State v. Maldonado

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0179-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 07-0837
FRANK R. MALDONADO, )
) Maricopa County
Appellant. ) Superior Court
) No. CR2006-174875-001 SE
)
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Paul J. McMurdie, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division One
223 Ariz. 121, 219 P.3d 1050 (App. 2009)

VACATED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
Michael T. O'Toole, Assistant Attorney General
Attorneys for State of Arizona

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Karen M. Noble, Deputy Public Defender
Attorneys for Frank R. Maldonado
________________________________________________________________

B A L E S, Justice

¶1 We hold that the State’s failure to file an

information before trial did not deprive the superior court of

subject matter jurisdiction or constitute fundamental error. 
 I.

¶2 Frank R. Maldonado was charged by direct complaint

with possession of cocaine. After a preliminary hearing, the

superior court found probable cause to hold him for trial. That

day, Maldonado was arraigned and the court entered his not

guilty plea. A minute entry for this hearing indicates that an

information was filed, but the hearing transcript does not refer

to an information. The State later filed three pleadings that

each purported to amend the information to allege prior

convictions for sentencing purposes.

¶3 The case proceeded to trial. The trial transcript and

a corresponding minute entry reflect that the court clerk read

the charge to the jury from the information. The jury returned

a guilty verdict and the superior court sentenced Maldonado to a

term of imprisonment. In preparing an appeal, Maldonado’s

counsel reviewed the record and could not find a copy of the

information in any court file. On motion of Maldonado’s

counsel, the court of appeals granted leave to supplement the

record to include the information. The State then filed an

information with the superior court and a copy with the court of

appeals. This information tracked the charge in the complaint

and the information read to the jury, but was dated the same

date it was filed, some thirteen months after Maldonado’s trial.

¶4 On appeal, Maldonado argued that the superior court
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lacked subject matter jurisdiction because the information was

not filed until after he was tried, convicted, and sentenced.

He relied on this Court’s statement in State v. Smith that “in a

criminal case the court acquires no jurisdiction of the subject

matter of an alleged offense unless the jurisdictional facts

constituting the offense are set forth in the information.” 66

Ariz. 376, 379, 189 P.2d 205, 207 (1948).

¶5 The court of appeals distinguished Smith and affirmed

Maldonado’s conviction and sentence. State v. Maldonado, 223

Ariz. 123 ¶¶ 12-13, 17, 219 P.3d 1052 (App. 2009). Citing State

v. Buckley, 153 Ariz. 91, 734 P.2d 1047 (App. 1987), the court

said that other documents may constitute the equivalent of an

information and thus confer subject matter jurisdiction on the

superior court. The facts here, the court observed,

“affirmatively demonstrate that [Maldonado] was provided

adequate notice of the charge against him, and that the charge

was sufficiently stated in the complaint, preliminary hearing

and at trial to confer jurisdiction.” Id. at ¶ 15, 219 P.3d at

1053. To the extent “a procedural defect actually existed,” the

court concluded that it was “not jurisdictional and did not

prejudice [Maldonado’s] rights.” Id. at ¶ 16, 219 P.3d at 1053.

¶6 We granted Maldonado’s petition for review to consider

whether the State’s failure to file an information until after

trial affected the subject matter jurisdiction of the superior
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court. Our jurisdiction is based on Article 6, Section 5(3) of

the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”)

section 12-120.24 (2003).

II.

A.

¶7 Article 2, Section 30 of the Arizona Constitution

provides that “[n]o person shall be prosecuted criminally in any

court of record for felony or misdemeanor, otherwise than by

information or indictment.” A felony prosecution may commence

by an indictment, which reflects a grand jury’s finding of

probable cause to support the charged offense, or by the filing

of a complaint. A defendant charged by complaint is entitled to

a preliminary examination at which a court determines whether

probable cause exists. Id. If the court finds probable cause

(or if the defendant waives the preliminary examination), the

state is required to file an information within the next ten

days. Ariz. R. Crim. P. 13.1(c).

