FRANK HOFFMAN v HON. CHANDLER/STATE

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SUPREME COURT OF ARIZONA En Banc FRANK HOFFMAN, ) ) Petitioner, ) ) v. ) ) THE HONORABLE TERRY L. CHANDLER, ) JUDGE OF THE SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of Pima, ) ) Respondent Judge, ) ) THE STATE OF ARIZONA; TUCSON CITY ) PROSECUTOR'S OFFICE, ) ) Real Parties in Interest. ) __________________________________) Arizona Supreme Court No. CV-12-0149-PR Court of Appeals Division Two No. 2 CA-SA 12-0010 Pima County Superior Court No. CR20113674 O P I N I O N Appeal from the Superior Court in Pima County The Honorable Terry L. Chandler, Judge AFFIRMED ________________________________________________________________ Order of the Court of Appeals Division Two Filed April 3, 2012 ________________________________________________________________ CHARLES P. DAVIES, TUCSON PUBLIC DEFENDER Tucson By Kristina Julie Bohn-Elia, Deputy Public Defender Attorney for Frank Hoffman MICHAEL G. RANKIN, TUCSON CITY ATTORNEY Tucson By Baird S. Greene, Deputy City Attorney William F. Mills, Principal Assistant Prosecuting City Attorney Attorneys for State of Arizona and Tucson City Prosecutors Office ________________________________________________________________ T I M M E R, Justice ¶1 Subsection defendant to (A)(3) appeal a of A.R.S. § post-judgment 13-4033 order authorizes that a affects substantial rights, while subsection (B) prohibits a defendant in noncapital cases from directly appealing sentence entered pursuant to a plea agreement. any judgment or We today hold that subsection (B) bars a defendant from directly appealing a contested post-judgment restitution order entered pursuant to a plea agreement that contemplated payment of restitution up to a capped amount. Any appellate review must be obtained through post-conviction relief proceedings. I. ¶2 The State charged Frank Hoffman with several offenses stemming from his involvement in a traffic accident that injured another person. Pursuant to a plea agreement, Hoffman pleaded no contest to driving under the influence ( DUI ) and, among other things, agreed to pay restitution up to $53,653.45. The Tucson City Court adjudicated Hoffman guilty, imposed a term of probation, and ordered him to pay fines, fees, and restitution in an amount to be determined 2 later, but not to exceed $53,653.45. ¶3 Approximately contested three months restitution hearing and later, entered Hoffman to pay $40,933.45 in restitution. the an court order held a requiring Hoffman appealed to the superior court, which subsequently dismissed the appeal on the State s motion. Relying on A.R.S. § 13-4033(B) and Rule 17.1(e) of the Arizona Rules of Criminal Procedure, the court ruled that Hoffman waived his right to directly appeal the restitution order by entering into the plea agreement and could challenge the order only through Rule 32 post-conviction relief proceedings. Hoffman sought special action relief from the court of appeals, which declined jurisdiction. ¶4 a We granted review to clarify the scope of § 13-4033(B) purely legal issue of statewide importance. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24. II. ¶5 The Arizona Constitution guarantees defendants criminal prosecutions the right to appeal in all cases. Const. art. 2, § 24. appeal a agreement. judgment or in Ariz. Before 1992, a defendant could directly sentence entered A.R.S. § 13-4033 (1989). pursuant to a plea But the increasing number of these appeals was straining our appellate justice system. Ariz. State S., Fact Sheet for H.B. 2481, 40th Leg., 2d Reg. 3 Sess. (Mar. 19, amended § 13-4033 1992). and, (B), which provides: Consequently, among other the changes, legislature added subsection In noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or an admission to a probation violation. Ariz. Sess. Laws 779. what is appeal now from subsection [a]n The legislature, however, did not change (A)(3), order which permits after made substantial rights of the party. ¶6 1992 a judgment defendant affecting to the § 13-4033(A)(3). After the legislature added subsection (B), this Court amended Rule 17.1(e) to provide that a defendant in a noncapital case who pleads guilty or no contest waives the right to have the appellate courts review the proceedings by way of direct appeal, and may seek review only by filing a petition for postconviction relief pursuant to Rule 32 and, if denied, a petition for review. Order Amending Rule Criminal Procedure (Apr. 7, 1992). petition for constitutionally post-conviction guaranteed into a plea agreement. appeal 17.1, Arizona Rules of We have since held that a relief after is a the only defendant enters State v. Smith, 184 Ariz. 456, 458, 910 P.2d 1, 3 (1996); see also State v. Regenold, 226 Ariz. 378, 379 ¶ 5, 249 P.3d 337, 338 (2011) ( [Rule] 32.1 provides the review process for defendants who plead guilty. ). ¶7 Hoffman argues § 13-4033(A)(3) authorizes his appeal 4 from the restitution order as a post-judgment order affecting his substantial rights. adjudicating Hoffman The city court entered a judgment by guilty of DUI. See Ariz. R. Crim. P. 26.1(a) (defining judgment as including a court s