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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) Appellee, ) ) ) v. ) ) ) CHRISTOPHER MICHAEL REGENOLD, ) ) ) Appellant. ) _________________________________ ) Arizona Supreme Court No. CR-10-0154-PR Court of Appeals Division One No. 1 CA-CR 08-0651 Maricopa County Superior Court No. CR2005-135187-001 DT O P I N I O N Appeal from the Superior Court in Maricopa County The Honorable Jaime B. Holguin, Commissioner ________________________________________________________________ Memorandum Decision of the Court of Appeals, Division One Filed Mar. 18, 2010 REVERSED AND REMANDED ________________________________________________________________ THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix By Kent E. Cattani, Chief Counsel, Capital Litigation Section Aaron J. Moskowitz, Assistant Attorney General Diane Leigh Hunt, Assistant Attorney General Tucson Attorneys for State of Arizona JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER By Tennie B. Martin, Deputy Public Defender Colin F. Stearns, Deputy Public Defender Phoenix And MARICOPA COUNTY OFFICE OF THE LEGAL ADVOCATE Phoenix By Consuelo M. Ohanesian, Deputy Legal Advocate Attorneys for Christopher Michael Regenold ________________________________________________________________ B E R C H, Chief Justice ¶1 A defendant in a noncapital case may not appeal from a judgment or sentence that is entered pursuant to agreement or an admission to a probation violation. Stat. ( A.R.S. ) § 13 4033(B) (2010). a plea Ariz. Rev. We have been asked to decide whether a defendant who pleads guilty but later contests an alleged sentence. probation violation may appeal the resulting We hold that A.R.S § 13 4033(B) does not limit the right of appeal in such circumstances. I. ¶2 FACTS AND PROCEDURAL HISTORY Christopher Michael Regenold was indicted for one count of luring a minor for sexual exploitation. He accepted a plea agreement that provided a sentencing range of five to fifteen years. The judge suspended imposition of the sentence and placed Regenold on lifetime probation. ¶3 More than a year later, the State petitioned to revoke Regenold s probation. After a contested hearing, the judge revoked probation and sentenced Regenold to six and one-half years in prison. Regenold appealed. Citing A.R.S. § 13- 4033(B), the court of appeals dismissed the appeal for lack of jurisdiction, finding that Regenold s sentence had been imposed pursuant to his plea agreement and, therefore, rather than appealing, he should have filed a petition for post-conviction relief pursuant to Rule 32. State v. Regenold, 1 CA CR 08 0651, - 2 - 2010 WL 987063 (Ariz. App. Mar. 18, 2010). ¶4 We granted review of Regenold s petition for review because the court of appeals decision in this case conflicts with the opinion of the court of appeals in State v. Ponsart, 224 Ariz. 518, 233 P.3d 631 (App. 2010), and the issue presented is of statewide importance. We have jurisdiction under Article 6, section 5, clause 3 of the Arizona Constitution. II. ¶5 DISCUSSION Arizona Rule of Criminal Procedure 32.1 provides the review process for defendants who plead guilty. 184 Ariz. 456, 458, 910 P.2d 1, 3 (1996). State v. Smith, It authorizes review through an of-right post-conviction relief proceeding for those defendants who admitted a probation violation, or whose probation was automatically violated based upon a plea of guilty or no contest. Ariz. R. Crim. P. 32.1. Those found guilty after trial retain the right to appeal. ¶6 Arizona precludes those Revised who Statutes enter plea § 13 4033(B) agreements or probation violation from filing a direct appeal. similarly admit to a It provides that [i]n noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to agreement or an admission to a probation violation. must resolve whether a defendant who pleads guilty a plea Id. We to the underlying crime, but later has probation revoked following a - 3 - contested probation revocation hearing, may appeal the resulting sentence or must instead file a Rule 32 petition. ¶7 Regenold argues that because § 13-4033(B) precludes an appeal only from an admission to a probation violation, a defendant may appeal from a judgment or sentence entered after the defendant violation. put on contests or refuses