State v. Maldonado

• Decision Date: 07 January 2010
• Docket Number: No. CR-09-0179-PR.,CR-09-0179-PR.
• Citation: 223 P.3d 653
• Parties: STATE of Arizona, Appellee, v. Frank R. MALDONADO, Appellant.
• Court: Arizona Supreme Court

223 P.3d 653

STATE of Arizona, Appellee, v. Frank R. MALDONADO, Appellant.

No. CR-09-0179-PR.

Supreme Court of Arizona, En Banc.

January 7, 2010.

Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Michael T. O'Toole, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

James J. Haas, Maricopa County Public Defender by Karen M. Noble, Deputy Public Defender, Phoenix, Attorneys for Frank R. Maldonado.

OPINION

BALES, Justice.

¶ 1 We hold that the State's failure to file an information before trial did not deprive the superior court of subject matter jurisdiction or constitute fundamental error.

I.

¶ 2 Frank R. Maldonado was charged by direct complaint with possession of cocaine. After a preliminary hearing, the superior court found probable cause to hold him for trial. That day, Maldonado was arraigned and the court entered his not guilty plea. A minute entry for this hearing indicates that an information was filed, but the hearing transcript does not refer to an information. The State later filed three pleadings that each purported to amend the information to allege prior convictions for sentencing purposes.

¶ 3 The case proceeded to trial. The trial transcript and a corresponding minute entry reflect that the court clerk read the charge to the jury from the information. The jury returned a guilty verdict and the superior court sentenced Maldonado to a term of imprisonment. In preparing an appeal, Maldonado's counsel reviewed the record and could not find a copy of the information in any court file. On motion of Maldonado's counsel, the court of appeals granted leave to supplement the record to include the information. The State then filed an information with the superior court and a copy with the court of appeals. This information tracked the charge in the complaint and the information read to the jury, but was dated the same date it was filed, some thirteen months after Maldonado's trial.

¶ 4 On appeal, Maldonado argued that the superior court lacked subject matter jurisdiction because the information was not filed until after he was tried, convicted, and sentenced. He relied on this Courts statement in State v. Smith that "in a criminal case the court acquires no jurisdiction of the subject matter of an alleged offense unless the jurisdictional facts constituting the offense are set forth in the information." 66 Ariz. 376, 379, 189 P.2d 205, 207 (1948).

¶ 5 The court of appeals distinguished Smith and affirmed Maldonados conviction and sentence. State v. Maldonado, 223 Ariz. 121, 123 ¶¶ 12-13, 17, 219 P.3d 1050, 1052 (App.2009). Citing State v. Buckley, 153 Ariz. 91, 734 P.2d 1047 (App.1987), the court said that other documents may constitute the equivalent of an information and thus confer subject matter jurisdiction on the superior court. The facts here, the court observed, "affirmatively demonstrate that [Maldonado] was provided adequate notice of the charge against him, and that the charge was sufficiently stated in the complaint, preliminary hearing and at trial to confer jurisdiction." Id. at ¶ 15, 219 P.3d at 1053. To the extent "a procedural defect actually existed," the court concluded that it was "not jurisdictional and did not prejudice [Maldonados] rights." Id. at ¶ 16, 219 P.3d at 1053.

¶ 6 We granted Maldonado's petition for review to consider whether the State's failure to file an information until after trial affected the subject matter jurisdiction of the superior court. Our jurisdiction is based on Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 12-120.24 (2003).

II.

A.

¶ 7 Article 2, Section 30 of the Arizona Constitution provides that "[n]o person shall be prosecuted criminally in any court of record for felony or misdemeanor, otherwise than by information or indictment." A felony prosecution may commence by an indictment, which reflects a grand jury's finding of probable cause to support the charged offense, or by the filing of a complaint. A defendant charged by complaint is entitled to a preliminary examination at which a court determines whether probable cause exists. Id. If the court finds probable cause (or if the defendant waives the preliminary examination), the state is required to file an information within the next ten days. Ariz. R.Crim. P. 13.1(c).

¶ 8 An information is "a written statement charging the commission of a public offense, signed and presented to the court by the prosecutor." Id. 13.1(b). The information, like an indictment, must contain a "plain, concise statement of the facts sufficiently definite to inform the defendant of the offense charged," and must also "state for each count the official or customary citation of the ... provision of law which the defendant is alleged to have violated." Id. 13.2(a)-(b).

