State v. Bolding

• Decision Date: 12 April 2011
• Docket Number: No. 2 CA–CR 2010–0088.,2 CA–CR 2010–0088.
• Citation: 606 Ariz. Adv. Rep. 31,253 P.3d 279,227 Ariz. 82
• Parties: The STATE of Arizona, Appellee,v.Edward Porter BOLDING, Appellant.
• Court: Arizona Court of Appeals

227 Ariz. 82

253 P.3d 279

606 Ariz. Adv. Rep. 31

The STATE of Arizona, Appellee,

v.Edward Porter BOLDING, Appellant.

No. 2 CA–CR 2010–0088.

Court of Appeals of Arizona, Division 2, Department A.

April 12, 2011.

Thomas C. Horne, Arizona Attorney General By Diane Leigh Hunt, Tucson, Attorneys for Appellee.Robert J. Hirsh, Pima County Public Defender By David J. Euchner, Tucson, Attorneys for Appellant.

OPINION

ESPINOSA, Judge.

¶ 1 The State of Arizona has filed a motion pursuant to A.R.S. § 13–4033(C) to dismiss defendant Edward Bolding's appeal of criminal convictions from a December 2008 jury trial. We are asked to decide whether § 13–4033(C), which bars a defendant from appealing a final judgment of conviction if the defendant by his absence has delayed sentencing for longer than ninety days, applies to a person who committed offenses before the effective date of this subsection of the statute but was tried and found guilty after that date. Although we conclude the statute applies to Bolding, for the reasons stated below, we deny the state's motion.

Background

¶ 2 A jury found Bolding guilty after his December 2008 jury trial of two counts of fraudulent schemes and artifices and one count of obstructing a criminal investigation or prosecution, based on offenses committed between December 1991 and, at the latest, November 2004. Bolding did not appear for the announcement of the verdicts and the trial court issued a warrant for his arrest. He was arrested on June 20, 2009, and appeared in court on June 23. He was sentenced on October 13, 2009, to concurrent, enhanced, presumptive prison terms, but successfully moved to vacate the convictions pursuant to Rule 24.2, Ariz. R.Crim. P., because he had been facing a sentence that potentially could exceed thirty years' imprisonment and had been tried by an eight-person rather than twelve-person jury. The state appealed the court's order granting the motion but the parties subsequently stipulated that jurisdiction of the case be revested in the trial court so it could consider the implications of the supreme court's decision in State v. Soliz, 223 Ariz. 116, 219 P.3d 1045 (2009). Thereafter, the state withdrew its sentence-enhancement allegations and the trial court vacated, in part, its earlier order granting the motion to vacate the convictions and set the matter for a new sentencing hearing. On March 1, 2010, Bolding was sentenced to concurrent, presumptive prison terms on counts one and three and a modified sentence on count two, with a probationary period to commence after he completes the prison terms. Bolding appealed.

Discussion

¶ 3 In the state's motion to dismiss Bolding's appeal, it contends that under § 13–4033(C) this court lacks jurisdiction of arguments I through III in his opening brief, which relate to the propriety of the verdicts, on the ground that he delayed the sentencing for longer than ninety days by absconding.¹ Section 13–4033(C) provides, in relevant part, “[a] defendant may not appeal” a “final judgment of conviction ... if the defendant's absence prevents sentencing from occurring within ninety days after conviction and the defendant fails to prove by clear and convincing evidence at the time of sentencing that the absence was involuntary.” The new provision became effective on September 26, 2008, about two months before Bolding's trial. See 2008 Ariz. Sess. Laws, ch. 25, § 1; see also Ariz. Const. art. IV, pt. 1, § 1(3) (laws effective ninety days after close of legislative session).

¶ 4 Bolding contends in his response to the state's motion that the amended statute does not apply to him. He relies on this court's vacated decision in State v. Soto, 223 Ariz. 407, 224 P.3d 223 (App.2010) ( Soto I ), arguing that, although the supreme court vacated it, see State v. Soto, 225 Ariz. 532, 241 P.3d 896 (2010) ( Soto II ), the court did so because of concessions the state had made while the case was on review, insisting the supreme court “in no way invalidated” our decision in Soto. Thus, he contends the statute, as applied to him, “unconstitutionally abrogates his right to appeal, guaranteed by the Arizona Constitution,” violates the prohibition against the enactment of ex post facto laws, the separation of powers doctrine, and due process by requiring him to prove by clear and convincing evidence his absence had been involuntary. He also contends he did not waive his right to appeal “through a valid Boykin² procedure and received no warning, pursuant to Rule 9.1, Ariz. R.Crim. P., that failure to appear at any stage in the proceedings could result in a waiver of his right to appeal.”

