State of Arizona v. Armando D. Rodriguez-Gonzales Hieber ( 2004 )

IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2002-0285
Appellee, ) 2 CA-CR 2002-0431
) (Consolidated)
v. ) DEPARTMENT B
)
ARMANDO D. RODRIGUEZ- ) O P I N IO N
GONZALES; and WILLIAM RALPH )
HIEBER )
)
Appellants. )
)
APPEALS FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause Nos. CR-65642 and CR-20000093
Honorable Deborah Bernini, Judge
Honorable H oward Fell, Judg e Pro Tempo re
DISMISSED
Terry Goddard, Arizona Attorney General
By Randall M. Howe and Diane Leigh Hunt Tucson
Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Joy Athena Tucson
Attorneys fo r Appellan ts
E S P I N O S A, Chief Judge.
¶1 In consolidated direct appeals, appellants Armando Rodriguez-Gonzalez and
William Hieber challenge their sentences. Both had originally been sentenced following guilty
pleas but had been granted new sentencing hearings through successful post-conviction
proceedings pursuant to Rule 32, Ariz. R . Crim. P., 17 A .R.S. Appellants argue tha t this court
has subject matter jurisdiction and that they are not required to engage in further Rule 32
proceedings to challenge their new sentences. For the reasons set forth below, we disagree
and dismiss the appeals.
Facts and Procedural Background
¶2 Followin g a mistrial on m ultiple narcotics charges, Rodriguez-Gonzalez pled
guilty to possessing heroin for sale, a class two felony, with one prior conviction. The trial
court sentenced him to a partia lly aggravated prison term of twelve years enhanced by his prior
federal conviction for illegal reentry. In his Rule 32 petition, R odriguez-G onzalez argued his
sentence was unlawfully enhanced because there is no Arizona offense equivalent to illegal
reentry. See A.R.S. § 13-604(N). The trial court agreed and granted Rodriguez-Gonzalez a
new sentencing hearing. He wa s subsequ ently sentence d to a presu mptive, five-year term to
be served consecutively to the term imposed in his federal case, and filed a timely notice of
appeal.
¶3 Hieber had pled guilty to aggravated assault, endangerment, and misdemeanor
driving while under the influence of an intoxicant. The trial court sentenced him to concurrent
prison terms, the longest of w hich was an aggrav ated, five-year term on the a ggravated assault
charge. This court granted Hieber partial relief in his petition for review of the trial court’s
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summary denial of his Rule 32 petition, finding he had raised colorable claims of wheth er his
aggravated assault sentence had been unlawfully aggravated by charges that were then pending
and whether the evidence supported the amount of restitution imposed. State v. Hieber, No. 2
CA-CR 2001-0408-PR (memorandum de cision filed June 4, 2002). The trial court
subseque ntly resentenced Hieber to a presum ptive 3.5-yea r prison term fo r aggravate d assault.
This appeal followed.
Subject Matter Jurisdiction
¶4 Appellan ts acknowledge that defendants who plead guilty are not entitled to
direct review in this court, see A.R.S. § 13-4033(B); Ariz. R. Crim. P. 17.1(e), 16A A.R.S., but
argue that direct appeal is now ap propriate because they are challenging sentences imposed
during new sentencing hearings. A ppellants contend they have rights of direct review under
§ 13-4033(A)(2 ) or (A)(3). Under those pro visions, a defendant ma y take an appeal from “[ a]n
order denying a motion for a new trial or from an order made after judgment affecting the
substantial rights of the party,” § 13-4033(A)(2), or from “[a] sentence o n the grounds that it
is illegal or excessive.” § 13-403 3(A)(3).
¶5 As the state points out, the provisions of § 13-4033(A)(2) and (3) are limited
by subsection B to certain defendants. That subsection states, “[i]n noncapital cases a
defendant may not appeal from a judgment or sentence that is entered pursuant to a plea
agreement or an adm ission to a pro bation violation.” Accordingly, any right of appeal
appellants have under subsection (A)(2) or (A)(3) “is restricted by subsection (B), which
precludes a direct appeal from a judgment or sentence entered pursuant to a plea agreement.”
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State v. Jimenez, 188 Ariz. 342, 34 4, 935 P.2d 920, 922 (Ap p. 1996); see also Ariz. R.
Crim. P. 17.1(e) (“By pleading guilty . . . in a nonc apital case, a d efendant w aives the righ t to
have the appellate courts review the proceedings by way of direct appeal, and may seek review
only by filing a petition for post-conviction relief pursuant to Rule 32 and, if denied, a petition
for review.”). Here, the new sentencing ord ers merely plac ed appellan ts in the position in
which they would have b een had they been se ntenced correctly in the first place. See State v.
Thomas, 142 Ariz . 201, 204, 688 P.2d 1093, 1096 (App. 1984) (after sentences vacated by
appellate court and case remanded, trial court “was not modifying previously imposed
sentences . . . but rather was sentencing anew”); State v. Py eatt, 135 Ariz. 141, 143, 659 P.2d
1286, 1288 (A pp. 1982 ) (“An illegal sentence is no sentence at all.”). Consequently, the
appellants are seeking direc t review of a sentence e ntered purs uant to a plea agreeme nt,
something this court has no jurisdictio n to do. § 1 3-4033(B ); Jimenez.
¶6 In seeking to avoid this result, appellants rely on Jimenez, a Division One case
in which a defen dant ha d pled g uilty, was placed on probation, and then appealed from the trial
court’s denial of a motion to modify the conditions of probation. The court dismissed the
appeal for want o f subject ma tter jurisdiction, concludin g that the court’s denial of the
defendant’s motion to modify the terms o f his probatio n was no t an order affecting his
substantial rights. The court then stated, “If the trial court’s order had actually changed or
modified the judgment or sentence originally imposed, we assume defendant would have had
the right of direct appeal.” Jimenez, 188 Ariz. at 345, 935 P.2d at 923. But here, the
resentencing orders were not changes or modifications of the sentences originally imposed,
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but new orders, replacing the original unlawful orders as if they had not existed. See Thomas;
Pyeatt.
¶7 We conclude we do not have appellate jurisdiction of these consolidated appeals;
they are therefore dismissed.
PHILIP G. ESPINOSA, Chief Judge
CONCURRING:
JOHN PELANDER, Presiding Judge
PETER J. ECKERSTROM, Judge
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