¶ 9 If the state does not timely file an information, the defendant may move for the dismissal of the prosecution without prejudice. See id. 13.1(c). Such motions must be made no later than twenty days before trial, id. 16.1(b), and an untimely motion is generally precluded unless its basis could not be identified earlier through reasonable diligence. Id. 16.1(c).

¶ 10 We assume for purposes of this case that the State did not file an information within ten days after the superior court found probable cause to hold Maldonado for trial. We also assume that counsel for both the State and Maldonado were unaware that the information had not been filed, inasmuch as the superior court's minute entry indicated that an information had been filed and the jury was later read the charge from an information. The information, we presume, was actually filed only after defense counsel noted its omission from the record on appeal.

¶ 11 Maldonado contends that the State's failure to file the information before trial requires reversal of his conviction and sentence. Relying on Smith, Maldonado argues that Article 2, Section 30 of Arizona's Constitution limits the subject matter jurisdiction of the superior court by barring felony prosecutions unless an indictment or information has been filed.

¶ 12 In Smith, a defendant pleaded guilty upon his arraignment to an information charging him with leaving the scene of a motor vehicle accident. 66 Ariz. at 377, 189 P.2d at 206. This Court reversed the conviction and sentence because the information failed to allege that the accident occurred on a public highway, an element of the offense. Id. at 381, 189 P.2d at 209. Smith quoted Article 2, Section 30 and observed that "unless the jurisdictional facts constituting the offense are set forth in the information," the superior court does not acquire subject matter jurisdiction. Id. at 378-79, 189 P.2d at 207.

B.

¶ 13 Although the language in Smith supports Maldonado's challenge to his conviction, we reject its suggestion that a defective information (or the failure to file an information) in itself deprives a court of subject matter jurisdiction over further proceedings in a criminal case.

¶ 14 In current usage, the phrase "subject matter jurisdiction" refers to a court's statutory or constitutional power to hear and determine a particular type of case. See United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); First Nat'l Bank & Trust Co. v. Pomona Mach. Co., 107 Ariz. 286, 288, 486 P.2d 184, 186 (1971) (in division); Restatement (Second) of Judgments § 11 (1982) (defining subject matter jurisdiction as a court's "authority to adjudicate the type of controversy involved in the action"). Jurisdiction in this sense cannot be conferred by the consent of the parties and a court that lacks subject matter jurisdiction cannot adjudicate the action.

¶ 15 Smith, however, employed a more expansive concept of "subject matter jurisdiction." The superior court in Smith clearly had the power to adjudicate the felony described in the complaint. Indeed, Smith implicitly acknowledged as much, noting that, after the reversal of the conviction, the state could proceed anew against the defendant by filing a legally sufficient information. 66 Ariz. at 379, 189 P.2d at 207. Smith's remarks about jurisdiction must have referred instead to the superior court's inability to enter a valid judgment of conviction based upon a defective information. But concluding that a court cannot enter a valid judgment because of a procedural error does not mean that the court lacks subject matter jurisdiction. Cf. Taliaferro v. Taliaferro, 186 Ariz. 221, 223, 921 P.2d 21, 23 (1996) (holding that erroneous failure to honor a notice of change of judge does not divest court's subject matter jurisdiction).

¶ 16 It appears that Smith used the term "subject matter jurisdiction" somewhat loosely to allow this Court to exercise appellate jurisdiction to correct a constitutional error. Cf. Cotton, 535 U.S. at 629-30, 122 S.Ct. 1781 (discussing parallel practice by Supreme Court in federal cases when statutes limited grounds for appellate review). In Smith, the defendant was not represented, had pleaded guilty upon arraignment, and apparently had not been advised by the trial court about the consequences of his plea. 66 Ariz. at 380, 189 P.2d at 208. Characterizing the error in the information as involving "subject matter jurisdiction" was, under then-existing case law, critical to this Court's review of Smith's conviction and prison sentence because the Court had previously stated that the "only question[s]" it could consider on a defendant's appeal from a guilty plea were "jurisdictional ones." Burris v. Davis, 46 Ariz. 127, 131, 46 P.2d 1084, 1086 (1935).

¶ 17 Following Smith, in Paxton v. Walters, the Court concluded that a defendant convicted of perjury was entitled to habeas relief because the information did not set forth the defendant's allegedly false words. 72 Ariz. 120, 124, 231 P.2d 458, 460 (1951). Like Smith, Paxton did not have counsel, pleaded...