State v. Soto

• Decision Date: 08 February 2010
• Docket Number: No. 2 CA-CR 2008-0405.,No. 2 CA-CR 2008-0406.,2 CA-CR 2008-0405.,2 CA-CR 2008-0406.
• Citation: 224 P.3d 223
• Parties: The STATE of Arizona, Appellee, v. Jesus Humberto SOTO, Appellant.
• Court: Arizona Court of Appeals

224 P.3d 223

The STATE of Arizona, Appellee, v. Jesus Humberto SOTO, Appellant.

No. 2 CA-CR 2008-0405.

No. 2 CA-CR 2008-0406.

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

February 8, 2010.

Terry Goddard, Arizona Attorney General By Laura P. Chiasson, Tucson, Attorneys for Appellee.

Isabel G. Garcia, Pima County Legal Defender By Robb P. Holmes, Tucson, Attorneys for Appellant.

ECKERSTROM, Presiding Judge.

¶ 1 Appellant Jesus Soto was convicted of various offenses after jury trials in two separate criminal cases, and he filed an appeal in each case. Appellee State of Arizona moved to dismiss Soto's appeals on the ground this court lacked jurisdiction pursuant to A.R.S. § 13-4033(C). After we originally granted the state's motions and initially denied Soto's motion to recall our mandate issued in No. 2 CA-CR 2008-0405, we subsequently consolidated the two appeals and recalled the mandates after concluding we had improvidently granted the state's motions to dismiss filed in both appeals before comprehensively considering the underlying issues. Because we conclude § 13-4033(C)'s provisions as applied to Soto would be unconstitutional, we now deny the state's motions to dismiss, thereby affirming the reinstatement of these appeals.

¶ 2 On July 1, 2004, in Pima County cause number CR-20031147, a jury found Soto guilty of possession of a deadly weapon by a prohibited possessor. Although he had appeared for the first two days of trial, he failed to appear on the third day. On August 4, 2004, in Pima County cause number CR-20040081, Soto was tried by a jury in absentia and found guilty of, inter alia, possession of a narcotic drug for sale. Warrants were issued for Soto's arrest in both cases, but he was not apprehended until October 2008. The trial court sentenced him on December 1, 2008, to an enhanced, presumptive term of ten years' imprisonment in CR-20031147, to be served concurrently with the sentences imposed in CR-20040081, the longer of which were aggravated terms of thirteen years.

¶ 3 Although a defendant may waive his appearance at trial, State v. Tamplin, 126 Ariz. 175, 177, 613 P.2d 839, 841 (App.1980), the sentencing generally cannot occur in his absence. Ariz. R.Crim. P. 26.9; State v. Fettis, 136 Ariz. 58, 59, 664 P.2d 208, 209 (1983). Thus, defendants, like Soto, who are convicted but fail to appear for sentencing, may prevent sentencing from occurring until they later appear voluntarily or are arrested. See State v. LeMaster, 137 Ariz. 159, 669 P.2d 592, supp. op., 137 Ariz. 168, 168, 669 P.2d 601, 601 (App.1983).

¶ 4 In 2008, the Arizona legislature amended § 13-4033, the statute governing appeals that may be taken by a criminal defendant, by adding a new subsection. The statute had previously read:

A. An appeal may be taken by a defendant only from:

1. A final judgment of conviction or verdict of guilty except insane.

2. An order denying a motion for a new trial or from an order made after judgment affecting the substantial rights of the party.

3. A sentence on the grounds that it is illegal or excessive.

B. In noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or an admission to a probation violation.

1993 Ariz. Sess. Laws, ch. 256, § 6. The 2008 amendment added subsection (C), which states that "[a] defendant may not appeal under subsection A, paragraph 1 or 2 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."¹ § 13-4033(A), (C); see also 2008 Ariz. Sess. Laws, ch. 25, § 1.

¶ 5 Soto argues, inter alia, that the application of § 13-4033(C) to him violates article II, § 24 of the Arizona Constitution. We have a duty to construe a statute so that it is constitutional. State v. Ramsey, 211 Ariz. 529, ¶ 17, 124 P.3d 756, 763 (App.2005). And, in construing a statute, our principal goal is to give effect to the legislature's intent; the plain language of the statute is usually the best evidence of that intent. State v. Rios, 217 Ariz. 249, ¶ 7, 172 P.3d 844, 845 (App.2007).

¶ 6 Article II, § 24 expressly provides that persons "accused in criminal prosecutions" have "the right to appeal in all cases." Because § 13-4033(C) takes away an accused's right to a direct appeal in certain circumstances, it is facially unconstitutional, unless we can conclude another meaningful avenue of obtaining state appellate redress is available to such defendants. See Montgomery v. Sheldon, 181 Ariz. 256, 889 P.2d 614, supp. op., 182 Ariz. 118, 119 n. 1, 893 P.2d 1281, 1282 n. 1 (1995) (interpreting state constitutional right to appellate review as "an essential safeguard against wrongful conviction" requiring "a meaningful form of appeal"); see also State v. Schackart, 175 Ariz. 494, 498-99, 858 P.2d 639, 643-44 (1993) (record must be sufficient "to afford defendant a meaningful right of appeal" under state constitution).