¶8 An information is “a written statement charging the

commission of a public offense, signed and presented to the

court by the prosecutor.” Id. 13.1(b). The information, like

an indictment, must contain a “plain, concise statement of the

facts sufficiently definite to inform the defendant of the

offense charged,” and must also “state for each count the

official or customary citation of the . . . provision of law
4
which the defendant is alleged to have violated.” Id. 13.2(a)-

(b).

¶9 If the state does not timely file an information, the

defendant may move for the dismissal of the prosecution without

prejudice. See id. 13.1(c). Such motions must be made no later

than twenty days before trial, id. 16.1(b), and an untimely

motion is generally precluded unless its basis could not be

identified earlier through reasonable diligence. Id. 16.1(c).

¶10 We assume for purposes of this case that the State did

not file an information within ten days after the superior court

found probable cause to hold Maldonado for trial. We also

assume that counsel for both the State and Maldonado were

unaware that the information had not been filed, inasmuch as the

superior court’s minute entry indicated that an information had

been filed and the jury was later read the charge from an

information. The information, we presume, was actually filed

only after defense counsel noted its omission from the record on

appeal.

¶11 Maldonado contends that the State’s failure to file

the information before trial requires reversal of his conviction

and sentence. Relying on Smith, Maldonado argues that Article

2, Section 30 of Arizona’s Constitution limits the subject

matter jurisdiction of the superior court by barring felony

prosecutions unless an indictment or information has been filed.
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¶12 In Smith, a defendant pleaded guilty upon his

arraignment to an information charging him with leaving the

scene of a motor vehicle accident. 66 Ariz. at 377, 189 P.2d at

206. This Court reversed the conviction and sentence because

the information failed to allege that the accident occurred on a

public highway, an element of the offense. Id. at 381, 189 P.2d

at 209. Smith quoted Article 2, Section 30 and observed that

“unless the jurisdictional facts constituting the offense are

set forth in the information,” the superior court does not

acquire subject matter jurisdiction. Id. at 378-79, 189 P.2d at

207.

B.

¶13 Although the language in Smith supports Maldonado’s

challenge to his conviction, we reject its suggestion that a

defective information (or the failure to file an information) in

itself deprives a court of subject matter jurisdiction over

further proceedings in a criminal case.

¶14 In current usage, the phrase “subject matter

jurisdiction” refers to a court’s statutory or constitutional

power to hear and determine a particular type of case. See

United States v. Cotton, 535 U.S. 625, 630 (2002); First Nat’l

Bank & Trust Co. v. Pomona Mach. Co., 107 Ariz. 286, 288, 486

P.2d 184, 186 (1971) (in division); Restatement (Second) of

Judgments § 11 (1982) (defining subject matter jurisdiction as a
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court’s “authority to adjudicate the type of controversy

involved in the action”). Jurisdiction in this sense cannot be

conferred by the consent of the parties and a court that lacks

subject matter jurisdiction cannot adjudicate the action.

¶15 Smith, however, employed a more expansive concept of

“subject matter jurisdiction.” The superior court in Smith

clearly had the power to adjudicate the felony described in the

complaint. Indeed, Smith implicitly acknowledged as much,

noting that, after the reversal of the conviction, the state

could proceed anew against the defendant by filing a legally

sufficient information. 66 Ariz. at 379, 189 P.2d at 207.

Smith’s remarks about jurisdiction must have referred instead to

the superior court’s inability to enter a valid judgment of

conviction based upon a defective information. But concluding

that a court cannot enter a valid judgment because of a

procedural error does not mean that the court lacks subject

matter jurisdiction. Cf. Taliaferro v. Taliaferro, 186 Ariz.

221, 223, 921 P.2d 21, 23 (1996) (holding that erroneous failure

to honor a notice of change of judge does not divest court’s

subject matter jurisdiction).

¶16 It appears that Smith used the term “subject matter

jurisdiction” somewhat loosely to allow this Court to exercise

appellate jurisdiction to correct a constitutional error. Cf.

Cotton, 535 U.S. at 629-30 (discussing parallel practice by
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Supreme Court in federal cases when statutes limited grounds for

appellate review). In Smith, the defendant was not represented,

had pleaded guilty upon arraignment, and apparently had not been

advised by the trial court about the consequences of his plea.

