White v. State

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

MALCOLM WHITE, Petitioner,

v.

STATE OF ARIZONA, Respondent.

No. 1 CA-SA 24-0258
FILED 02-20-2025

Petition for Special Action from the Superior Court in Maricopa County
No. CR2019-128355-003
The Honorable Christina Henderson, Judge Pro Tempore, Commissioner

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Maricopa County Public Defender’s Office, Phoenix
By Mallory Hale
Counsel for Petitioner

Maricopa County Attorney’s Office, Phoenix
By Quinton S. Gregory
Counsel for Respondent
 WHITE v. STATE
Opinion of the Court

OPINION

Presiding Judge Michael S. Catlett delivered the opinion of the Court, in
which Judge Jennifer M. Perkins and Vice Chief Judge Randall M. Howe
joined.

C A T L E T T, Judge:

¶1 Do the Arizona Rules of Criminal Procedure allow the State
and a criminal defendant, in the absence of extraordinary circumstances, to
stipulate to allow the criminal defendant to appear for a misdemeanor
sentencing proceeding by virtual means? We conclude they do.

FACTS AND PROCEDURAL HISTORY

¶2 The State charged White with two counts of felony forgery,
but he pled guilty to solicitation to commit forgery, which is a
misdemeanor. White moved to appear virtually at sentencing because he
lives in Maryland and cannot afford to travel to Arizona to attend in person.
The State stipulated to that request. But the superior court rejected the
stipulation, reasoning that Arizona Rule of Criminal Procedure 26.9
required White to appear in person and that Rule 1.5(c)(2) allowed a virtual
appearance only in “extraordinary circumstances,” which were not present.

¶3 White moved for reconsideration. He argued Rule 1.5(c)(2)
did not apply because it addresses felony sentencing but he was to be
sentenced for a misdemeanor. The court denied the motion and White
petitioned for special action relief.

JURISDICTION

¶4 The Arizona Supreme Court revised the Arizona Rules of
Procedure for Special Actions effective January 1, 2025. The new rules
apply in all special actions pending on that date, unless doing so would be
infeasible or cause an injustice. Ariz. R.P. Spec. Act. 1 Application Note.
This action was pending on January 1, 2025, and applying the new rules is
feasible and would not cause an injustice, so we apply them here.

¶5 Arizona Rule of Procedure for Special Actions 2(c) now
outlines the scope of available relief in a special action. To obtain special
action review, a petition must seek relief formerly obtained through the

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Opinion of the Court

writs of certiorari, mandamus, or prohibition. Ariz. R.P. Spec. Act. 2(c). But
even when a petition for special action seeks proper relief, jurisdiction “may
be accepted only if the remedy by appeal is not equally plain, speedy, and
adequate.” Ariz. R.P. Spec. Act. 2(b)(2); see also Ariz. R.P. Spec. Act. 12(a)
(“In accepting or declining jurisdiction, the court is determining whether
remedy by appeal is equally plain, speedy, and adequate.”). And even
then, whether we accept special action jurisdiction is highly discretionary.
Id.; see also Ariz. R.P. Spec. Act 12(a) (“Whether to accept jurisdiction of an
appellate special action is within the court’s discretion[.]”).

¶6 But we are no longer left to the vagaries of caselaw when
exercising that discretion. Instead, Rule of Procedure for Special Actions 12
now lists many (though not all) of the factors relevant to whether to accept
or decline jurisdiction. As the comment to Rule 12 explains, the list contains
many of the factors appellate courts have applied to decide whether there
is a plain, adequate, and speedy remedy by way of appeal. Yet even those
factors merely “support” accepting or declining jurisdiction; they do not
require us to do either in any given case. See Ariz. R.P. Spec. Act. 12(b), (c).

¶7 Special action jurisdiction is appropriate here. In essence,
White seeks to prohibit the superior court from requiring him to appear in
person at his misdemeanor sentencing. No appellate or post-conviction
remedy can address the superior court’s denial of White’s motion to appear
virtually. Whether he may appear at sentencing by virtual means will
become moot if he travels to Arizona to be sentenced. See Ariz. R.P. Spec.
Act. 12(b)(5). And the issue presented is purely legal, of first impression,
likely to recur, and of statewide importance. See Ariz. R.P. Spec. Act.
12(b)(2)–(4). We accept jurisdiction.

DISCUSSION

¶8 White argues Arizona Rule of Criminal Procedure 1.5(c)(3)
allows him and the State to stipulate that he may appear for sentencing by
virtual means and that Rule 26.9 does not prohibit them from doing so. The
State agrees, and so do we.

¶9 We review the interpretation of a court rule de novo. Bobrow
v. Herrod, 239 Ariz. 180, 182 ¶ 7 (App. 2016) (quoting Cranmer v. State, 204
Ariz. 299, 301 ¶ 8 (App. 2003)). We start our analysis with the text of the
rule and if the text is clear and unambiguous, we end there too. Id.

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Opinion of the Court

I.

¶10 We first address whether Arizona Rule of Criminal Procedure
1.5 allows a misdemeanor sentencing to occur by virtual means. That Rule
outlines when a criminal defendant may appear “by using an interactive
audiovisual system[.]” Ariz. R. Crim. P. 1.5(a). Subsection (c)(2) states:

A court may not require a defendant’s appearance by use of
an interactive audiovisual system at any trial, contested
probation violation hearing, felony sentencing, or felony
probation disposition hearing, unless the court finds
extraordinary circumstances and the parties consent by
written stipulation or on the record.

Ariz. R. Crim. P. 1.5(c)(2).