to admit to a probation The State responds that a pleading defendant who is probation, violation and later is unsuccessfully thereafter sentenced, contests a receives probation punishment pursuant to a plea agreement for purposes of § 13-4033(B) and thus may not appeal. It also argues that Regenold waived his right to appeal when he entered the plea agreement. For these reasons, the State maintains, Regenold cannot pursue a direct appeal, but must instead seek review under Rule 32. We disagree with the State s contentions. ¶8 A contested defendant probation who receives violation punishment proceeding does following not receive a a sentence that is entered pursuant to a plea agreement as that phrase is used in § 13-4033(B). who is sentenced to prison or Rather, a pleading defendant jail or placed on probation receives punishment pursuant to [the] plea agreement when the probation or other sanction for the underlying crime is imposed. At that time, the defendant learns his punishment, which may include a combination of prison or jail time and restitution, - 4 - along with any probationary period and terms. If the defendant fulfills those terms, this is the only sentence he will ever receive for the underlying crime. If the defendant fails to comply with the terms of probation, however, a different and more severe consequence may result. Any punishment imposed after a probation revocation hearing is a consequence that would not exist Therefore, but for the although the defendant s range of violation punishment of for probation. a probation violation may be constrained by a plea agreement, the sentence imposed after a contested probation revocation is not entered pursuant to [the] plea agreement for purposes of § 13 4033(B). ¶9 The State also argues that Regenold waived his right to appeal by signing a plea agreement that provided, By entering this agreement, the Defendant further waives and gives up the right to appeal. Although we agree that Regenold waived his right to direct appeal by pleading guilty, instead implicitly consenting to review by petition for post-conviction relief, see Smith, 184 Ariz. at 458, 910 P.2d at 3, he did not waive his right to appeal later rulings in the case. ¶10 We find support for our conclusion in the language of Rule 32.1, which permits a defendant who admit[s] a probation violation, or whose probation was automatically violated based upon a plea of guilty or no contest to file a petition for post-conviction relief. As noted, Regenold did not admit that - 5 - he violated probation; he contested that he had done so. In short, Regenold s situation is not squarely covered by language of Rule 32.1 that would require him to seek review by filing a petition for post-conviction relief. On the other hand, he is not prohibited from appealing the revocation of probation by the language of A.R.S. § 13-4033(B) because he did not admit to a probation violation. ¶11 A contrary construction of § 13 4033(B) may lead to multiple hearings involving the same facts. Ariz. at precluding 520-21 a ¶ 8, pleading 233 P.3d defendant at See Ponsart, 224 633-34. from For appealing example, a sentence imposed following a contested probation violation hearing would require the defendant to appeal from the finding of a probation violation, but to file a separate Rule 32 petition for postconviction relief to contest the resulting sentence. Requiring parallel proceedings contravenes § See id. 13-4033(B) s purpose of reducing the burden on the appellate courts. See Hearing on H.B. 2481 Before the H. Comm. on Judiciary, 40th Leg., 2d Reg. Sess. (Feb. 24, 1992); accord Arizona State Senate, Fact Sheet for H.B. 2481, 40th Leg., 2d Reg. Sess. (Mar. 19, 1992). Permitting the defendant to combine the finding of a violation and the sentence imposed following a finding of a probation violation in one appeal better serves the legislative intent. - 6 - III. ¶12 CONCLUSION Because Regenold appealed a sentence entered after a contested hearing on a probation violation, § 13-4033(B) does not bar his appeal. We reverse the decision of the court of appeals and remand to that court for further proceedings. __________________________________ Rebecca White Berch, Chief Justice CONCURRING: _____________________________________ Andrew D. Hurwitz, Vice Chief