to the court's jurisdiction was precluded by waiver pursuant to Rule 32.2(a). He then reasserts his claim that the court lacked jurisdiction to enter the restitution order more than sixty days after judgment was entered on May 2, 2013.

Waiver

¶10 Rule 32.1(b) allows a defendant to seek post-conviction relief on the ground that "[t]he court was without jurisdiction to render judgment or to impose sentence." But Rule 32.2(a)(3) expressly provides such a claim is precluded if "waived at trial, on appeal, or in any previous collateral proceeding." See also Ariz. R. Crim. P. 32.2(b) (only "claims for relief based on Rules 32.1(d), (e), (f), (g) and (h)" excepted from preclusive effect of Rule 32.2(a)). In finding Anderson's jurisdiction claim precluded by waiver, the trial court noted he had not objected to the court's jurisdiction at a hearing on the state's motion to "recognize" the pawnbrokers as victims or when he sought additional time to comply with the court's order for briefing on the issue.

¶11 Anderson acknowledges that he "fail[ed] to challenge the trial court's jurisdiction during the restitution proceedings." Relying on cases decided on direct appeal, he nonetheless asserts that "challenges to subject matter jurisdiction are never waived." Although we recognize that a first "Rule 32 proceeding is the appeal for a defendant pleading guilty," Montgomery v. Sheldon, 182 Ariz. 118, 119, 893 P.2d 1281, 1282 (1995), the placement of jurisdictional claims in Rule 32.1(b), among the other claims subject to preclusion, suggests that a Rule 32 claim challenging the court's subject matter jurisdiction may be waived by a failure to raise it in the trial court. Cf. State v. Espinosa, 200 Ariz. 503, 505, 29 P.3d 278, 280 (App. 2001) (Rule 32.1(a) claim of unconstitutional withdrawal of plea offer waived by failure to assert it before trial).

¶12 Moreover, even if a challenge to the court's jurisdiction is subject to waiver under Rule 32.2(a)(3), as the trial court found here, a pleading defendant with a meritorious but unpreserved jurisdictional claim is not without recourse. Ordinarily, we would expect a pleading defendant to argue that trial counsel's failure to assert a meritorious claim of lack of jurisdiction constituted ineffective assistance under Rule 32.1(a). Here, however, because the same counsel was appointed to represent Anderson in his plea proceedings and on his petition for post-conviction relief, such a claim would have been improper. See Bennett, 213 Ariz. 562, ¶¶ 14-15, 146 P.3d at 67 (noting it "improper for appellate counsel to argue his own ineffectiveness at trial"). As a result, Anderson would not be precluded from raising such a claim of ineffective assistance of trial counsel in a subsequent proceeding. See id. ¶ 16.

¶13 But the policy of judicial economy may best be served by addressing Anderson's substantive challenge to jurisdiction in this proceeding. See State v. Shrum, 220 Ariz. 115, ¶¶ 11-12, 203 P.3d 1175, 1178 (2009) (noting Rule 32's policy of consolidating all claims in one petition serves interest of finality and justice and prevents "'nearly endless reviews of the same case in the same trial court'"), quoting Stewart v. Smith, 202 Ariz. 446, ¶ 11, 46 P.3d 1067, 1071 (2002). Because we conclude Anderson failed to state a colorable claim on this issue, we need not resolve whether a pleading defendant's challenge to subject matter jurisdiction, raised in an of-right proceeding, is subject to waiver at trial pursuant to Rule 32.2(a)(3). See State v. Lopez, 234 Ariz. 513, ¶ 10, 323 P.3d 1164, 1166 (App. 2014) (affirming denial of petition for post-conviction relief on ground other than that identified by trial court).

Jurisdiction

¶14 In arguing the trial court lacked jurisdiction to award restitution more than sixty days after the oral pronouncement of judgment, Anderson relies on this court's statement, in State v. Serrano, that a "judgment and sentence are 'complete and valid' upon oral pronouncement, Ariz. R. Crim. P. 26.16(a), and cannot be modified thereafter except as provided by Rule 24.3, Ariz. R. Crim. P.," 234 Ariz. 491, ¶ 9, 323 P.3d 774, 777 (App. 2014). Rule 24.3 provides, in relevant part, that a "court may correct any unlawful sentence or one imposed in an unlawful manner within 60 days of the entry of judgment and sentence but before ...