State v. Dawson

CourtSupreme Court of Arizona
Citation164 Ariz. 278,792 P.2d 741
Docket NumberNo. CR-89-0184-PR,CR-89-0184-PR
PartiesSTATE of Arizona, Appellee, v. Lawrence DAWSON, Appellant.
Decision Date10 May 1990

CORCORAN, Justice.

The state petitions for review of the court of appeals decision affirming defendant's convictions and refusing to correct sentencing errors pointed out by the state in its answering brief to defendant's appeal. The issue we must address is whether, in the absence of an appeal or cross-appeal by the state, an appellate court has subject matter jurisdiction to correct an illegally lenient sentence when a criminal defendant appeals. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 12-120.24. We granted review pursuant to rule 31.19, Arizona Rules of Criminal Procedure.

Procedural Background

Defendant was convicted by a jury of 8 counts of child abuse, all dangerous crimes against children in violation of A.R.S. § 13-604.01. The trial court imposed 8 presumptive sentences totalling 60 years without possibility of parole for 25 years. Six counts involved the same child; those sentences were imposed concurrently but consecutively to the other two counts, which involved two additional children. The state did not object to this sentencing in the trial court, and did not file an appeal contending that an illegal sentence had been imposed.

Defendant appealed from his convictions on grounds not at issue in this review and not relevant to his sentences. The state did not cross-appeal, but pointed out in its answering brief, among other things, that the trial court had erred in calculating the sentences, and had failed to follow the mandatory provisions of A.R.S. § 13-604.01, which require consecutive sentences of life imprisonment without possibility of parole for 35 years on 4 of the 8 counts because defendant's other counts constituted "predicate felonies" pursuant to A.R.S. § 13-604.01(K)(2).

The court of appeals affirmed defendant's convictions and sentences, in a memorandum decision, rejecting the grounds raised by defendant in his appeal. The court of appeals also addressed one sentencing discrepancy alleged by the state that would have benefited defendant and found no error. However, it refused to address the above error claimed by the state in its answering brief, reasoning as follows:

The correct sentence [on count 6], it is alleged, should have been life without parole for 35 years, consecutive to any other sentence imposed. A like argument is made for counts 7, 8, and 1. The prosecution failed to file a cross-appeal, and therefore has waived the alleged sentencing error. State v. Tyree, 109 Ariz. 259, 508 P.2d 335 (1973), rev'd on other grounds, State v. Lewis, 109 Ariz. 466, 512 P.2d 9 (1973); State v. Ambalong, 150 Ariz. 380, 723 P.2d 729 (App.1986).

State v. Dawson, 2 CA-CR 87-0572 (Ariz.App. Apr. 6, 1989), mem. dec. at 9-10.


In its petition for review, the state asks us to hold that appellate courts have a duty to correct an illegally lenient sentence that appears on the appellate record, even though the correction results in detriment to defendant as a result of his own appeal, and even in the absence of an appeal or cross-appeal by the state. The state contends that an appellate court's reliance on the Tyree/ Ambalong reasoning that the state has "waived" the error by failing to timely cross-appeal results in a violation of the separation of powers doctrine set forth in article 3 of the Arizona Constitution. We do not decide, in the context of this review, whether the trial court erred in imposing defendant's sentence, or whether the state's calculations are correct. We therefore limit our review to whether the court of appeals has the power to decide the issue. For that purpose, we accept as true the state's allegation that the sentences imposed were illegally lenient under the requirements of A.R.S. § 13-604.01, without so deciding.

We believe the threshold issue is whether appellate courts have subject matter jurisdiction to decide issues not properly before them in a direct appeal or cross-appeal. Unless an appellate court has the constitutional or statutory power to act to correct such an error, its refusal to act cannot violate the constitutional doctrine of separation of powers.