¶ 5 The issues the state and Bolding have raised require us to interpret and determine the applicability and constitutionality of a statute—a question of law we review de novo. See State v. Roque, 213 Ariz. 193, ¶ 89, 141 P.3d 368, 392 (2006) (claims concerning constitutionality of statutes reviewed de novo); Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996) (interpretation of statute question of law subject to de novo review). “[O]ur duty in interpreting statutes is ‘to give effect to the legislature's intent’ and when the ‘statute's language is plain and unambiguous, we look no further.’ ” State v. Miller, 226 Ariz. 190, ¶ 12, 245 P.3d 454, 456 (App.2011), quoting State v. Hinden, 224 Ariz. 508, ¶ 9, 233 P.3d 621, 623 (App.2010).

¶ 6 As Bolding points out, in Soto I we concluded § 13–4033(C) did not apply to the defendant in that case so as to deprive him of the right to appeal, even though he had absconded after his trial. 223 Ariz. 407, ¶¶ 3, 5, 14, 224 P.3d at 224, 225, 227–28. We reasoned that although the clear language of the statute deprives an absconding defendant like Soto of the right to appeal if he delays sentencing for longer than ninety days, it cannot be applied in a constitutional manner unless the defendant's “voluntary failure to appear timely for a sentencing hearing demonstrates a knowing, voluntary, and intelligent waiver of his constitutional right to appeal.” Id. ¶ 14. We rejected the state's argument that trial courts may infer a defendant has waived his right to appeal from his mere absence and concluded the statute could not deprive Soto of his right to appeal because he did not have notice that his absence would result in the forfeiture of that right. Id. ¶¶ 15–20. We stated, “Soto's failure to appear for sentencing did not itself demonstrate a knowing, voluntary, and intelligent waiver” of his right to appeal, and denied the state's motion to dismiss. Id. ¶ 20.

¶ 7 Granting the state's petition for review of our decision, the supreme court directed the parties to address the question whether the amendment to the statute “applies retroactively to defendants convicted before its effective date.” 225 Ariz. 532, ¶ 3, 241 P.3d at 896. The state then conceded for the first time that the statute did not apply to Soto. Id. ¶ 4. The supreme court commented, the state “correctly reason[ed] that the statute does not apply to persons who were returned to custody within ninety days of September 26, 2008,” the effective date of the statute. Id. Presumably, the court agreed with the state because the earliest the statute could take effect was ninety days after its technical effective date; that is, there had to have been at the very least a ninety-day delay in sentencing for a conviction obtained on the effective date of the statute before it applied. The court added, “Based on the State's concession that A.R.S. § 13–4033(C) does not apply to Soto, we decline to rule on any constitutional or retroactivity issues this case might have presented.” Id. ¶ 5. The court affirmed the denial of the state's motion to dismiss Soto's appeals in two causes, vacated our decision in Soto I, and remanded the case to this court to address the substance of Soto's appeals. Id. ¶ 8 Thus, the supreme court's decision in Soto II left unanswered all questions relating to the constitutionality of the statute. The court did not decide whether the amended statute is applicable to a defendant like Bolding, who committed offenses before the statute's effective date, but was tried and found guilty, and absconded after the statute went into effect. We therefore must decide whether the statute applies to Bolding and if so, whether its application to him can be constitutional, given that he never was informed he would be deemed to have forfeited his right to a direct appeal if he “prevent[ed] sentencing from occurring within ninety days after conviction.” § 13–4033(C).

¶ 9 We first address whether the statute applies to Bolding and, if so, whether it amounts to a retroactive application of substantive law. Any retroactive application of the statute would be problematic because the legislature did not provide that the amendment to § 13–4033 adding subsection (C) was to be applied retroactively and “[n]o law is ‘retroactive unless expressly declared therein.’ ” Garcia v. Browning, 214 Ariz. 250, ¶ 7, 151 P.3d 533, 535 (2007), quoting A.R.S. § 1–244. To determine whether the statute is being applied retroactively, we examine first whether the new subsection was intended to regulate “primary conduct,” that is, the criminal conduct that gave rise to the charges, or whether other conduct serves as the operative event for determining the subsection's applicability. See id. ¶¶ 12–14; see generally State v. Aguilar, 218 Ariz. 25, ¶¶ 27–33, 178 P.3d 497, 504–06 (App.2008) (distinguishing primary from secondary conduct for purposes of retroactivity analysis); see also San Carlos Apache Tribe v. Superior Court, 193 Ariz. 195, ¶ 15, 972 P.2d 179, 189 (1999) (“[L]egislation may not disturb vested substantive rights by retroactively changing the law that applies to completed events.”).

¶ 10 As the court observed in Garcia, “the date of the offense is the operative event for retroactivity analysis when a new statute regulates primary conduct.” 214 Ariz....