State v. Maldonado

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) FRANK R MALDONADO, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 05/12/09 PHILIP G. URRY,CLERK BY: DN No. 1 CA-CR 07-0837 DEPARTMENT D O P I N I O N Appeal from the Superior Court in Maricopa County Cause No. CR2006-174875-001 SE The Honorable Paul J. McMurdie, Judge AFFIRMED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel, Criminal Appeals Section/Capital Litigation Section and Jessica L. Quickle, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Karen M. V. Noble, Deputy Public Defender Attorneys for Appellant Phoenix S W A N N, Judge ¶1 Frank R. Maldonado ( Defendant ) appeals from his conviction and sentence for Possession of Narcotic Drugs with Two or More pursuant Prior to Defendant Felony Arizona contends Convictions, Revised that Statutes because the a class four felony, § 13-3408. ( A.R.S. ) only information in the court s file was dated and filed after he was convicted and sentenced, the court lacked subject matter jurisdiction and he is entitled conclude to that reversal. the court For had the subject reasons matter that follow, jurisdiction we and affirm. FACTS1 AND PROCEDURAL HISTORY ¶2 On December complaint, charging: 8, 2006, the State filed a direct [I]n Maricopa County, Arizona, Frank R. Maldonado, on or about the 25th day of April, 2006, knowingly possessed or used cocaine base of hydrolyzed (crack) cocaine, a narcotic drug, in violation of . . . A.R.S. § 13-3408. ¶3 A preliminary hearing, at which Defendant was present and represented by counsel, was held on January 12, 2007. At the hearing, the State produced the testimony of one of the police counsel officers involved conducted in Defendant s cross-examination. arrest, After and defense considering the testimony, the court found probable cause to hold Defendant to stand trial on the charge set forth in the complaint. 1 Defendant We view the evidence in the light most favorable to sustaining the verdict[] and resolve all inferences against [Defendant]. State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997) (citing State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992)). 2 was then arraigned, and entered a plea of not guilty. In its minute entry for the preliminary hearing and arraignment, the court noted: ¶4 Filed: Information. Trial commenced on June 19, 2007. After the jury was empanelled and sworn, the court instructed the clerk to read the charges. The court s minute entry notes that the charge read was from the information. In pertinent part, the language read to the jury mirrored exactly the language of the complaint, except that the charging date was read as June 19, 2007, the date of trial. Defendant raised no objection to the reading of the charge. ¶5 On June 25, 2007, the jury found Defendant guilty of Possession or Use of Narcotic Drugs. On September 13, 2007, the court found Defendant guilty of Possession or Use of Narcotic Drugs with Two or More Prior Felony Convictions, and sentenced him to an exceptionally mitigated term of six years of imprisonment. ¶6 Defendant Defendant s timely appellate appealed. counsel informed On this June court 20, 2008, that the information was not included in the record on appeal and could not be located in the superior court s electronic court record. Counsel moved to supplement the record with the information. We granted the motion and extended the deadline for filing the 3 Opening Brief to August 14, 2008. The Opening Brief was filed on July 22, 2008. ¶7 On August 26, 2008, an information was filed with the superior court, and three days later it was filed with this court. The language of the filed information contains exactly the language of the complaint and the charge read at trial, except that it recites a charging date of August 26, 2008. ¶8 of We have jurisdiction pursuant to Article 6, Section 9 the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2001), and -4033(A)(1) (Supp. 2008). STANDARD OF REVIEW ¶9 This appeal raises a question jurisdiction, which we review de novo. of subject matter State v. Flores, 218 Ariz. 407, 410, ¶ 6, 188 P.3d 706, 709 (App. 2008) (citing State v. Sorkhabi, 202 Ariz. 450, 452, ¶ 5, 46 P.3d 1071, 1073 (App. 2002); In re Marriage of Crawford, 180 Ariz. 324, 326, 884 P.2d 210, 212 (App. 1994)). Defects in subject matter jurisdiction cannot be waived and may be contested at any time, including on appeal. State v. Buckley, 153 Ariz. 91, 93, 734 P.2d 1047, 1049 (App. 1987) (citing State v. Municipal Court, 124 Ariz. 543, 606 P.2d 33 (App. 1979); Bruce v. State, 126 Ariz. 271, 614 P.2d 813 (1980)). 4 DISCUSSION ¶10 Article provides: 2, Section 30 of the Arizona Constitution No person shall be prosecuted criminally in any court of record for felony or misdemeanor, otherwise than by information or indictment; no person shall be prosecuted for felony by information without examination before a preliminary examination. having magistrate An had or a having information preliminary waived is a such written statement charging the commission of a public offense, signed and presented to the court by the prosecutor. P. 13.1(b). facts It must contain a plain, concise statement of the sufficiently offense Ariz. R. Crim. charged, definite and must to inform also the state defendant for each of the count the official or customary citation of the . . . provision of law which the defendant is alleged to have violated. Ariz. R. Crim. P. 13.2(a)-(b). ¶11 The information must be filed in the superior court within ten days of a determination of probable cause or the defendant s waiver of a preliminary hearing. 