¶ 7 Preliminarily, we observe that by taking away absconding defendants' right to appeal, § 13-4033(C) presumably leaves such defendants only one avenue of appellate review: post-conviction relief pursuant to Rule 32, Ariz. R.Crim. P. In the analogous context of the legislature's adoption of § 13-4033(B), a provision precluding a pleading defendant from directly appealing his conviction or sentence, see 1992 Ariz. Sess. Laws, ch. 184, § 1, our supreme court held Rule 32 relief was still available to those defendants. See Wilson v. Ellis, 176 Ariz. 121, 123, 859 P.2d 744, 746 (1993) ("Clearly, art. [II], § 24 guarantees some form of appellate relief."). And, the court found that a defendant's right to file a petition pursuant to Rule 32 satisfied a pleading defendant's right to appeal under the Arizona Constitution. See State v. Smith, 184 Ariz. 456, 458, 910 P.2d 1, 3 (1996) ("It is through operation of the rules governing post-conviction relief that our constitutional guarantee of appellate review in all cases is effectuated for pleading defendants."); Montgomery, 181 Ariz. at 258, 889 P.2d at 616 (for pleading defendants, "a Rule 32 proceeding is the only means available for exercising the constitutional right to appellate review"); Ellis, 176 Ariz. at 123, 859 P.2d at 746 ("It was precisely because of art. [II], § 24 that this court expressly left open the avenue of appellate review by [post-conviction relief] in lieu of direct appeal when it amended the rules with respect to cases involving admissions of probation violations [and guilty pleas]."); State v. Carriger, 143 Ariz. 142, 146, 692 P.2d 991, 995 (1984) (post-conviction relief "`designed to accommodate the unusual situation where justice ran its course and yet went awry'"). Because § 13-4033(C) similarly withholds only the right of "appeal" and does not preclude specifically any class of defendants from seeking post-conviction relief, we assume that Rule 32 remedies likewise would remain available to defendants who have delayed their sentencing proceedings by voluntarily failing to appear.

¶ 8 But unlike § 13-4033(B), § 13-4033(C) applies to non-pleading defendants. We must therefore determine whether a Rule 32 proceeding similarly satisfies a non-pleading defendant's constitutionally protected right to a meaningful appeal. As discussed below, the nature and extent of the legal claims available to a pleading defendant are markedly narrower than those available to a defendant who has been convicted after trial. And, as discussed below, the cognizable claims for relief that may be asserted in a Rule 32 proceeding, see Ariz. R.Crim. P. 32.1, encompass all conceivable claims a pleading defendant could raise. But Rule 32 does not provide a corresponding avenue of appeal for many potential trial and other claims that a non-pleading defendant might raise. We conclude, therefore, that Rule 32 does not satisfy a non-pleading defendant's right to appeal under article II, § 24.

¶ 9 There can be little dispute that the range of potential appellate claims a non-pleading defendant might raise in challenging a conviction and sentence is considerably broader than that available to a pleading defendant. A defendant who enters a valid guilty plea waives the "right to assert on appeal all nonjurisdictional defenses, errors and defects occurring prior to the plea proceedings." State v. Moreno, 134 Ariz. 199, 200, 655 P.2d 23, 24 (App.1982), disapproved on other grounds by State ex rel. Dean v. Dolny, 161 Ariz. 297, 778 P.2d 1193 (1989); accord State v. Lerner, 113 Ariz. 284, 284-85, 551 P.2d 553, 553-54 (1976). The primary challenges that remain for a pleading defendant are challenges to the validity of the plea agreement and challenges to the sentence imposed. See Crane McClennen, Eliminating Appeals from Guilty Pleas: Making the Process More Efficient, 29 Ariz. Att'y 15, 16 (Nov.1992) (setting forth types of cognizable appellate challenges for pleading defendants); see, e.g., State v. Phillips, 139 Ariz. 327, 329, 678 P.2d 512, 514 (App.1983).

¶ 10 A valid guilty plea is one that has a sufficient factual basis and is entered knowingly, intelligently, and voluntarily with the competent assistance of counsel under federal constitutional standards. See State v. Hamilton, 142 Ariz. 91, 94 n. 3, 688 P.2d 983, 986 n. 3 (1984); State v. Reed, 121 Ariz. 547, 548, 592 P.2d 381, 382 (App.1979); see also Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (applying Sixth Amendment standard for ineffective assistance of counsel in guilty plea context); Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (requiring knowing, voluntary, and intelligent waiver for valid guilty plea); State v. Johnson, 181 Ariz. 346, 349-50, 890 P.2d 641, 644-45 (App.1995) (reviewing whether sufficient factual basis supported plea). Because Rule 32 provides a remedy for...