Justice _____________________________________ W. Scott Bales, Justice _____________________________________ Michael D. Ryan, Justice (Retired) P E L A N D E R, Justice, dissenting ¶13 I respectfully dissent, but not because the majority does violence to the wording of A.R.S. § 13-4033. majority s interpretation of that statute is In fact, the plausible and perhaps preferable for the policy reasons set forth in ¶ 11, supra. In my view, however, the more reasonable and logical interpretation of § 13-4033(B) precludes Regenold s appeal because, at bottom, he is appealing from a sentence entered - 7 - pursuant to a plea agreement. on appeal, Regenold prescribed directly sentencing range Indeed, in the only issue raised challenges under his which sentenced him, as it was required to do. plea the agreement s trial court Therefore, because the appeal is prohibited under § 13-4033(B), the proper avenue of review is by petition for post-conviction relief under Arizona Rule of Criminal Procedure 32. ¶14 The majority bases its contrary conclusion on one of the two exceptions set forth in § 13-4033(B) an admission to a probation violation. But subsection (B) is framed in the disjunctive and clearly precludes defendants in noncapital cases from appealing from a judgment or sentence that is entered pursuant to a plea agreement. neither qualified defendant is nor initially On its face, that prohibition is limited (or to situations contemporaneously) in which sentenced the to a prison term, rather than initially being placed on probation, after the trial court accepts the plea; nor is the prohibition tied to whether or not the defendant ultimately admits to a probation violation, a situation in which appellate jurisdiction also is foreclosed under the second, independent clause of subsection (B). ¶15 4033(B) Nonetheless, I acknowledge that the language of § 13has no plain meaning and, on its face, does not clearly answer the appellate jurisdiction issue presented here. - 8 - But when meaning statutory or yield established, words an widely do not obvious result, themselves to we may refer dictionary for the respected meaning of the words. lend a plain to an ordinary State v. Wise, 137 Ariz. 468, 470 n.3, 671 P.2d 909, 911 n.3 (1983); see also A.R.S. § 1-213 ( Words and phrases shall be construed according to the common and approved use of the language. ). ¶16 Black s Law Dictionary defines pursuant to, the key phrase in this case, as [i]n compliance with; in accordance with; under[;] Dictionary 1356 . . (9th . [a]s ed. authorized 2009). After by. Black s accepting Law Regenold s plea, the trial court was bound by its terms, including the sentencing range Regenold now claims is illegal. See Mejia v. Irwin, 195 Ariz. 270, 273 ¶ 17, 987 P.2d 756, 759 (App. 1999) ( Once the State made the agreement with Mejia and the court accepted and acted upon it, all parties were bound by it. ); State v. Druke, 128 Ariz. 604, 605, 627 P.2d 1102, 1103 (App. 1981) ( [I]t is the duty of the court to carry out the terms of the [plea] agreement. ). Because the plea wholly controlled the court s sentence, the sentence was a direct (albeit deferred) consequence of the plea agreement. See State v. Muldoon, 159 Ariz. 295, 298, 767 P.2d 16, 19 (1988) (stating probation is a court order suspend[ing] or defer[ring] the imposition of sentence to some future date in order to give a defendant a - 9 - period of time in which to perform certain thereby avoid imposition of a sentence ). conditions and Therefore, Regenold s appeal effectively challenges a term in his plea agreement and, as such, is disallowed by § 13-4033(B) and Rule 17.1(e) (providing that defendants in noncapital cases who plead guilty waive right to direct appeal and may seek review only via postconviction proceedings under Rule 32). 