STATE v. JESUS SOTO
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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) ) Appellee, ) ) ) ) v. ) ) ) ) JESUS HUMBERTO SOTO, ) ) ) Appellant. ) _________________________________ ) Arizona Supreme Court No. CR-10-0089-PR Court of Appeals Division Two Nos. 2 CA-CR 08-0405 2 CA-CR 08-0406 (Consolidated) Pima County Superior Court Nos. CR20031147 CR20040081 O P I N I O N Appeal from the Superior Court in Pima County The Honorable John S. Leonardo, Judge ________________________________________________________________ Opinion of the Court of Appeals, Division Two 223 Ariz. 407, 224 P.3d 223 (2010) OPINION VACATED; APPEALS REINSTATED; REMANDED ________________________________________________________________ TERRY GODDARD, ARIZONA ATTORNEY GENERAL By Kent E. Cattani, Chief Counsel, Capital Litigation Section Laura Chiasson, Assistant Attorney General Attorneys for State of Arizona Phoenix Tucson ISABEL G. GARCIA, PIMA COUNTY LEGAL DEFENDER Tucson By Robb P. Holmes, Assistant Legal Defender Attorneys for Jesus Humberto Soto ________________________________________________________________ B E R C H, Chief Justice ¶1 We granted review in this case to determine the constitutionality of Arizona Revised Statutes ( A.R.S. ) section 13-4033(C) (2010). Since we granted review, the State has conceded that the statute does not apply to the Defendant s cases. We therefore vacate the opinion of the court of appeals. ¶2 Soto was convicted in two cases in 2004. He absconded before sentencing and was not returned to custody until October 2008. He was subsequently sentenced on December 1, 2008. On September 26, 2008, just before Soto s return to custody, A.R.S. § 13-4033(C) became effective. 25, § 1 (2d Reg. Sess.). from appealing a See 2008 Ariz. Sess. Laws, ch. That subsection prohibits a defendant final judgment of conviction if the defendant s absence prevents sentencing from occurring within ninety days after conviction. A.R.S. § 13-4033(C). ¶3 his convictions. the court Soto dismissing reinstated appealed the appeals, the unconstitutionally appeals, and infringed Soto s of After appeals reconsidered, that § 13-4033(C) held right to Article 2, § 24 of the Arizona Constitution. review. their initially an appeal under The State sought We granted review and asked the parties to address in supplemental briefs whether § 13-4033 applies retroactively to defendants convicted before its effective date. ¶4 In its supplemental briefing, the State conceded for the first time that § 13-4033 does not apply to Soto, correctly reasoning that the statute does not apply to persons who were returned to custody within ninety days of September 26, 2008. - 2 - ¶5 4033(C) Based does on not constitutional or the apply State s to concession Soto, retroactivity we that decline issues this A.R.S. § 13- rule on any to case might have presented. See Sch. Dist. No. 26 of Yuma Cnty. v. Strohm, 106 Ariz. 9, 7, 469 P.2d 826, 828 (1970) (noting that Constitutional issues will not be determined unless squarely presented in a justiciable controversy, or unless a decision is absolutely necessary in order to determine the merits of the suit (citations omitted)). We therefore affirm the denial of the State s motion to dismiss the appeals, vacate the opinion of the court of appeals, and remand this case to the court of appeals for further proceedings. __________________________________ Rebecca White Berch, Chief Justice CONCURRING: _____________________________________ Andrew D. Hurwitz, Vice Chief Justice _____________________________________ W. Scott Bales, Justice _____________________________________ A. John Pelander, Justice _____________________________________ Michael D. Ryan, Justice (Retired)* - 3 - *Pursuant to Article 6, Section 3 of the Arizona Constitution, the Honorable Michael D. Ryan, Retired Justice of the Supreme Court of Arizona, was designated to sit on this matter. - 4 -
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