1. The State's Right to Directly Appeal or Cross-Appeal

We have long recognized that the right of appeal is a matter of grace given by organic or statutory law, because at common law no right of appeal existed; thus, when an appeal is sought, it must be done within the time and manner provided by law. State ex rel. Murphy v. Superior Court, 25 Ariz. 226, 215 P. 538 (1923). The United States Supreme Court established early that the government could not take an appeal in a criminal case without express statutory authority "sufficiently explicit to overcome the common-law rule that the State could not sue out a writ of error in a criminal case unless the legislature had expressly granted it that right." United States v. Wilson, 420 U.S. 332, 336, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975), citing United States v. Sanges, 144 U.S. 310, 318, 12 S.Ct. 609, 612-13, 36 L.Ed. 445 (1892). This court has acknowledged that appeals by the state in criminal matters are not favored and will be entertained only when that right is clearly provided by constitution or statute. State ex rel. McDougall v. Gerber, 159 Ariz. 241, 242, 766 P.2d 593, 594 (1988). This is because statutes allowing the state to appeal, "being in derogation of common law, should be strictly construed." 24 C.J.S. Criminal Law § 1675 at 334 (1989). Thus, we presume, in the absence of express legislative authority, that the state lacks the ability to appeal in criminal matters. Arizona v. Manypenny, 451 U.S. 232, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981).

In the absence of a constitutional provision or statute conferring the state's right to appeal, an appellate court has no subject matter jurisdiction to consider that appeal. State v. Lelevier, 116 Ariz. 37, 38, 567 P.2d 783, 784 (1977). One of the jurisdictional prerequisites to an appeal by the state is a timely filing of a notice of appeal or cross-appeal. State v. Berry, 133 Ariz. 264, 266, 650 P.2d 1246, 1248 (App.1982). Another jurisdictional prerequisite is that the grounds alleged by the state must be those specified in a jurisdictional statute. See, e.g., State v. Waicelunas, 138 Ariz. 16, 672 P.2d 968 (App.1983) (court had no jurisdiction to entertain discovery error alleged in state's appeal).

The Arizona Constitution provides the legislature with the power to establish intermediate appellate courts and determine the scope of their powers. See Ariz. Const. art. 6, § 1. The Arizona legislature has statutorily provided for prosecutorial appeals in the following limited situations:

An appeal may be taken by the state from:

1. An order dismissing an indictment, information or complaint or count of an indictment, information or complaint.

2. An order granting a new trial.

3. An order arresting judgment.

4. A ruling on a question of law adverse to the state when the defendant was convicted and appeals from the judgment.

5. An order made after judgment affecting the substantial rights of the state.

6. A sentence on the grounds that it is illegal, or if the sentence imposed is other than the presumptive sentence authorized by § 13-604 or 13-701.

7. An order granting a motion to suppress the use of evidence.

8. A judgment of acquittal of one or more offenses charged in an indictment, information or complaint or count of an indictment, information or complaint entered after a verdict of guilty on the offense or offenses.

A.R.S. § 13-4032 (emphasis added). In this case, the state had the right, pursuant to § 13-4032(6), either to appeal or cross-appeal from the trial court's refusal to treat defendant's prior counts as "predicate felonies" for enhancement purposes. See, e.g., State v. Sands, 145 Ariz. 269, 700 P.2d 1369 (App.1985). The trial court's failure to impose a sentence in conformity with the mandatory provisions of the sentencing statute makes that sentence "illegal" within the meaning of § 13-4032(6), and therefore properly appealable. State v. Gonzales, 141 Ariz. 512, 687 P.2d 1267 (1984). Furthermore, the trial court's failure to impose a legal sentence is one of those rare situations from which the state can seek review even if it failed to object in the trial court. 1 State v. Vargas-Burgos, 162 Ariz. 325, 783 P.2d 264 (App.1989). Our court of appeals has recently reasoned:

Although it is preferable for any question regarding the appropriateness of a sentence to be brought to the trial court's attention as soon as possible and certainly before the defendant files a notice of appeal, thereby depriving the trial court of jurisdiction to correct the sentence, we do not believe failure to do so waives the issue.... The state may appeal from an illegal sentence under A.R.S. § 13-4032(6) and raised its objection to the sentence imposed in the instant case in a cross-appeal, as it has repeatedly been urged to do.... We believe that the objections to the sentence were properly raised on appeal and were not waived by the state's failure to object below.

Vargas-Burgos, 162 Ariz. at 327, 783 P.2d at 266.

Thus, had the state appealed from the sentencing judgment within 20 days or had it cross-appealed within 20 days after service of defendant's notice of appeal, as provided in rule 31.3, Arizona Rules of Criminal Procedure, the court of appeals would have had the jurisdictional power, pursuant to § 13-4032(6), to consider the error. It also would have had the statutory power to act to correct the error and modify the sentence to conform...

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