adjudication of guilt upon a defendant s plea). Read in isolation, § 13- 4033(A)(3) would authorize Hoffman to directly appeal the postjudgment restitution order substantial rights. and its subsections as it indisputably affected his But we must strive to construe a statute as a consistent and harmonious whole. State v. Wagstaff, 164 Ariz. 485, 491, 794 P.2d 118, 124 (1990). Thus, the issue is whether the restitution order is part of Hoffman s sentence and thus not appealable under § 13-4033(B) ¶8 We interpret § 13-4033(B) to effect the legislature s intent, looking first to the language of the provision. v. Bobby (2005). M., 210 Ariz. 279, If the terms are 283 ¶ 14, ambiguous, principles of statutory interpretation. of statutory interpretation de novo. 110 P.3d we employ Id. Kent K. 1013, 1017 secondary We review issues State v. Arellano, 213 Ariz. 474, 477 ¶ 9, 143 P.3d 1015, 1018 (2006). ¶9 The language of subsection (B) does not reflect whether a restitution order contemplated by a plea agreement but entered after entry of judgment is part of a sentence, and the legislature has not defined the term in A.R.S. §§ 13-105, -4033, or elsewhere. Several reasons, however, convince us that such 5 an order is part of a sentence for purposes of subsection § 13-4033(B). First, considering a post-judgment restitution order as part of a sentence furthers the legislative goal of eliminating direct appeals involving plea agreements. A.R.S. § 13-104 (providing statutes must be construed . . . to . . . effect the objects of the law ); Yslava v. Hughes Aircraft Co., 188 Ariz. 380, 385, 936 P.2d 1274, 1279 (1997) (stating courts should interpret unclear statutes to conform with general goals expressed in the amendment to § agreements legislative 13-4033, commonly history ). defendants challenged who restitution Before entered orders the 1992 into plea on appeal. See, e.g., State v. Nosie, 150 Ariz. 498, 499, 724 P.2d 584, 585 (App. 1986); State v. O Connor, 146 Ariz. 16, 17, 703 P.2d 563, 564 (App. 1985). Although the legislature was presumably aware of such appeals when it sought to reduce the burden on appellate courts, cf. Taylor v. Travelers Indem. Co. of Am., 198 Ariz. 310, 317 ¶ 21, 9 P.3d 1049, 1056 (2000) (assuming legislature s knowledge of case law and insurance coverage needs), it did not expressly exclude restitution orders from the ambit of § 134033(B) ¶10 Second, excluding a post-judgment restitution order entered pursuant to a plea agreement from the reach of § 134033(B) would create a hybrid system of appellate review. Under Hoffman s view of § 13-4033(B), a defendant who pleads guilty 6 could seek appellate restitution order on review direct of a appeal contested but would post-judgment have to pursue review of remaining issues through Rule 32 proceedings. dual-track review would unnecessarily burden the This appellate justice system and could lead to inconsistent results. State v. Estrada, 201 Ariz. 247, 250-51 ¶ 16, 34 P.3d 356, 359-60 (2001) (stating court interprets and applies statute in a way that will avoid an untenable or irrational result ). Ovante, 231 Ariz. 180, 184 ¶ 10, 291 P.3d Cf. State v. 974, 978 (2013) (construing Rule 17.1(e) so as to avoid bifurcated appeals in capital cases). ¶11 Third, the legislature mandates crime victim has suffered economic loss. restitution when a A.R.S. § 13-603(C). Because this mandatory provision applies when a defendant enters into a plea agreement, and restitution is typically imposed at the time of sentencing, State v. Holguin, 177 Ariz. 589, 591, 870 P.2d 407, 409 (App. 1993), the term sentence in § 134033(B) is most reasonably construed to include a post-judgment restitution order. ¶12 Hoffman points out that after the 1992 amendment to § 13-4033, appellate jurisdiction defendants over who courts direct had have appeals entered plea of continued to post-judgment agreements. But assume orders by with two exceptions, see infra ¶¶ 13-14, none of the cases Hoffman cites 7 concerned a consequence challenge of a plea to an order agreement s entered terms. See as a direct Regenold, 226 Ariz. at 380 ¶ 12, 249 P.3d at 339 (reviewing sentence imposed as consequence of a contested probation violation); State v. Ponsart, 224 Ariz. 518, 521-22 ¶¶ 2-12, 233 P.3d 631, 634-35 (App. 2010) (same); State v. Delgarito, 189 Ariz. 58, 59, 938 P.2d 107, 108 designating (App. 1997) an offense as (involving a felony a challenged although offense undesignated at time of guilty plea and disposition). order left Moreover, since 1992, appellate courts have routinely dismissed appeals of post-judgment orders that challenged plea agreement terms. See, e.g., Fisher v. Kaufman, 201 Ariz. 500, 501 ¶¶ 5-6, 38 P.3d 38, 39 (App. 2001) (noting that § 13-4033(B) precludes direct appeal of post-judgment order requiring defendant to continue sex offender registration because registration was contemplated in plea agreement); State v. Jimenez, 188 Ariz. 342, 344-45, 935 P.2d 920, 922-23 (App. 1996) (stating that § 13-4033(B) prohibited pleading defendant from directly appealing denial of motion to modify conditions of probation imposed at sentencing). ¶13 Hoffman cites two cases involving challenges to orders entered as a direct consequence of plea agreements. In State v. Foy, 176 Ariz. 166, 167, 859 P.2d 789, 790 (App. 1993), the court of appeals reviewed a post-judgment entered pursuant to a plea agreement. 