66 Ariz. at 380, 189 P.2d at 208. Characterizing the error in

the information as involving “subject matter jurisdiction” was,

under then-existing case law, critical to this Court’s review of

Smith’s conviction and prison sentence because the Court had

previously stated that the “only question[s]” it could consider

on a defendant’s appeal from a guilty plea were “jurisdictional

ones.” Burris v. Davis, 46 Ariz. 127, 131, 46 P.2d 1084, 1086

(1935).

¶17 Following Smith, in Paxton v. Walters, the Court

concluded that a defendant convicted of perjury was entitled to

habeas relief because the information did not set forth the

defendant’s allegedly false words. 72 Ariz. 120, 124, 231 P.2d

458, 460 (1951). Like Smith, Paxton did not have counsel,

pleaded guilty upon arraignment, and received a prison sentence.

Id. at 121, 231 P.2d at 458. Because the information failed to

state an offense, the Court said that “it is a nullity,

conferred no jurisdiction upon the court, and necessarily formed

no basis for a plea of guilty and for the pronouncement of

judgment and sentence thereon by the court.” Id. at 124, 231

P.2d at 460. By characterizing the defect in the information as
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jurisdictional, Paxton was able to afford habeas relief. Cf.

Oswald v. Martin, 70 Ariz. 392, 396, 322 P.2d 632, 635 (1950)

(stating that “[h]abeas corpus cannot be used as a means of

reviewing errors and irregularities which do not [a]ffect the

jurisdiction of the court”).

¶18 Although we do not question the outcome in either

Smith or Paxton, we believe that the Court’s rationale in those

cases is no longer tenable. The opinions employed vague and

outdated concepts of “jurisdiction” that over time have added

more confusion than clarity to the resolution of particular

cases. See Sheridan v. Superior Court, 91 Ariz. 211, 215, 370

P.2d 949, 952 (1962) (holding that then-existing criminal rules

entitled defendant to dismissal when state did not file

information and observing that court was “without jurisdiction

to proceed further”); cf. Taliaferro, 186 Ariz. at 223, 921 P.2d

at 23 (acknowledging “imprecise” use of term jurisdiction in

prior decisions); Marvin Johnson, P.C. v. Myers, 184 Ariz. 98,

102, 907 P.2d 67, 71 (1995) (same). Courts no longer need to

characterize errors as “jurisdictional” to afford post-

conviction relief when a conviction or sentence violates the

federal or state constitutions. See Ariz. R. Crim. P. 32.1

(identifying grounds for relief).

¶19 Nor are we persuaded by Smith’s conclusion that

Article 2, Section 30 limits the jurisdiction of superior
9
courts. Article 2, Section 30 appears in the Declaration of

Rights and does not by its terms address jurisdiction. The

records of the constitutional convention also do not suggest

that the Framers regarded this provision as jurisdictional.

Instead, the discussions about the language that became Section

30, which was originally submitted as Proposition 68, indicate

that the Framers intended to allow prosecution of both felonies

and misdemeanors by information (territorial law required

felonies to be prosecuted by indictment), while assuring

defendants the right to a preliminary hearing before a

magistrate. See The Records of the Arizona Constitutional

Convention of 1910, at 164, 168-71 (John S. Goff ed., 1991)

[hereinafter “Records”]; cf. Arizona Penal Code, Title VI, ch.

1, § 786 (1901) (requiring felonies to be prosecuted by

indictment).

¶20 Superior court subject matter jurisdiction is

addressed in Article 6 of the Arizona Constitution. Section

14(4) of that article declares that superior courts shall have

original jurisdiction in “[c]riminal cases amounting to felony.”

The superior courts were first established by the 1912

constitution, which included the language now in Section 14(4)

as part of Article 6, Section 6. In debating the jurisdiction

of the proposed superior courts, the Framers referred to Article

6, although their comments focused on probate, juvenile, and
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forcible detainer cases rather than criminal cases. Records at

337-39, 343-46, 772-73, 916, 1208; cf. Taliaferro, 186 Ariz. at

223, 921 P.2d at 23 (noting that Article 6, Section 14(9)

confers subject matter jurisdiction in divorce cases); Marvin

Johnson, P.C., 184 Ariz. at 100, 907 P.2d at 69 (noting that

Article 6, Section 14(8) confers subject matter jurisdiction in

probate cases).

