STATE OF ARIZONA v. ARMANDO D. RODRIGUEZ-GONZALES; HIEBER

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Appellee, v. ARMANDO D. RODRIGUEZGONZALES; and WILLIAM RALPH HIEBER Appellants. ) ) ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2002-0285 2 CA-CR 2002-0431 (Consolidated) DEPARTMENT B O P I N IO N APPEALS FROM THE SUPERIOR COURT OF PIMA COUNTY Cause Nos. CR-65642 and CR-20000093 Honorable Deborah Bernini, Judge Honorable H oward Fell, Judg e Pro Tempo re DISMISSED Terry Goddard, Arizona Attorney General By Randall M. Howe and Diane Leigh Hunt Isabel G. Garcia, Pima County Legal Defender By Joy Athena E S P I N O S A, Chief Judge. Tucson Attorneys for Appellee Tucson Attorneys fo r Appellan ts ¶1 In consolidated direct appeals, appellants Armando Rodriguez-Gonzalez and William Hieber challenge their sentences. Both had originally been sentenced following guilty pleas but had been granted new sentencing hearings through successful post-conviction proceedings pursuant to Rule 32, Ariz. R . Crim. P., 17 A .R.S. Appellants argue tha t this court has subject matter jurisdiction and that they are not required to engage in further Rule 32 proceedings to challenge their new sentences. For the reasons set forth below, we disagree and dismiss the appeals. Facts and Procedural Background ¶2 Followin g a mistrial on m ultiple narcotics charges, Rodriguez-Gonzalez pled guilty to possessing heroin for sale, a class two felony, with one prior conviction. The trial court sentenced him to a partia lly aggravated prison term of twelve years enhanced by his prior federal conviction for illegal reentry. In his Rule 32 petition, R odriguez-G onzalez argued his sentence was unlawfully enhanced because there is no Arizona offense equivalent to illegal reentry. See A.R.S. § 13-604(N). The trial court agreed and granted Rodriguez-Gonzalez a new sentencing hearing. He wa s subsequ ently sentence d to a presu mptive, five-year term to be served consecutively to the term imposed in his federal case, and filed a timely notice of appeal. ¶3 Hieber had pled guilty to aggravated assault, endangerment, and misdemeanor driving while under the influence of an intoxicant. The trial court sentenced him to concurrent prison terms, the longest of w hich was an aggrav ated, five-year term on the a ggravated assault charge. This court granted Hieber partial relief in his petition for review of the trial court s 2 summary denial of his Rule 32 petition, finding he had raised colorable claims of wheth er his aggravated assault sentence had been unlawfully aggravated by charges that were then pending and whether the evidence supported the amount of restitution imposed. State v. Hieber, No. 2 CA-CR 2001-0408-PR (memorandum de cision filed June 4, 2002). The trial court subseque ntly resentenced Hieber to a presum ptive 3.5-yea r prison term fo r aggravate d assault. This appeal followed. Subject Matter Jurisdiction ¶4 Appellan ts acknowledge that defendants who plead guilty are not entitled to direct review in this court, see A.R.S. § 13-4033(B); Ariz. R. Crim. P. 17.1(e), 16A A.R.S., but argue that direct appeal is now ap propriate because they are challenging sentences imposed during new sentencing hearings. A ppellants contend they have rights of direct review under § 13-4033(A)(2 ) or (A)(3). Under those pro visions, a defendant ma y take an appeal from [ a]n order denying a motion for a new trial or from an order made after judgment affecting the substantial rights of the party, § 13-4033(A)(2), or from [a] sentence o n the grounds that it is illegal or excessive. § 13-403 3(A)(3). ¶5 As the state points out, the provisions of § 13-4033(A)(2) and (3) are limited by subsection B to certain defendants. That subsection states, [i]n noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or an adm ission to a pro bation violation. Accordingly, any right of appeal appellants have under subsection (A)(2) or (A)(3) is restricted by subsection (B), which precludes a direct appeal from a judgment or sentence entered pursuant to a plea agreement. 3 State v. Jimenez, 188 Ariz. 342, 34 4, 935 P.2d 920, 922 (Ap p. 1996); see also Ariz. R. Crim. P. 17.1(e) ( By pleading guilty . . . in a nonc apital case, a d efendant w aives the righ t to have the appellate courts review the proceedings by way of direct appeal, and may seek review only by filing a petition for post-conviction relief pursuant to Rule 32 and, if denied, a petition for review. ). Here, the new sentencing ord ers merely plac ed appellan ts in the position in which they would have b een had they been se ntenced correctly in the first place. See State v. Thomas, 142 Ariz . 201, 204, 688 P.2d 1093, 1096 (App. 1984) (after sentences vacated by appellate court and case remanded, trial court was not modifying previously imposed sentences . . . but rather was sentencing anew ); State v. Py eatt, 135 Ariz. 141, 143, 659 P.2d 1286, 1288 (A pp. 1982 ) ( An illegal sentence is no sentence at all. ). Consequently, the appellants are seeking direc t review of a sentence e ntered purs uant to a plea agreeme nt, something this court has no jurisdictio n to do. § 1 3-4033(B ); Jimenez. ¶6 In seeking to avoid this result, appellants rely on Jimenez, a Division One case in which a defen dant ha d pled g uilty, was placed on probation, and then appealed from the trial court s denial of a motion to modify the conditions of probation. The court dismissed the appeal for want o f subject ma tter jurisdiction, concludin g that the court s denial of the defendant s motion to modify the terms o f his probatio n was no t an order affecting his substantial rights. The court then stated, If the trial court s order had actually changed or modified the judgment or sentence originally imposed, we assume defendant would have had the right of direct appeal. Jimenez, 188 Ariz. at 345, 935 P.2d at 923. But here, the resentencing orders were not changes or modifications of the sentences originally imposed, 4 but new orders, replacing the original unlawful orders as if they had not existed. See Thomas; Pyeatt. ¶7 We conclude we do not have appellate jurisdiction of these consolidated appeals; they are therefore dismissed. PHILIP G. ESPINOSA, Chief Judge CONCURRING: JOHN PELANDER, Presiding Judge PETER J. ECKERSTROM, Judge 5

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