State v. Smith
| Decision Date | 21 May 1992 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 171 Ariz. 501,831 P.2d 877 |
| Parties | STATE of Arizona, Appellee, v. Lisa Gratia SMITH, Appellant. 90-260. |
| Court | Arizona Court of Appeals |
This appeal requires us to address whether we have subject matter jurisdiction to review a conviction for fundamental error when a defendant files a notice of appeal only from the sentence imposed and defense counsel files an opening brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We conclude that we have jurisdiction to examine the entire record for fundamental error upon a timely appeal pursuant to A.R.S. § 13-4033. However, as a matter of judicial policy, we will limit the scope of that review to the sentencing order denominated in the notice of appeal if a defendant waives further review by indicating that review of her conviction may be prejudicial.
By indictment dated July 24, 1989, appellant Lisa Gratia Smith (defendant) was charged with Count I, first degree murder, and Count II, conspiracy to commit first degree murder, both class 1 felonies. The state filed an allegation of the dangerous nature of the felony pursuant to A.R.S. § 13-604.
On October 20, 1989, defendant entered into a written plea agreement with the state, in which she agreed to plead guilty to second degree murder, a nondangerous class 1 felony. In exchange, the state agreed to dismissal of Count II and the allegation of dangerousness. The parties further stipulated that "[t]he term of years to be imposed is from 10 to 20 calendar years up to the court," that defendant would be credited with time already served, would be subject to a fine of up to $150,000.00 plus a 37% surcharge, and would have to pay a $100.00 felony assessment, as well as an $8.00 time payment fee. The agreement also provided that restitution of economic loss to the victim would be required, but no amount was stated.
At the change of plea hearing, the court heard an account of the state's case against defendant, and found a factual basis for the plea. The court addressed defendant personally, and made sure she understood the constitutional rights she was waiving, pursuant to Rule 17, Arizona Rules of Criminal Procedure, and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The trial court did not, however, advise defendant at the change of plea hearing that, as a consequence of her guilty plea, she would be required to pay restitution to the victims or the amount of that restitution. See generally State v. Phillips, 152 Ariz. 533, 733 P.2d 1116 (1987).
Prior to sentencing, the court held an extended mitigation hearing, including testimony from defendant's experts regarding the effect of "battered wife syndrome" on her participation in her husband's murder. A presentence report was prepared, which indicated that defendant would owe restitution of $1,470.70 to the victim's parents for funeral expenses and $5,349.91 to the insurer for the cost of damages to the room in which the victim was murdered. 1
At sentencing, the trial court accepted defendant's plea and sentenced her to an aggravated term of eighteen years imprisonment, with credit for 195 days of presentence incarceration, and ordered that she pay a $100.00 felony assessment and an $8.00 time payment fee. The following discussion took place regarding restitution:
THE COURT: ... I will also order that you pay restitution.
Counsel, is there any question about the figures for restitution in the presentence report?
The court also dismissed Count II of the indictment.
Defendant timely filed a notice of appeal, which stated that it was from "the sentence entered in this court on January 25, 1990, at which time Defendant plead[ed] guilty to Count I, Second Degree Murder, and was sentenced to the Department of Corrections for 18 years." (Emphasis added.) Counsel for defendant filed an Anders brief raising no issues but requesting the court to search the record for reversible error. Defendant was afforded an opportunity to file a supplemental brief in propria persona, but did not do so.
After an initial review of the record, another panel of this court, on its own motion, noted "that neither the plea agreement nor the change of plea hearing appears to have informed defendant of the amount of restitution which could be ordered," and directed the parties to file briefs on the merits of the issue whether the matter of the voluntariness of the plea should be remanded to the trial court in accordance with State v. Crowder, 155 Ariz. 477, 747 P.2d 1176 (1987).
The parties subsequently responded to that order; this opinion addresses the issues raised in those responding briefs.
In its response, the state contends that this court does not have subject matter jurisdiction to consider the voluntariness of defendant's plea agreement because she filed a notice of appeal only from her sentence. We disagree.
Jurisdiction to entertain a criminal appeal is vested in this court by the timely filing of a notice of appeal pursuant to a jurisdictional statute. See State v. Berry, 133 Ariz. 264, 266, 650 P.2d 1246, 1248 (App.1982); State v. Good, 9 Ariz.App. 388, 452 P.2d 715 (1969). In the case of a criminal defendant, the jurisdictional statute provides:
An appeal may be taken by the defendant only from:
1. A final judgment of conviction.
2. An order denying a motion for a new trial or denying a motion for an arrest of judgment, or from an order made after judgment affecting the substantial rights of the party.
3. A sentence on the ground that it is illegal or excessive.
A.R.S. § 13-4033. Defendant's notice of appeal states on its face that it is from her "sentence;" we presume she contends that it is excessive, because she makes no argument that it is illegal as beyond the statutory range or contrary to the terms of the plea agreement. Because defendant's appeal was timely filed and raised grounds enumerated in A.R.S. § 13-4033(3), this court has initial jurisdiction to entertain that appeal. See State v. Dawson, 164 Ariz. 278, 280, 792 P.2d 741, 743 (1990) ().
The state challenges our jurisdiction to review the underlying conviction on the basis of the supreme court's holding in Dawson that, in the absence of a cross-appeal from the state, an appellate court will not consider error urged by the state in response to the defendant's own appeal. Id. at 282, 792 P.2d at 745. The jurisdictional defect in Dawson, however, was due to the state's failure to file a timely notice of appeal or cross-appeal under the appropriate jurisdictional statute, when it raised a ground detrimental to defendant that could have been raised under that statute. We do not have such a defect in this case because defendant's notice of appeal vested jurisdiction in this court to consider any error in her sentence, and the state has not suggested any error detrimental to defendant in its answering brief.
We believe the state has placed an undue emphasis on the wording of the notice of appeal in this case. Rule 31.2(d), Arizona Rules of Criminal Procedure, requires only that the notice of appeal "shall identify the order, judgment and sentence appealed from, ... and shall be signed by the appellant or his attorney." The comment to the rule indicates that its purpose is "to provide a simple means for taking appeals and to insure that all persons directly affected by the taking of an appeal are promptly notified." Comment, Rule 31.2, Arizona Rules of Criminal Procedure. The comment also indicates the rule is drawn from Rule 3, Federal Rules of Appellate Procedure. Id.
Cases interpreting the federal counterpart of our rule have concluded that the notice of appeal serves as a notice pleading rather than a jurisdictional limitation on the grounds the court may consider on appeal. See, e.g., Matarese v. LeFevre, 801 F.2d 98, 105 (2d Cir.1986) (); Cobb v. Lewis, 488 F.2d 41, 45 (5th Cir.1974) (). Likewise, this court has interpreted the predecessor to Rule 31.2 to consider technical errors in a notice of appeal to be nonjurisdictional defects that will not render it ineffective absent a showing of prejudice to appellee. State v. Good, 9 Ariz.App. 388, 392, 452 P.2d 715, 720 (1969) (). A similar result has been reached by other state courts. See, e.g., People v. Gibson, 56 Cal.App.3d 119, 128 Cal.Rptr. 302 (1976) ().
We thus find no bar to our subject matter jurisdiction to review defendant's conviction for fundamental error in this case under any of the case law, statutes, or rule provisions cited above.
In our opinion, the state's challenge to this court's consideration of the validity of defendant's conviction in an appeal from her sentence relates more to our scope of review than to our jurisdiction. In a criminal defe...
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