¶21 Given the language and history of Article 6, Section

14(4), we conclude that this provision, rather than Article 2,

Section 30, generally governs the subject matter jurisdiction of

the superior courts in criminal cases. See State v. Fimbres,

222 Ariz. 293, 301-02 ¶¶ 28-33, 213 P.3d 1020, 1028-29 (App.

2009) (reaching same conclusion).

C.

¶22 By directing that “[n]o person shall be prosecuted

criminally in any court of record . . . otherwise than by

information or indictment,” Article 2, Section 30 recognizes an

important constitutional right for criminal defendants. Its

provisions assure that a criminal defendant will have notice of

the charge, a right to a determination of probable cause by

either a grand jury or neutral magistrate, and a record of the

charged offense as protection against further jeopardy.

Accordingly, if a defendant properly objects to the state’s

failure to file a legally sufficient information or indictment,
11
the defendant is entitled to dismissal of the prosecution

without prejudice. See Ariz. R. Crim. P. 16.6(b).

¶23 Characterizing Article 2, Section 30 as creating a

personal right comports with both case law and procedural rules

that recognize a defendant may waive its requirements. See

Fimbres, 222 Ariz. at 302 ¶ 31, 213 P.3d at 1029. For example,

in Buckley, the court of appeals upheld a conviction when no

information was filed but the complaint identified the charged

offense and the plea agreement purported to amend and supersede

any prior charging documents. 153 Ariz. at 93-94, 734 P.2d at

1049-50. Attempting to reconcile its holding with Smith, the

court in Buckley, like the court of appeals here, concluded that

the documents of record were the “equivalent” of an information.

Id. But this is simply a different way of saying that the

actual filing of an information is not jurisdictional and that a

defendant may waive the requirements of Article 2, Section 30.

¶24 Similarly, Rules 13.1(c), 16.1(c), and 16.6(b) presume

that a defendant may waive the requirement for a timely filing

of an information insofar as the rules contemplate that a

defendant’s inaction can preclude a belated motion to dismiss

the prosecution. Cf. State v. Sheppard, 2 Ariz. App. 242, 407

P.2d 783, 785 (1965) (holding that defendant could waive timely

filing of information within criminal rule deadlines). (When no

information has been filed and an objection is raised less than
12
twenty days before trial, the court should at least direct the

prompt filing of an information, even if dismissal is not

warranted).

¶25 Just as we conclude that the personal right afforded

under Article 2, Section 30 may be waived by a defendant, we

also conclude that a defendant may forfeit the right to de novo

appellate review of errors related to this provision. If a

defendant does not object before trial, as occurred here, the

state’s failure to timely file an information will be reviewed

on appeal only for fundamental error. See State v. Henderson,

210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005); cf. Cotton,

535 U.S. at 631 (rejecting view that defects in an indictment

deprive a court of subject matter jurisdiction and instead

applying plain error review when issue was not raised below).

To prevail under this standard, Maldonado must establish that an

error occurred, was fundamental in nature, and caused him

prejudice. See Henderson, 210 Ariz. at 567 ¶ 20, 115 P.3d at

607.

¶26 There was no fundamental error here because Maldonado

cannot show prejudice. After a preliminary hearing, the

superior court found probable cause for the charge in the

complaint, arraigned Maldonado, and entered his not guilty plea.

At trial, the jury was read an information reflecting the same

charge alleged in the complaint. Maldonado acknowledges that he
13
had notice of the charge for which he was tried, and he has not

alleged any prejudice from the State’s failure to file the

information until after his trial.

III.

¶27 For the foregoing reasons, we vacate the opinion of

the court of appeals and affirm Maldonado’s conviction and

sentence.

_____________________________________
W. Scott Bales, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
Michael D. Ryan, Justice

_____________________________________
A. John Pelander, Justice

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