State of Arizona v. Brady Whitman, Jr.

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,

v.

BRADY WHITMAN, JR.,
Appellant.

No. CR-13-0201-PR
Filed April 9, 2014

Appeal from the Superior Court in Pima County
The Honorable Howard L. Fell, Judge Pro Tempore
No. CR20110393-001
APPEAL DISMISSED

Opinion of the Court of Appeals, Division Two
232 Ariz. 60, 301 P.3d 226 (2013)
VACATED

COUNSEL:

Thomas C. Horne, Attorney General, Robert L. Ellman, Solicitor General,
Joseph T. Maziarz, Section Chief Counsel, Phoenix, David A. Sullivan
(argued), Assistant Attorney General, Criminal Appeals Section, Tucson,
for State of Arizona

Law Offices Pima County Legal Defender, Scott A. Martin (argued), Legal
Defender, Tucson, for Brady Whitman, Jr.

David J. Euchner (argued), Tucson, for Amici Curiae Arizona Attorneys
for Criminal Justice and Pima County Public Defender
 STATE v. WHITMAN
OPINION OF THE COURT

CHIEF JUSTICE BERCH authored the opinion of the Court, in which VICE
CHIEF JUSTICE BALES, JUSTICE PELANDER, JUSTICE BRUTINEL, and
JUSTICE TIMMER joined.

CHIEF JUSTICE BERCH, opinion of the Court:

¶1 Arizona Rule of Criminal Procedure 31.3 requires that a
notice of appeal be filed “within 20 days after the entry of judgment and
sentence.” We granted review to determine whether “entry,” as used in
Rule 31.3, occurs when the judge pronounces the sentence in open court or
instead when the clerk files the minute entry memorializing the judgment
and sentence. We conclude that entry occurs when the sentence is
pronounced and that defendants have twenty days from that date to file a
notice of appeal. Accordingly, we hold that the notice of appeal in this
case was untimely.

I. BACKGROUND

¶2 A jury convicted Brady Whitman, Jr. of four counts of
aggravated DUI. He was sentenced on December 7, 2011, and the court
clerk filed the minute entry memorializing his sentence on December 9.
Whitman filed his notice of appeal on December 28, twenty-one days after
his sentencing, but only nineteen days after the minute entry was filed.

¶3 The State challenged the notice as untimely. In a split
decision, the court of appeals concluded that Rule 31.3 is ambiguous and
that Whitman should not be penalized for failing to ascertain its meaning.
State v. Whitman, 232 Ariz. 60, 62, 66 ¶¶ 4, 21-23, 301 P.3d 226, 228, 232
(App. 2013). Thus, it held that “the timeliness of a criminal defendant’s
appeal may be measured from the date when the minute entry containing
the judgment and sentence was filed.” Id. at 66 ¶ 23, 301 P.3d at 232.

¶4 We granted review to determine the meaning of “entry” in
Rule 31.3, a legal issue of statewide importance, and to resolve conflicting

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OPINION OF THE COURT

opinions rendered by the court of appeals.1 We have jurisdiction under
Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

II. DISCUSSION

¶5 We review the interpretation of court rules de novo, State v.
Fitzgerald, 232 Ariz. 208, 210 ¶ 10, 303 P.3d 519, 521 (2013), applying
principles of statutory construction, Chronis v. Steinle, 220 Ariz. 559, 560
¶ 6, 208 P.3d 210, 211 (2009).

¶6 We look first at the language of the rule and attempt “to give
effect to the intent of the rule-makers.” Id. With two exceptions not at
issue here, Rule 31.3 provides that “[t]he notice of appeal shall be filed
with the clerk of the trial court within 20 days after the entry of judgment
and sentence.” It does not define the phrase “entry of judgment and
sentence.”

¶7 Rule 31.3 yields two reasonable interpretations. “Entry of
judgment and sentence” could mean, and hence the time to appeal could
run from, either the date the judge pronounces sentence in open court or
the date the judgment is entered into the minutes. Ambiguity exists when
a rule may be reasonably understood in two or more ways. Hayes v. Cont’l
Ins. Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994) (observing that
ambiguity exists if a text “allows for more than one reasonable
interpretation”); Sparks v. Republic Nat’l Life Ins. Co., 132 Ariz. 529, 534, 647
P.2d 1127, 1132 (1982) (analyzing insurance contract and stating that
ambiguity exists when language “can be reasonably construed in more
than one sense”). We therefore agree with the court of appeals that Rule
31.3 is ambiguous. See Whitman, 232 Ariz. at 62 ¶ 4, 301 P.3d at 228.

