State v. Soto

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0089-PR
)
Appellee, ) Court of Appeals
) Division Two
) Nos. 2 CA-CR 08-0405
) 2 CA-CR 08-0406
v. ) (Consolidated)
)
) Pima County
) Superior Court
JESUS HUMBERTO SOTO, ) Nos. CR20031147
) CR20040081
)
Appellant. ) O P I N I O N
_________________________________ )

Appeal from the Superior Court in Pima County
The Honorable John S. Leonardo, Judge
________________________________________________________________

Opinion of the Court of Appeals, Division Two
223 Ariz. 407, 224 P.3d 223 (2010)

OPINION VACATED; APPEALS REINSTATED;
REMANDED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Capital Litigation Section
Laura Chiasson, Assistant Attorney General Tucson
Attorneys for State of Arizona

ISABEL G. GARCIA, PIMA COUNTY LEGAL DEFENDER Tucson
By Robb P. Holmes, Assistant Legal Defender
Attorneys for Jesus Humberto Soto
________________________________________________________________

B E R C H, Chief Justice

¶1 We granted review in this case to determine the

constitutionality of Arizona Revised Statutes (“A.R.S.”) section
13-4033(C) (2010). Since we granted review, the State has

conceded that the statute does not apply to the Defendant’s

cases. We therefore vacate the opinion of the court of appeals.

¶2 Soto was convicted in two cases in 2004. He absconded

before sentencing and was not returned to custody until October

2008. He was subsequently sentenced on December 1, 2008. On

September 26, 2008, just before Soto’s return to custody, A.R.S.

§ 13-4033(C) became effective. See 2008 Ariz. Sess. Laws, ch.

25, § 1 (2d Reg. Sess.). That subsection prohibits a defendant

from appealing a final judgment of conviction “if the

defendant’s absence prevents sentencing from occurring within

ninety days after conviction.” A.R.S. § 13-4033(C).

¶3 Soto appealed his convictions. After initially

dismissing the appeals, the court of appeals reconsidered,

reinstated the appeals, and held that § 13-4033(C)

unconstitutionally infringed Soto’s right to an appeal under

Article 2, § 24 of the Arizona Constitution. The State sought

review. We granted review and asked the parties to address in

their supplemental briefs whether § 13-4033 applies

retroactively to defendants convicted before its effective date.

¶4 In its supplemental briefing, the State conceded for

the first time that § 13-4033 does not apply to Soto, correctly

reasoning that the statute does not apply to persons who were

returned to custody within ninety days of September 26, 2008.

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¶5 Based on the State’s concession that A.R.S. § 13-

4033(C) does not apply to Soto, we decline to rule on any

constitutional or retroactivity issues this case might have

presented. See Sch. Dist. No. 26 of Yuma Cnty. v. Strohm, 106

Ariz. 7, 9, 469 P.2d 826, 828 (1970) (noting that

“Constitutional issues will not be determined unless squarely

presented in a justiciable controversy, or unless a decision is

absolutely necessary in order to determine the merits of the

suit” (citations omitted)). We therefore affirm the denial of

the State’s motion to dismiss the appeals, vacate the opinion of

the court of appeals, and remand this case to the court of

appeals for further proceedings.

__________________________________
Rebecca White Berch, Chief Justice

CONCURRING:

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Michael D. Ryan, Justice (Retired)*

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*Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Michael D. Ryan, Retired Justice of the Supreme
Court of Arizona, was designated to sit on this matter.

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