STATE v. PRINCE

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) LARRY JOSEPH PRINCE, ) ) Appellant. ) ________________________________) DIVISION ONE FILED: 8/13/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-HC 13-0001 DEPARTMENT A MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure Appeal from the Superior Court in Maricopa County Cause No. CR0000-151033 The Honorable Daniel G. Martin, Judge AFFIRMED William G. Montgomery, Maricopa County Attorney By Diane Meloche, Deputy County Attorney Attorneys for Plaintiffs/Appellants Phoenix Larry Joe Prince In Propria Persona Appellant Phoenix G E M M I L L, Judge ¶1 Larry Joseph Prince appeals from the trial court s order denying his petition for a writ of habeas corpus. For the following reasons, we affirm. BACKGROUND ¶2 In April 1986, following a thirteen-day trial, a jury convicted Prince of first degree murder, and in May 1986, the court sentenced Prince to death. and on April Prince s 6, 1989, conviction the but Prince filed a direct appeal Arizona modified Supreme his Court sentence affirmed to life imprisonment without possibility of parole for twenty-five years . . . . 1129 State v. Prince, 160 Ariz. 268, 276, 772 P.2d 1121, (1989). Further, the supreme court noted that because Prince had been previously sentenced to death, the trial court had not considered whether Prince s sentence on the murder charge should be concurrent with or consecutive to an earlier sentence imposed on him for a drug charge. Id. at 277, 772 P.2d at 1130. The supreme court thus remanded to the trial court for sole the purpose of determining whether sentences should be concurrent or consecutive. ¶3 [Prince s] Id. On August 22, 1989, the trial court held a hearing and issued a minute entry referring to the supreme court mandate and listing Prince s sentence as [l]ife imprisonment without the possibility of parole for 25 calendar years. The court also ruled that Prince s life sentence was to run concurrently with his sentence on the drug charge. ¶4 corpus On October 24, 2012, Prince filed a writ of habeas with the trial court alleging that his sentence expired and he was being held in custody illegally. had Prince alleges that during the hearing on August 22, 1989, the trial 2 court verbally pronounced that he was to serve a life sentence, but described life as meaning that Prince would be released from custody upon serving 25 calendar years imprisonment. ¶5 The trial court denied Prince s petition for habeas corpus relief without a hearing. supreme court in State v. The court stated that the Prince did not remand for resentencing, as Prince alleges in his petition, but rather modified his sentence to life without the possibility of parole for twenty-five years and remanded solely for resolution of the issue of whether consecutively. trial court his sentences should run concurrently or The trial court further stated that nothing the may subsequently have said (even accepting [Prince s] assertions as true) changed that ruling because the court lacked the authority to do so. Prince timely appeals and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(11) (Supp. 2012). See also Ariz. Const. art 2, § 14. ANALYSIS ¶6 for In reviewing an appeal from the denial of a petition a writ determining of habeas whether the corpus, review is court trial our abused its limited to discretion. Salstrom v. State, 148 Ariz. 382, 384, 714 P.2d 875, 877 (App. 1986). An abuse of discretion includes an error of law. State v. Burgett, 226 Ariz. 85, 86, ¶ 1, 244 P.3d 89, 90 (App. 2010). We review issues of law de novo. 3 State v. Smith, 215 Ariz. 221, 227, ¶ 14, 159 P.3d 531, 537 (2007). ¶7 Prince argues the trial court erred in rejecting his petition. He asserts that the twenty-five calendar year sentence he alleges the trial court pronounced was an illegal sentence because supreme court effect at it had the conflicted imposed time, with upon which him the and defined sentence with a the life that the statute in sentence as imprisonment without possibility of parole until the completion of the service of twenty-five calendar years. . . . 13-703(A) (Supp. 1983-84). of his sentence is A.R.S. § Prince argues that his understanding nonetheless effective because an oral pronouncement is controlling over a written minute entry and because the State did not appeal from it. 1 We disagree that the alleged oral description of the sentence is effective because, even if we assume the trial court did make the oral pronouncement that Prince alleges, such a sentence would be void as a matter of law. ¶8 An order is void if the court entering it lacked jurisdiction . . . to render the particular judgment or order entered. State v. Bryant, 219 Ariz. 514, 517, ¶ 13, 200 P.3d 1011, 1014 (App. 2008). any time. An order that is void may be vacated at Id. at 518, ¶ 14, 200 P.3d at 1015. 1 Here, the trial No transcript is available to establish the trial court s oral pronouncement. The record reveals unsuccessful attempts to locate the court reporter or court reporter s notes. 4 court did supreme not court have jurisdiction imposed on to modify the The supreme Prince. sentence court the has statutory authority to reduce a defendant s sentence when it finds that the sentence given by the trial court is excessive. A.R.S. 13-4037(B) provide authority (2010). for a The trial statute court to does not, further however, reduce otherwise modify a sentence imposed by the supreme court. or To the contrary, the statute states that when the supreme court reduces a sentence, it shall be enforced by the court from which the appeal was taken. Id. (emphasis added). Moreover, A.R.S. § 13-4040 (2010) states that after receiving a decision from the supreme court, the trial court is to make those orders which may be necessary to carry the decision of the supreme court into effect . . . . court authority to change The statutes do not give the trial the effect of the supreme court s decision. ¶9 Further, it is well established that a trial court does not have inherent authority to modify a lawfully imposed sentence. State v. Falkner, 112 Ariz. 372, 374, 542 P.2d 404, 406 (1975) (vacating modified sentence where trial court lacked jurisdiction to modify it and reinstating original sentence); State v. House, 169 Ariz. 572, 573, 821 P.2d 233, 234 (App. 1991) (same). While Rule of Criminal Procedure 24.3 does give the trial court authority to modify a sentence, this authority 5 is effective only when the sentence has been imposed in an unlawful manner and the defendant has not yet taken a direct appeal. This rule is inapplicable here because the trial court had no jurisdiction to modify the sentence lawfully imposed by the supreme court. Further, given that a court may not amend a lawful sentence in favor of another lawful sentence, it would be illogical to allow a court to turn a lawful sentence issued by the supreme court into an unlawful one, as Prince claims was done here. ¶10 the The trial court s jurisdiction in 1989 was limited to mandate of the supreme court. See Harbel Oil Co. v. Superior Court of Maricopa County, 86 Ariz. 303, 306, 345 P.2d 427, 429 (1959) (trial court s jurisdiction on remand is delimited by the terms of the mandate); Vargas v. Superior Court of Apache County, 60 Ariz. 395, 397, 138 P.2d 287, 288 (1943) (stating supreme court mandate must be strictly followed). Therefore, even assuming that Prince s allegations are true, the trial court would have exceeded its jurisdiction and the amended sentence would be void and could be vacated at any time, regardless of whether the State appealed the sentence at the time it was allegedly pronounced. See Bryant, at 518, ¶ 14, 200 P.3d at 1015; see also State v. Hill, 85 Ariz. 49, 53-54, 330 P.2d 1088, 1090-91 (1958) (holding trial court s order granting new trial was void for lack of jurisdiction where court did not 6 comply with Criminal Rule provisions). We therefore find the trial court did not abuse its discretion in denying Prince s petition for a writ of habeas corpus. CONCLUSION ¶11 For the foregoing reasons, we affirm the trial court s denial of Prince s petition for a writ of habeas corpus. /s/ _________________________________ JOHN C. GEMMILL, Judge CONCURRING: /s/ _________________________________ PETER B. SWANN, Presiding Judge /s/ _________________________________ PATRICIA A. OROZCO, Judge 7

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