State v. Smith

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ALVIN REX SMITH, Appellant.

No. 1 CA-CR 18-0270
FILED 6-20-2019

Appeal from the Superior Court in Maricopa County
No. CR2015-147024-001
The Honorable Michael D. Gordon, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Bain & Lauritano, PLC, Glendale
By Sheri M. Lauritano
Counsel for Appellant
 STATE v. SMITH
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.

P E R K I N S, Judge:

¶1 Alvin “G Money” Smith appeals the denial of his post-trial
motions filed in February 2018. Smith contends the trial court committed
fundamental error when it failed to rule on the combined February motions.
For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On October 25, 2017, a jury found Smith guilty of 19 counts of
sex trafficking and drug-related crimes involving minors. On April 18, 2018,
the court sentenced Smith to 187 years in the Department of Corrections. In
addition, the court imposed four concurrent terms of probation, including
two lifetime probation terms to begin at the end of Smith’s incarceration.

¶3 Between the jury’s October verdict and the court’s entering a
judgment of conviction and sentencing Smith in April, Smith filed multiple
motions and petitions in propria persona even though he was represented by
counsel. Those motions included Smith’s three combined motions filed
February 6, 2018, which are the only motions at issue on appeal. Smith’s
combined motions included a motion for new trial pursuant to Arizona
Rule of Criminal Procedure (“Rule”) 24.1, a Rule 24.2 motion to vacate
judgment, and a Rule 32 motion for post-conviction relief.

¶4 The trial court noted on the record that it would address the
combined motions and ordered the State to respond. The court then stayed
that order until after Smith’s mental health evaluation.

¶5 At a status conference on March 29, 2018, after the mental
health evaluation, the court asked whether any motions were pending. The
State said that neither of the attorneys in the case had any motions pending.
Smith said nothing about the February motions and his counsel did not
alert the court to the February motions. The court directed the parties to
raise any overlooked motions at sentencing. Smith did not remind the court
of the February motions at his subsequent sentencing and the court did not
address them. Smith now appeals.

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Decision of the Court

DISCUSSION

¶6 We review the trial court’s decision on a motion for new trial
and on a motion to vacate for abuse of discretion. State v. Parker, 231 Ariz.
391, 408, ¶¶ 74, 78 (2013). We review the interpretation and application of
court rules de novo. State v. Fischer, 242 Ariz. 44, 48, ¶ 10 (2017). Here, the
applicable Rules of Criminal Procedure and our prior interpretations of
those rules are dispositive. As to the three motions at issue in this appeal,
undecided motions in the trial court are “deemed denied by operation of
law.” State v. Hill, 174 Ariz. 313, 323 (1993).

¶7 First, Smith’s motion for a new trial pursuant to Rule 24.1 was
untimely. “A party must file a motion for a new trial no later than 10 days
after return of the verdict being challenged. This deadline is jurisdictional
and the court may not extend it.” Ariz. R. Crim. P. 24.1(b); see also State v.
Hickle, 129 Ariz. 330, 332 (1981) (trial court lacks jurisdiction to grant
defendant’s motion for a new trial filed more than 10 days after jury
verdict). The jury returned its verdict on October 25, 2017. Smith filed his
motion for new trial on February 6, 2018, well beyond the jurisdictional 10-
day period imposed by Rule 24.1(b). Thus, the trial court lacked jurisdiction
to rule on Smith’s motion and did not err in effectively denying that motion.

¶8 Second, the trial court did not err in effectively denying
Smith’s motion to vacate the judgment pursuant to Rule 24.2. “A party must
file a motion under [Rule 24.2] no later than 60 days after the entry of
judgment and sentence . . . .” Ariz. R. Crim. P. 24.2(b) (emphasis added).

¶9 “[T]he entry of judgment and sentence occurs at sentencing.”
State v. Montgomery, 233 Ariz. 341, 343, ¶ 7 (App. 2013). Therefore, if a
defendant files a motion to vacate the judgment before the court has entered
the judgment and sentence, then the defendant’s motion is premature and
cannot proceed. See Hickle, 129 Ariz. at 332; State v. Saenz, 197 Ariz. 487, 489,
¶ 6 (App. 2000) (“Nor could [defendant] have proceeded under Rule 24.2
because a judgment of conviction and sentence had not yet been entered.”).
Smith’s Rule 24.2 motion was filed more than two months before the court
entered his judgment and sentence. Thus, Smith’s motion to vacate was
premature.

¶10 Third, Smith’s Rule 32 motion was also premature. Under
Rule 32.4(a)(2)(D), a Rule 32 motion must be filed “no later than 90 days
after the entry of judgment and sentence or no later than 30 days after the
issuance of the order and mandate in the direct appeal, whichever is later.”
Ariz. R. Crim. P. 32.4(a)(2)(D) (emphasis added). If the motion is filed before

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Decision of the Court

the court enters judgment and sentence, then the motion is premature and
cannot proceed. Saenz, 197 Ariz. at 489, ¶ 5–6. Smith filed his motion before
the entry of judgment and sentence. Accordingly, the court did not err in
effectively denying Smith’s February 6 Rule 32 motion.

CONCLUSION

¶11 We affirm Smith’s convictions and resulting sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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