¶8 Because the intended meaning is not clear, we examine “the
rule’s context, the language used, the subject matter, the historical
background, the effects and consequences, and its spirit and purpose” as
guides to its proper interpretation. Chronis, 220 Ariz. at 560 ¶ 6, 208 P.3d
at 211 (quoting State v. Aguilar, 209 Ariz. 40, 47 ¶ 23, 97 P.3d 865, 872

1 Compare Whitman, 232 Ariz. at 68 ¶ 30, 301 P.3d at 234, with State v.
Montgomery, 233 Ariz. 341, 344 ¶ 12, 312 P.3d 140, 143 (App. 2013).

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OPINION OF THE COURT

(2004)). And we read rules in “light of and in connection with” other
related rules. State v. Treadway, 88 Ariz. 420, 421, 357 P.2d 157, 158 (1960);
see also State ex rel. Larson v. Farley, 106 Ariz. 119, 122, 471 P.2d 731, 734
(1970) (explaining that related statutes should be harmonized).

¶9 Interpreting “entry” to occur at the time of oral
pronouncement of judgment and sentence permits the most consistent
reading among the Rules of Criminal Procedure. Rule 26.16(a), titled
“Entry of Judgment and Sentence,” states that “[t]he judgment of
conviction and the sentence thereon are complete and valid as of the time
of their oral pronouncement in open court.” Ariz. R. Crim. P. 26.16(a).
Although subsection (a) indicates that a judgment is entered when it is
pronounced, subsection (b) confuses matters somewhat by requiring
“[t]he court or person authorized by the court [to] forthwith enter the
exact terms of the judgment and sentence in the court’s minutes.” Id. R.
26.16(b). Hence, “entry,” as it is used in subsection (a), occurs at oral
pronouncement, but the act of entering the judgment and sentence in
subsection (b) occurs when they are recorded in the minutes. Thus, Rule
26.16 does not resolve the meaning of “entry” for purposes of Rule 31.3.
We therefore turn to other rules and comments to inform our
interpretation.

¶10 First, Rule 31.8 requires court reporters to transcribe the
“[e]ntry of judgment and sentence.” Id. R. 31.8(b)(2)(iii). Because a court
reporter transcribes spoken words, this rule suggests that “entry” occurs
at the pronouncement of sentence rather than when the minute entry is
prepared or filed.

¶11 Second, Rule 26.11 requires the sentencing court to “[i]nform
the defendant of his or her right to appeal . . . and advise the defendant
that failure to file a timely appeal will result in the loss of the right.” Id. R.
26.11(a). The court must then give “the defendant a written notice of these
rights and the procedures the defendant must follow to exercise them.”
Id. R. 26.11(c). The comment to Rule 26.11 instructs trial courts to use
Form 23 “to notify the defendant of his right[] to appeal.” Id. R. 26.11 cmt.

¶12 Form 23 provides clear guidance. It states: “You must file a
[notice of appeal] (Form 24(a)) within 20 days of the entry of judgment

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OPINION OF THE COURT

and sentence. . . . The entry of judgment and sentence occurs at the time
of sentencing.” Id. R. 41, Form 23. Rule 41 explains that the forms
provided in the appendix to the rules “are sufficient to meet the
requirements” of the Rules of Criminal Procedure and recommends that
judges use the forms. At oral argument, counsel acknowledged that
Whitman was provided with Form 23 at the time of his sentencing.

¶13 Third, the history of Rule 31.3 and related rules also
supports the interpretation we adopt today. Since 1940, defendants have
not been permitted to file a notice of appeal until judgment has been
entered. Compare Rev. Code of Ariz. § 5138 (1928) (measuring time for
appeal from “rendition of the judgment or the making of the order”), with
Ariz. R. Crim. P. 31.3 (measuring time for appeal from “entry of judgment
and sentence”); Ariz. R. Crim. P. 348, 17 A.R.S. (1956) (measuring time for
appeal from “entry of the judgment or sentence”); Ariz. Code Ann. § 44-
2509 (1939) (R. Crim. P. § 420) (measuring time for appeal from date
“judgment or sentence . . . is entered”). And until 1973, judgments were
final once they had been both “orally pronounced by the court and
entered in the minutes.” State v. Johnson, 108 Ariz. 116, 118, 493 P.2d 498,
500 (1972); see also Ariz. R. Crim. P. 325, 17 A.R.S. (1956) (repealed in 1973).
But in 1973, the court substantially revised the criminal rules. See Sup. Ct.
Advisory Comm. on Criminal Rules, Arizona Proposed Rules of Criminal
Procedure, Intro. (1972) (“Proposed Rules”); see also John M. Greacen, The
Proposed New Rules of Criminal Procedure—A Preview of The State Bar
Committee’s Convention Presentation, 7 Ariz. B.J. 11, 11 (Spring 1972). As
part of this effort, the Court substantively changed the rule governing
entry of judgment and sentence.

