State v. Whitman

• Decision Date: 20 May 2013
• Docket Number: No. 2 CA–CR 2012–0006.,2 CA–CR 2012–0006.
• Citation: State v. Whitman, 301 P.3d 226, 232 Ariz. 60, 661 Ariz. Adv. Rep. 9 (Ariz. App. 2013)
• Parties: The STATE of Arizona, Appellee, v. Brady WHITMAN Jr., Appellant.
• Court: Arizona Court of Appeals

232 Ariz. 60

301 P.3d 226

661 Ariz. Adv. Rep. 9

The STATE of Arizona, Appellee,

v.Brady WHITMAN Jr., Appellant.

No. 2 CA–CR 2012–0006.

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

May 20, 2013.

Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and David A. Sullivan, Tucson, Attorneys for Appellee.

Isabel G. Garcia, Pima County Legal Defender ByScott A. Martin, Tucson, Attorneys for Appellant.

OPINION

ECKERSTROM, Presiding Judge.

[232 Ariz. 61]¶ 1 Following a jury trial, appellantBrady Whitman Jr. was convicted of four counts of aggravated driving under the influence.The trial court sentenced him to concurrent terms of four months' incarceration, pursuant to A.R.S. § 28–1383(D), and five years' probation.Although the state has challenged the timeliness of this appeal, we hold that a criminal defendant's notice of appeal is timely if it is filed within twenty days of the filing of the minute entry that contains the judgment and sentence.The present appeal, therefore, has been properly taken.As to the merits of Whitman's appeal, we find no error in the court's ruling on his suppression motion, and we consequently affirm his convictions and disposition.We set forth the facts below as they relate to each issue discussed.

Jurisdiction

¶ 2 Whitman was sentenced on December 7, 2011.The minute entry documenting this event was filed two days later, on December 9.He filed his notice of appeal on Wednesday, December 28.

¶ 3The state argues, and Whitman originally conceded, that his notice of appeal was filed one day after the twenty-day deadline provided by Rule 31.3, Ariz. R.Crim. P.This argument presumes that the time for filing a notice is measured from the date of sentencing.If this contention were true, and if no other exception applied, we would be forced to dismiss the appeal as untimely due to a lack of jurisdiction.SeeState v. Littleton,146 Ariz. 531, 533, 707 P.2d 329, 331(App.1985)(“The filing of a timely notice of appeal is essential to the exercise of jurisdiction by this court.”);see alsoState v. Johnson,78 Ariz. 211, 212–13, 277 P.2d 1020, 1021–22(1954).Since we ordered supplemental briefing on the issue, however, Whitman has changed his position and now maintains the date the minute entry was filed, rather than the date of oral pronouncement, is relevant to determining timeliness under Rule 31.3.

¶ 4 A threshold question we must decide is how to measure the time for filing a notice of appeal.Article II, § 24 of the Arizona Constitution guarantees a criminal defendant the right to appeal.As the right has been codified by statute, a defendant may appeal from a “final judgment of conviction” or a “sentence ... that is illegal or excessive.”A.R.S. § 13–4033(A)(1), (4).Rule 31.3 provides that “[t]he notice of appeal shall be filed with the clerk of the trial court within 20 days after the entry of judgment and sentence.”Our rules specify that probation is included within the definition of the word “sentence” for appellate purposes.Ariz. R.Crim. P. 26.1 cmt.;State v. Fuentes,26 Ariz.App. 444, 446–47, 549 P.2d 224, 226–27,approved,113 Ariz. 285, 551 P.2d 554(1976).The rules do not, however, expressly state when the “entry of judgment and sentence” occurs.In fact, they present a daunting ambiguity regarding the time for taking an appeal.

¶ 5We interpret court rules using principles of statutory construction.Chronis v. Steinle,220 Ariz. 559, ¶ 6, 208 P.3d 210, 211(2009).Our goal when construing a rule is to give effect to the rule-makers' intent.Id.“To ascertain that intent, we examine ‘the rule's context, the language used, the subject matter, the historical background, the effects and consequences, and its spirit and purpose.’ ”Id., quotingState v. Aguilar,209 Ariz. 40, ¶ 23, 97 P.3d 865, 872(2004).We undertake this review de novo.State ex rel. Thomas v. Newell,221 Ariz. 112, ¶ 7, 210 P.3d 1283, 1285(App.2009).

¶ 6We find substantial support in Arizona law for Whitman's view that the “entry” of judgment and sentence occurs, for the purposes of Rule 31.3, when the clerk of the court files the minute entry documenting the judgment and sentence.In the past, the time for taking an appeal was provided by statute and was measured from the “rendition” of judgment.Ariz. Rev.Code, § 5138(1928);Ariz. Pen.Code, § 1043(1901).Then, as now, the rendition of judgment occurred upon pronouncement by the judge.SeeAriz. R.Crim. P. 26.2(b), 26.10;Ariz. Rev.Code § 5104(1928);see alsoBlack v. Indus. Comm'n,83 Ariz. 121, 128, 317 P.2d 553, 557(1957)(Struckmeyer, J., dissenting)(“[P]ronouncement is ... universally accepted as the rendition of judgment.”);Moulton v. Smith,23 Ariz. 319, 321, 203 P. 562, 563(1922)(“[T]he term ‘rendering judgment’ ... mean[s]the act of the court in announcing its final determination of ... the action.”);State v. Madrid,9 Ariz.App. 207, 209, 450 P.2d 719, 721(1969)(“Rendition of judgment is ... pronouncement by the court of its decision.”).

