State v. Gibson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

DANIEL WAYNE GIBSON, Appellant.

No. 1 CA-CR 21-0448
FILED 6-2-2022

Appeal from the Superior Court in Mohave County
No. S8015CR201800464
The Honorable Richard D. Lambert, Judge

APPEAL DISMISSED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Law Firm of Daniel B. Kaiser, Flagstaff
By Daniel B. Kaiser
Counsel for Appellant
 STATE v. GIBSON
Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.

F U R U Y A, Judge:

¶1 Daniel Wayne Gibson appeals from a restitution order
entered pursuant to a guilty plea. We dismiss the appeal for lack of
jurisdiction.

FACTS AND PROCEDURAL HISTORY

¶2 The State charged Gibson with burglary in the third degree,
theft, transporting a motor vehicle to a chop shop, and two counts of theft
of means of transportation. Gibson accepted the State’s offer to plead guilty
to an amended charge of attempted theft of means of transportation. The
plea agreement stipulated that Gibson be sentenced to two years’
imprisonment and that he pay “restitution to the victims on all counts,
including any and all dismissed counts, with [a] restitution cap of
$242,000.00.” Gibson further agreed he would have no “right to appeal from
the judgment or sentence imposed as a result of th[e] stipulated guilty
plea.” In exchange for Gibson’s plea, the State agreed to dismiss the other
charges.

¶3 The superior court accepted Gibson’s plea, sentenced him to
two years’ imprisonment with 412 days’ presentence incarceration credit,
dismissed the other charges, and scheduled a restitution hearing. The
hearing was continued multiple times, and Gibson moved, after he had
been released from prison for more than a year, to deny any restitution
order on account of unreasonable delay. The court denied Gibson’s motion,
held a restitution hearing, and entered an order requiring him to pay
$31,013.26 in restitution.

¶4 Gibson appealed, arguing that the court lacked jurisdiction to
order restitution after his sentence had expired, that the delay between the
imposition of sentence and order of restitution was unreasonable, and that
the amount of restitution ordered exceeded the victims’ economic loss. The
State disputes Gibson’s claims.

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 STATE v. GIBSON
Decision of the Court

DISCUSSION

¶5 The Arizona Constitution guarantees criminal defendants a
right to appeal. Ariz. Const. art. 2, § 24. But for defendants who plead guilty
in noncapital cases, the constitutional right to appeal may only be exercised
through a proceeding for post-conviction relief. See State v. Smith, 184 Ariz.
456, 458 (1996). That limitation is expressed in our statutes and rules.
Subsection (B) of Arizona Revised Statutes (“A.R.S.”) § 13-4033 states: “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.” Arizona Rule of Criminal Procedure (“Rule”) 17.1(e) provides:
“A defendant who pleads guilty or no contest in a noncapital case waives
the right to file a notice of appeal and to have an appellate court review the
proceedings on a direct appeal under Rule 31. A defendant who pleads
guilty or no contest may seek relief under Rule 33 by filing a Notice
Requesting Post-Conviction Relief and a Petition for Post-Conviction Relief
in the trial court.” Consistent with those provisions, Gibson received a
notice when he was sentenced informing him he had no right to a direct
appeal if he had pleaded guilty.

¶6 Gibson and the State both assert in their briefs that we have
jurisdiction over Gibson’s appeal under A.R.S. § 13-4033(A)—the statute
enumerating what decisions are appealable by a criminal defendant.
Neither party addresses the applicability of § 13-4033(B) or Rule 17.1(e). We
have an independent duty to assess and confirm our appellate jurisdiction,
which “is provided and limited by law” and which may not be conferred
by the parties’ agreement or error. State v. Serrano, 234 Ariz. 491, 493, ¶ 4
(App. 2014).

¶7 In Hoffman v. Chandler ex rel. Cnty. of Pima, 231 Ariz. 362 (2013),
our supreme court considered whether a post-judgment restitution order
entered after the defendant pleaded guilty was appealable under § 13-
4033(A)(3) (appeal of post-judgment order affecting the defendant’s
substantial rights) or subject to § 13-4033(B)’s limitation on direct appeal.
The court held that “when subsection (B) [of § 13-4033] applies, subsection
(A) cannot be invoked to authorize a direct appeal.” Id. at 365, ¶ 16.
Reasoning that the legislature intended a post-judgment restitution order
contemplated by a plea agreement to be treated as part of the defendant’s
“sentence” under § 13-4033(B), id. at 364, ¶¶ 9–11, the supreme court held
that § 13-4033(B) “bars a defendant from directly appealing a contested
post-judgment restitution order entered pursuant to a plea agreement that
contemplated payment of restitution up to a capped amount. Any appellate

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 STATE v. GIBSON
Decision of the Court

review must be obtained through post-conviction relief proceedings.” Id. at
362–63, ¶ 1.

¶8 We see no meaningful distinction between this case and
Hoffman that would cast doubt on Hoffman’s applicability here. Like the
defendant in Hoffman, Gibson agreed, in accepting the plea offer, to pay
restitution up to a capped amount and to waive the right to a direct appeal.
Id. at 365, ¶ 17. Also as in Hoffman, the restitution in Gibson’s case was
contested and ordered after the sentencing hearing. Id. at 363, ¶ 3. Neither
of those facts altered the Hoffman court’s decision that the restitution order
was not appealable.

CONCLUSION

¶9 Because the restitution order in Gibson’s case was entered
pursuant to a plea agreement that contemplated the payment of restitution
up to a capped amount, Gibson’s direct appeal of the order is barred by
A.R.S. § 13-4033(B) and Rule 17.1(e). We therefore dismiss the appeal for
lack of jurisdiction.

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

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