13.1(c). Ariz. R. Crim. P. If it is not timely filed, the case may be dismissed without prejudice upon the defendant s motion. Id. But it is well settled that the defendant may waive his right to pursue such a motion to dismiss. 244, 407 P.2d 783, 785 State v. Sheppard, 2 Ariz. App. 242, (1966). 5 The timeliness of the information, therefore, is a procedural requirement and an untimely information does not itself defeat jurisdiction. ¶12 In State v. Smith, the Arizona Supreme Court held that an information must indicate the crime charged and must contain a statement of the essential elements of the indicated crime. 66 Ariz. 376, 377, 189 P.2d 205, 206 (1948) (citing Cochran v. United States, 157 U.S. 286, 290 (1895); United States v. Cruikshank, 92 U.S. 542, 545 (1875); Elder v. United States, 142 F.2d 199 (9th Cir. 1944); Woolley v. United States, 97 F.2d 258 (9th Cir. 1938); George v. Williams, 26 Ariz. 91, 222 P. 410 (1924)). Absent a proper information, the court does not acquire subject matter jurisdiction and any conviction must be reversed. Id. at 379, 189 P.2d at 207; see also State v. Fuentes, 12 Ariz. App. 48, 49, 467 P.2d 760, 761 (1970) ( The filing of an jurisdiction information on the is court, essential and a in failure information requires reversal . . . . ). order to to file confer a valid But a technical defect in an information may be corrected upon timely motion, and the lack of a timely correction subject matter jurisdiction. does not automatically destroy See State v. Branham, 4 Ariz. App. 185, 188, 418 P.2d 615, 618 (1966). ¶13 may Since Smith, we have recognized that other documents satisfy the information requirement matter jurisdiction on the court. 6 and confer subject In Buckley, no information was filed.2 contained 153 Ariz. at 93, 734 P.2d at 1048. both a complaint clearly stating But the record the nature and elements of the offense with which the defendant was charged, and a signed plea agreement which by superseded any prior charging documents. 1050. its terms amended and Id. at 94, 734 P.2d at No preliminary hearing was held in Buckley because the defendant had waived his right to such a hearing. Id. Though we recognized the general rule that the filing of an information is required to confer subject matter jurisdiction, we held that the other filed documents, taken together, purposes of the information requirement. satisfied the Id. (citing State v. Rogers, 113 Ariz. 6, 545 P.2d 930 (1976)). The defendant did not allege lack of notice, and the complaint and plea agreement clearly stated the nature of the offense charged. Id. The complaint and plea agreement therefore gave the defendant notice of, and sufficiently protected him from double jeopardy for, the charges to which he pled guilty and for which he was sentenced. Id. that Accordingly, we held that any error was technical only, and the equivalent documents of an of record information cumulatively and jurisdiction on the superior court. conferred Id. constituted subject the matter This approach comports with Article 6, Section 27 of the Arizona Constitution, which 2 Here, by contrast, the record contains numerous references to an information, though the actual document was never entered in the docket before this appeal. 7 provides: No cause shall be reversed for technical error in pleadings or proceedings when upon the whole case it shall appear that substantial justice has been done. ¶14 Here, the State contends that the record contains ample circumstantial evidence to prove that an information was timely filed, and that the absence of the information from the record is necessarily due to a clerical error for which the State bears no responsibility. In support of its argument, the State 12, points to the January 2007 minute entry of the preliminary hearing, which notes that an information was filed, and to the June 19, 2007 minute entry and transcript, which reflect that on the first day of trial the information (without objection) to the jury. clerk read an As plausible as the State s explanation may be, we have no means of determining with certainty that a formal information was timely filed, and therefore do not decide the case on this ground. ¶15 Rather, we supports affirmance conclude on this that the record. rationale Like the in Buckley defendant in Buckley, Defendant does not contend that he lacked notice of the charge against him or that he was deprived of the opportunity to prepare a defense. Moreover, the facts affirmatively demonstrate that Defendant was provided adequate notice of the charge against him, and that the charge was sufficiently stated 8 in the complaint, preliminary hearing and at trial to confer jurisdiction. ¶16 by The record in this case is far from ideal. this decision requirement or diminish approve the importance any practice of that the We do not information shortcuts procedural requirements set forth in the rules. the But to the extent a procedural defect actually existed in this case, we are convinced that it was not jurisdictional and did not prejudice Defendant s rights. CONCLUSION ¶17 For the foregoing reasons, we affirm. ___________________________________ PETER B. SWANN, Judge CONCURRING: ____________________________________ PATRICIA A. OROZCO, Presiding Judge ____________________________________ PATRICK IRVINE, Judge 9

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