¶14 The Supreme Court’s Advisory Committee on Criminal
Rules recommended that Rule 29.16(a) (later renumbered as 26.16(a)) read:
“Entry of Judgment and Sentence. The notation of the exact terms of the
judgment and sentence by the clerk in the docket shall constitute the entry
of judgment and sentence.” Proposed Rules at 132. The proposed comment
explained, “This section [was] derived from Fed. R. App. P. 36. The date
of the entry of judgment and sentence is the point from which the 20-day
time limit for filing a notice of appeal is measured.” Id. The Court
rejected this proposed rule and comment in favor of current Rule 26.16(a),
implicitly rejecting the federal model. Compare Ariz. R. Crim. P. 26.16 with

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OPINION OF THE COURT

Fed. R. App. P. 36. This choice suggests that the oral pronouncement of
sentence, rather than the preparation or filing of the minute entry, triggers
the twenty-day period for filing a notice of appeal.

¶15 Finding the 1973 rule changes inconclusive, see Whitman, 232
Ariz. at 67-68 ¶¶ 26-28, 301 P.3d at 233-34, the court of appeals majority
cited several cases in support of its conclusion that judgments have
historically been appealable only after both oral pronouncement and entry
in the clerk’s minutes, id. at 62-63 ¶¶ 8-9, 301 P.3d at 228-29. But these
cases analyzed the criminal rules before the 1973 changes, quoted without
analysis language from pre-1973 cases, or addressed civil or juvenile rules
of procedure. For civil and juvenile cases, specific rules provide that entry
of judgment occurs upon filing. See Ariz. R. Civ. P. 58(a); Ariz. R. P. Juv.
Ct. 104(A). The criminal rules do not contain a similar provision. We
therefore find these cases unhelpful in construing the current criminal
rules.

¶16 Cases that address post-1973 criminal sentencing implicitly
acknowledge that the time to appeal runs from the sentencing date. See,
e.g., State v. Williams, 122 Ariz. 146, 153, 593 P.2d 896, 903 (1979) (finding
appeal untimely because defendant filed more than one year “after he was
sentenced on the charge”); Burton v. Superior Court, 27 Ariz. App. 797, 800,
558 P.2d 992, 995 (1977) (citing Rule 26.16 and noting that the sentence “is
final and appealable at the time of its ‘pronouncement’ by the court”);
State v. Fuentes, 26 Ariz. App. 444, 446, 549 P.2d 224, 226 (1976) (finding
appeal untimely when more than twenty days elapsed since defendant’s
sentencing date).

¶17 Courts have also used the date of oral pronouncement to
measure the timeliness of notices for post-conviction relief under Rule
32.4(a), which prescribes a ninety-day limit in language substantially
similar to that in Rule 31.3. See, e.g., State v. Rosario, 195 Ariz. 264, 266 ¶ 8,
987 P.2d 226, 228 (App. 1999) (noting that defendant’s “sentence was
pronounced on December 16, 1994, thus marking the beginning of the
ninety-day period”); State v. Jones, 182 Ariz. 432, 433, 897 P.2d 734, 735
(App. 1995) (considering only date of sentencing to find notice untimely);
compare Ariz. R. Crim. P. 32.4(a) (“within ninety days after the entry of

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OPINION OF THE COURT

judgment and sentence”), with Ariz. R. Crim. P. 31.3 (“within 20 days after
the entry of judgment and sentence”).

¶18 Finally, a comment to Rule 26.9 explains that “the time for
filing a notice of appeal is to run from the entry of judgment and sentence
whether or not the defendant is present.” Ariz. R. Crim. P. 26.9 cmt.
Although this comment incorrectly suggests that sentencing in absentia is
permitted, it nonetheless reveals the drafters’ intent to measure the time to
appeal from the date the sentence is pronounced in open court.

¶19 Our determination that an appeal’s timeliness is measured
from the sentencing date comports with the overarching purpose of the
criminal rules: to “provide for the just, speedy determination of every
criminal proceeding[, and] . . . to secure simplicity in procedure, fairness
in administration, the elimination of unnecessary delay and expense, and
to protect the fundamental rights of the individual while preserving the
public welfare.” Id. R. 1.2. Interpreting “entry of judgment and sentence”
as occurring at the time of oral pronouncement is simple, fair, and
expedient. As provided in Form 23, judges advise defendants at
sentencing that they have twenty days from the date of sentencing to
appeal, regardless of the date the clerk enters the terms of the judgment
and sentence in the minutes.

III. CONCLUSION

¶20 We hold that the twenty-day time limit for filing a notice of
appeal begins to run on the date of oral pronouncement of sentence.
Accordingly, we vacate the opinion of the court of appeals and dismiss the
appeal.2

2 Whitman is not without a remedy. The State conceded at oral
argument that Whitman is entitled to file a late notice of appeal under
Arizona Rule of Criminal Procedure 32.1(f), which provides relief to a
defendant whose “failure to file a . . . notice of appeal within the
prescribed time was without fault on the defendant’s part.”

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