189 Ariz. 58, 59, 61, 938 P.2d Cf. State v. Delgarito, 107, 108, 110 (App. 1997) (allowing appeal from trial court s designation of offense as felony, when appeal did not effectively challenge[] the plea agreement or sentence, and defendant had no other means of appellate review ). ¶17 I find the majority s analysis unpersuasive because it incorrectly assumes that Regenold s ultimate sentence arose out of the contested probation violation hearing rather than the plea agreement. Regardless of when the trial court imposes sentence pleading on consequence probation a of defendant, sentencing violation, the and resulted inquiry should even though only from be whether the Regenold s the plea agreement controlled the court s disposition of the matter. The majority seems to acknowledge that it did. ¶18 The majority s reasoning also See ¶ 8, supra. suggests that § 13- 4033(B) applies only to sentences entered immediately following a trial court s acceptance of a - 10 - plea agreement and not to sentences imposed sometime later, after intervening events have occurred. But that view effectively inserts into § 13-4033(B) the immediately word applying the statute s before the prohibition word only immediately pursuant to a plea agreement. entered, to thereby sentences entered The statute contains no such requirement and, absent an absurdity or impossibility, this Court is not free to modify the statute in that way. Hernandez v. Frohmiller, 68 Ariz. 242, 250, 204 See P.2d 854, 859 (1949). ¶19 Moreover, any temporal limit on § 13-4033(B) is inconsistent with multiple cases that conclude a sentence was pursuant to a plea agreement, precluding direct appeal, despite the presence of intervening events. In State v. Celaya, 213 Ariz. 282, 282-83 ¶¶ 1-2, 7, 141 P.3d 762, 762-63 (App. 2006), and State v. Rodriguez-Gonzales, 208 Ariz. 198, 199 ¶ 1, 92 P.3d 424, 425 (App. 2004), the intervening event was invalidation of the original sentence. In State v. Jimenez, 188 Ariz. 342, 342- 43, 935 P.2d 920, 920-21 (App. 1996), the intervening event was the defendant s motion to vacate the plea agreement s probation conditions. was by The defendant s only relief in each of those cases post-conviction relief under Rule 32.1. As those authorities indicate, the inquiry relevant to § 13-4033(B) is whether, in the end, an appeal essentially challenges the plea agreement. If so, as here, a case s procedural history, or the - 11 - specific timing of sentencing pursuant to the plea agreement, does not render appealable an otherwise unappealable sentence. ¶20 Also unpersuasive is the majority s reference to Rule 32.1 in support of its conclusion. See ¶ 10, supra. Appellate jurisdiction is controlled and limited by statute, not rule. See Campbell 910 (1979). v. Arnold, 121 Ariz. 370, 371, 590 P.2d 909, To the extent it is pertinent, however, Rule 32.1 provides that [a]ny person who pled guilty or no contest . . . shall have the right to file a post-conviction relief proceeding under Rule 32, and in that of-right proceeding, the defendant may assert, as Regenold does, that [t]he sentence imposed exceeded the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law[.] R. Crim. P. 32.1(c). Ariz. It is undisputed here that Regenold pled guilty, Ariz. R. Crim. P. 32.1, and that fact is unaltered by his having filed later against contested him. Thus, the probation-revocation having pled guilty, petition Regenold is squarely within the category of defendants this Court, by rule, has diverted to the Rule 32 path for post-conviction relief and appellate review. ¶21 The majority s concern about multiplicative proceedings, though valid in the abstract, is unwarranted here because Regenold does not challenge the revocation of probation. More importantly, the hypothetical - 12 - prospect of multiple proceedings does not allow us to override § 13-4033(B). Because § 13-4033(B) is a jurisdictional statute, the court of appeals has no jurisdiction over any claims that fall within the statute s prohibitive scope, no matter how or when they arise and even if the defendant could raise other claims on appeal. Any multiplication of proceedings created by § 13-4033(B) is simply a consequence of the legislature s decision to divert appeals from pleading defendants to the Rule 32 process, a phenomenon that regularly occurs in reverse when non-pleading defendants who appeal are relegated to Rule 32 post-conviction proceedings for any claims of ineffective assistance of counsel. See State v. Spreitz, 202 Ariz. 1, 3 ¶ 9, 39 P.3d 525, 527 (2002). ¶22 For these reasons, the court of appeals lacks subject matter would jurisdiction affirm that over Regenold s court s appeal memorandum and, decision therefore, dismissing I the appeal. __________________________________ A. John Pelander, Justice - 13 -