¶11 Subsection (c)(3) gives the parties in other proceedings
leeway to appear by virtual means. It provides that in “any proceeding not
included in (c)(1) and (c)(2), the parties may stipulate that the defendant
may appear at the proceeding by use of an interactive audiovisual system.”
Ariz. R. Crim. P. 1.5(c)(3). There is one additional condition: “Before
accepting the stipulation, the court must find that the defendant knowingly,
intelligently and voluntarily agrees to appear at the proceeding by use of
an interactive audiovisual system.” Ariz. R. Crim. P. 1.5(c)(3).

¶12 Rule 1.5 is clear and unambiguous about the issue at hand.
Subsection (c)(3) applies to “any proceeding not included in (c)(1) and
(c)(2)[.]” So, at a proceeding not enumerated in (c)(1) and (c)(2), the
superior court has discretion to permit a defendant to appear by
videoconference when two requirements are met: (1) the parties stipulate
to the defendant’s virtual appearance and (2) the court finds that the
defendant knowingly, intelligently, and voluntarily agreed to appear
virtually. Ariz. R. Crim. P. 1.5(c)(3).

¶13 Subsection (c)(2) lists a felony sentencing, but it does not list
a misdemeanor sentencing. Thus, White’s sentencing is “a proceeding not
included in (c)(1) and (c)(2)”—neither subsection lists a misdemeanor
sentencing. And it matters not that the State initially charged White with a
felony; he is to be sentenced for a misdemeanor.

¶14 After the parties stipulated that White could appear by virtual
means, the superior court’s path forward was clear. At that point, the
superior court could hold the sentencing by virtual means and, at the outset
of that proceeding, determine whether White knowingly, intelligently, and

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Opinion of the Court

voluntarily agreed to appear virtually. If so, the court could sentence White
during the virtual hearing.

¶15 Instead, the court concluded that, in the absence of
extraordinary circumstances, (c)(2) required it to sentence White in person.
On the contrary, because (c)(2) does not apply here, the court could, in its
discretion, accept the parties’ stipulation under (c)(3).

II.

¶16 Just because Rule 1.5(c)(3) permits a virtual appearance for
misdemeanor sentencing does not mean the federal Constitution or other
court rules do too. But White contends that neither the Constitution nor
Rule 26.9 prohibits a virtual misdemeanor sentencing when a defendant
voluntarily consents. White is correct.

¶17 Under the Sixth and Fourteenth Amendments, “[a] criminal
defendant has the right to be physically present at every critical stage of a
trial,” including sentencing. State v. Forte, 222 Ariz. 389, 392 ¶ 7 (App. 2009)
(citation omitted). Nothing in the Constitution though stops a defendant
from voluntarily waiving his right to be present in court. Id. at 393 ¶ 12
(citation omitted). So long as the superior court follows the requirements
in Rule 1.5(c)(3), the Constitution is no roadblock to holding a virtual
hearing for a misdemeanor sentencing.

¶18 We turn then to whether Rule 26.9 prohibits such a hearing.
To implement the physical presence requirement in the sentencing context,
Rule 26.9 requires that “[t]he defendant . . . must be present at sentencing.”
That Rule “was promulgated to guarantee that defendants receive essential
warnings and information about their appellate rights after the sentence is
pronounced.” Forte, 222 Ariz. at 394 ¶ 17. It also “is designed to allow ‘[a]
presentence report based upon personal interview, the defendant[‘s]
exercis[e of] his right of allocution, and a chance for the judge to personally
question and observe the defendant.’” Id. (citation omitted). In Forte, this
court commented that “it is unclear whether a defendant may elect to attend
a sentencing hearing through interactive media or if, instead, a defendant's
physical presence in court is compelled by Rule 26.9.” Id. at 393 ¶ 12. We
now provide some of the clarity Forte found lacking. Rule 26.9 does not
prohibit a defendant from waiving physical presence and attending a
misdemeanor sentencing by virtual means if, under Rule 1.5(c)(3), that
waiver is knowing, intelligent, and voluntary.

¶19 Start with the text of Rule 26.9. It provides only that the
defendant must be “present.” Although being “present” ordinarily means

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a criminal defendant is physically present, appearing by virtual means with
consent can also fulfill that requirement. After all, Rule 26.9 is primarily
aimed at avoiding sentencings where the defendant is completely absent.
State v. Adler, 189 Ariz. 280, 285 (1997) (observing that “sentencing with
counsel present and the defendant present by telephone with consent is
entirely different” than sentencing in absentia and is permissible). Unlike
when a defendant is completely absent, sentencing by virtual means can
alleviate many of the concerns Rule 26.9 addresses, especially when the
defendant voluntarily waives physical presence. See id. (explaining that
sentencing with the defendant present by telephone with consent would
have alleviated most of the concerns Rule 26.9 addresses); Forte, 222 Ariz.
at 394 ¶ 18 (“Each of [Rule 26.9’s] requirements was met by the video
conference that was held here.”).

¶20 Also consider that “rules . . . should be harmonized wherever
possible and read in conjunction with each other.” State v. Brearcliffe, 254
Ariz. 579, 585 ¶ 22 (2023) (citation omitted). As we have explained, Rule
1.5(c)(3) permits a defendant to stipulate to a virtual appearance for a
misdemeanor sentencing. Reading Rule 26.9 to require physical presence
at all sentencings would bring it in conflict with Rule 1.5(c)(3) when it comes
to misdemeanor sentencings. Reading Rule 26.9, instead, to allow
sentencing by virtual means when the circumstances are right avoids that
conflict and harmonizes the two rules. We adopt that harmonious reading.

CONCLUSION

¶21 We accept special action jurisdiction, grant relief by vacating
the superior court’s ruling denying White’s motion to appear virtually, and
remand for further proceedings consistent with this opinion.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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