8 restitution order But because the court assumed jurisdiction without commenting on the impact of § 134033(B), that decision is not persuasive with regard to the statute s meaning. ¶14 In State v. Unkefer, the court of appeals addressed the propriety of an order authorizing the state and a victim to record and enforce a restitution order twenty years after the trial court had ordered the defendant to pay the restitution amount pursuant to a plea agreement s terms. ¶¶ 3-5, 239 P.3d 749, 751 (App. 2010). explanation or citation to § In a footnote, without 13-4033(B), jurisdiction pursuant to § 13-4033(A)(3). 239 P.3d at 752 n.4. 225 Ariz. 430, 432 the court assumed Id. at 433 ¶ 6 n.4, As with Foy, because Unkefer did not consider § 13-4033(B), it does not alter our interpretation of that provision. To the extent Foy and Unkefer conflict with our interpretation of § 13-4033 in circumstances like the one before us, we disapprove those cases. ¶15 Hoffman additionally argues that because the state may appeal a post-judgment substantial 4032(4), or would be it prohibiting disagree. rights restitution a those of absurd defendant from to a order that victim, see interpret § appealing the affects A.R.S. § 13-4033(B) same order. its 13as We Because the state cannot file a Rule 32 petition to obtain appellate review, it is not inconsistent in this context to authorize direct appeal for 9 the state but deny it to defendants. Both parties are given a single route for appellate review. ¶16 Hoffman § 13-4033(A)(3) restitution further to order argues authorize entered a it direct after 4033(B) eliminate that right. would be meaningless appeal judgment of a to have only for contested Again, we disagree. § 13- Subsection (A)(3) applies generally to all post-judgment orders affecting a defendant s exception substantial when agreements. such rights; orders subsection are entered (B) provides pursuant to an plea See State v. Baca, 187 Ariz. 61, 66, 926 P.2d 528, 533 (App. 1996) (holding that § 13-4033(B) impliedly amended now-renumbered § subsection applies, (B) 13-4033(A)(3)). In subsection (A) other cannot words, be when invoked to that the authorize a direct appeal. ¶17 We reject Hoffman s related contention restitution order in this case was not entered pursuant to a plea agreement because he contested the amount. Although restitution was not precisely calculated in the plea agreement, Hoffman agreed to pay restitution not to exceed a capped amount and explicitly waived his right to pursue a direct appeal. State (1987) v. Phillips, (holding consequences of 152 that an a Ariz. 533, defendant agreement to 535, 733 thoroughly make P.2d understands restitution agreement caps the amount that may be ordered). 10 1116, when See 1118 the plea Even though Hoffman contested the amount of restitution eventually entered, because this amount did not exceed the cap, it was entered as a direct consequence therefore applied. of the plea agreement, and § 13-4033(B) Cf. Regenold, 226 Ariz. at 379 ¶ 8, 249 P.3d at 338 (noting that when a plea agreement states a range of sentences, the pleading defendant receives sentence pursuant to the agreement when the sentence is ultimately imposed). ¶18 Finally, Hoffman argues that the grounds for relief under Rule 32.1 might not encompass a challenge to a post- judgment restitution order based on trial error that did not deprive the defendant of constitutional rights. Therefore, he contends, the legislature must have intended to permit direct appeal of such orders pursuant to § 13-4033(A). argument because its premise is flawed. We reject this As the State concedes, Hoffman is entitled to challenge the restitution order through Rule 32 proceedings because he has a constitutional right to appellate review. at 458, 910 P.2d Ariz. Const. art. 2, § 24; Smith, 184 Ariz. at 3 (observing that the constitutional guarantee of appellate review in all cases is effectuated for pleading defendants through Rule 32). will broadly interpret Rule 32 to We trust that courts preserve the rights of pleading defendants to appellate review. III. ¶19 For the foregoing reasons, we hold that A.R.S. § 1311 4033(B) bars a defendant from directly appealing a contested post-judgment restitution order entered pursuant to a plea agreement that contemplated payment of restitution and capped the amount. vindicate the In such situations, constitutionally a pleading guaranteed defendant right of must appellate review through Rule 32 post-conviction relief proceedings. We therefore affirm the superior court s order dismissing Hoffman s appeal. _______________________________________ Ann A. Scott Timmer, Justice CONCURRING: _____________________________________ Rebecca White Berch, Chief Justice _____________________________________ Scott Bales, Vice Chief Justice _____________________________________ A. John Pelander, Justice _____________________________________ Robert M. Brutinel, Justice 12

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