¶ 7 Our appellate procedure changed in 1940, when our newly enacted criminal rules measured the time for an appeal from the date that a judgment or sentence was “entered” of record.Ariz.Code Ann., § 44–2509(1939)(former § 420,Rules of Criminal Procedure);seeAriz.Code Ann., §§ 44–2223,44–2551 (1939).The “[e]ntry of judgment is a ministerial act required to be done by the clerk of the court as distinguished from the judicial act of pronouncing judgment.”Madrid, 9 Ariz.App. at 209, 450 P.2d at 721;accordBlack,83 Ariz. at 128–29, 317 P.2d at 557–58(Struckmeyer, J., dissenting);Moulton,23 Ariz. at 321–22, 203 P. at 563;Black's Law Dictionary 613 (9th ed. 2009)(defining “entry of judgment” as “[t]he ministerial act of recording a court's final decision, usu. by noting it in a judgment book or civil docket”).Despite other changes to the rules since 1940, the specific provision governing the time for taking an appeal has continued to identify the “entry” of judgment and sentence as the operative event.SeeAriz. R.Crim. P. 31.3, 17 A.R.S.(1973);Ariz. R.Crim. P. 348, 17 A.R.S.(1956).

¶ 8 For much of our state's history, therefore, we have expressed the view that “[i]n criminal matters, the judgment is complete, valid and appealable only when it is orally pronounced in open court[a]nd entered on the clerk's minutes.”State v. Rendel,18 Ariz.App. 201, 205, 501 P.2d 42, 46(1972);seeState v. Falkner,112 Ariz. 372, 373, 542 P.2d 404, 405(1975).More recent cases have echoed this principle.See, e.g., State v. Bolding,227 Ariz. 82, ¶ 13, 253 P.3d 279, 284(App.2011)(“A judgment of conviction is final only when a verdict has been rendered, whether by jury or the trial court after a bench trial, and sentence has been ‘orally pronounced in open court and entered on the clerk's minutes.’ ”), quotingState v. Glasscock,168 Ariz. 265, 267 n. 2, 812 P.2d 1083, 1085 n. 2(App.1990);State v. Perez,172 Ariz. 290, 292, 836 P.2d 1000, 1002(App.1992)(“Judgment is not final until it is orally pronounced and entered in the court's minutes.”).

¶ 9 To this day, the “entry” of judgment occurs for the purpose of determining the timeliness of civil appeals when the document is “file-stamped by the clerk.”Haroutunian v. Valueoptions, Inc.,218 Ariz. 541, ¶ 10, 189 P.3d 1114, 1118(App.2008);seeAriz.R. Civ.App.P. 8(a), 9(a);Ariz. R. Civ. P. 58(a).Similarly, in cases involving the severance of parental rights, the “entry” of the juvenile court's order concludes the proceeding, A.R.S. § 8–538(A), and the time for taking an appeal is consequently measured from the date “the final order is filed with the clerk.”Ariz. R.P. Juv. Ct. 104(A).Ordinarily, the term “entry” means “[t]he inclusion or insertion of an item, as in a record”; the word also refers to “an item entered in this way.”The American Heritage Dictionary 596 (5th ed. 2011);seeRivera–Longoria v. Slayton,228 Ariz. 156, ¶¶ 17–18, 264 P.3d 866, 869(2011)(using dictionary to provide ordinary meaning of language in rule).In these other contexts, therefore, the term “entry” retains its usual clerical sense.

¶ 10 Rule 26.16(b), Ariz. R.Crim. P., provides that the “court or person authorized by the court shall forthwith enter the exact terms of the judgment and sentence in the court's minutes.”A “minute entry” is defined as a “memorialization ... either by form or narrative of events occurring during a court proceeding,” and it includes “all official acts occurring during the proceeding.”Ariz. R. Sup.Ct. 125(a).Accordingly, the timeliness of criminal appeals, like ordinary civil appeals, would appear to depend on the entry of the relevant document, meaning the date the minute entry is filed, and not the date of judicial pronouncement.

¶ 11 A contrary interpretation, however, finds at least equal support in the law.As noted, Rule 31.3 measures the time for taking an appeal from “the entry of judgment and sentence.”Rule 26.16(a), which is entitled “Entry of Judgment and Sentence,” provides that “[t]he judgment of conviction and the sentence thereon are complete and valid as of the time of their oral pronouncement in open court.”The title of a rule, no less than that of a statute, may be instructive when determining the intended meaning of an ambiguous provision.SeeState v. Box,205 Ariz. 492, ¶ 11, 73 P.3d 623, 627(App.2003).In addition, Rule 35.6, Ariz. R.Crim. P., implies that certain orders in criminal cases will be “ent[ered] ... in open court.”And Rule 31.8(b)(2)(iii) requires a court reporter to provide a certified transcript of the “entry of judgment and sentence,” suggesting such an “entry” occurs in open court during oral pronouncement.

¶ 12 It has long been held that the oral pronouncement of a sentence controls over the minutes or written judgment, State v. Jefferson,108 Ariz. 600, 601, 503 P.2d 942, 943(1972);State v. Johnson,108 Ariz. 116, 118, 493 P.2d 498, 500(1972), and...