State of Arizona v. Manuel David Perez-Gutierrez

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,
Appellee,

v.

MANUEL D AVID PEREZ-G UTIERREZ,
Appellant.

No. CR-23-0137-PR
Filed May 31, 2024

Appeal from the Superior Court in Maricopa County
The Honorable Geoffrey H. Fish, Judge
No. CR2020-135003-001
REMANDED

Opinion of the Court of Appeals, Division One
255 Ariz. 232 (App. 2023)
VACATED WITH INSTRUCTIONS

COUNSEL:

Kristin K. Mayes, Arizona Attorney General, Alice M. Jones, Deputy
Solicitor General, Section Chief of Criminal Appeals, Ashley Torkelson
Levine (argued), Assistant Attorney General, Criminal Appeals Section,
Phoenix, Attorneys for State of Arizona

James J. Haas, Maricopa County Public Defender, Aaron J. Moskowitz
(argued), Maricopa County Deputy Public Defender, Phoenix, Attorneys
for Manuel Perez-Gutierrez.

STATE V. PEREZ-GUTIERREZ
Opinion of the Court

JUSTICE BEENE authored the Opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER and JUSTICES
BOLICK, LOPEZ, MONTGOMERY, and KING joined.

JUSTICE BEENE, Opinion of the Court:
¶1 Most errors made by a trial court fall into one of two
categories: trial error or structural error. See State v. Ring, 204 Ariz. 534, 552
¶ 45 (2003). If a criminal defendant does not object to trial error when it
occurs, the error is only reversable on appeal if it is “fundamental” and
prejudicial. State v. Escalante, 245 Ariz. 135, 140 ¶ 12 (2018). Conversely, if
a defendant can establish that structural error occurred, the error results in
automatic reversal, regardless of whether the error prejudiced the
defendant—and regardless of whether an objection was lodged at trial. See
Ring, 204 Ariz. at 552 ¶ 45.

¶2 But not all trial errors require an appellate court to reverse or
affirm the trial court’s disposition. Consequently, Arizona courts have
developed a limited-remand practice. This practice does not require a
showing of prejudice, but it also does not necessarily result in reversal.
Courts have not always agreed on when it is appropriate to deploy this
limited-remand practice.

¶3 This case calls for us to decide whether an unobjected-to
violation of A.R.S. § 13-711(A)—which requires courts to explain certain
sentencing decisions on the record—is amenable to: (1) fundamental-error
review, (2) structural-error review, or (3) the limited-remand practice
developed in cases like State v. Anzivino, 148 Ariz. 593 (App. 1985), and State
v. Harrison, 195 Ariz. 1 (1999). Because violations of § 13-711(A) are akin to
administrative errors that a trial court can correct without affecting the
disposition, we hold that a remand for the limited purpose of statutory
compliance is appropriate.

BACKGROUND

¶4 A jury convicted Manuel Perez-Gutierrez of eight counts of
sexual conduct with a minor. Perez-Gutierrez’s victim was under the age
of fifteen for counts one and two, resulting in two twenty-year terms of
imprisonment. He received one-year sentences for the remaining six
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STATE V. PEREZ-GUTIERREZ
Opinion of the Court

counts. The court ordered Perez-Gutierrez to serve all sentences
consecutively.

¶5 Arizona law compelled the trial court to impose consecutive
sentences for counts one and two. See A.R.S. § 13-705(E), (P), (T); A.R.S.
§ 13-1405. But the court had discretion to impose the remaining sentences
consecutively or concurrently. See §§ 13-711(A), -1405. When deciding
whether to impose sentences consecutively or concurrently, however, the
court was statutorily required to “state on the record the reason for its
determination.” § 13-711(A). The trial court here failed to do so.
Perez-Gutierrez did not object, but he did appeal on that basis. State v.
Perez-Gutierrez, 255 Ariz. 232, 232 ¶ 1 (App. 2023). On appeal, he
argued—for the first time—that “the superior court erred by failing to
explain why it imposed consecutive sentences as required by A.R.S.
§ 13-711(A).” Id. at 234 ¶ 6.

¶6 A split court of appeals agreed with Perez-Gutierrez,
remanding the case with instructions for the trial court to put the reasons
for its sentencing determination in the record. Id. at 238 ¶ 27. Relying on
the Anzivino and Harrison lines of cases, the court of appeals’ majority
explained that § 13-711(A) requires a judge to: (1) articulate at sentencing
the factors he or she considered, and (2) explain how those factors led to the
sentence he or she imposed. See id. at 235 ¶ 13. The court of appeals held
that if a judge fails to substantially comply with these requirements, the
case must be remanded for the trial court to satisfy § 13-711 by providing
its sentencing reasons. Id. at 235 ¶ 14.

¶7 The dissenting judge agreed that the superior court had
violated § 13-711(A) but believed that remand was unnecessary. Id. at 238
¶¶ 28–29 (Catlett, J., dissenting). Instead, the dissent maintained that the
court of appeals’ usual trial error framework should apply. Id. ¶ 29. That
is, if a trial court violates § 13-711(A), appellate courts should review for
harmless error if the defendant objects, and fundamental error if the
defendant does not. Id. And here, because Perez-Gutierrez did not object
at trial, the dissent argued that the court of appeals should review for
fundamental error and affirm the sentences. Id.

¶8 A separate court of appeals’ panel subsequently issued State
v. Garcia, 256 Ariz. 434, 436 ¶ 2 (App. 2023), which explicitly endorsed the

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Opinion of the Court

dissent’s analysis in Perez-Gutierrez. We granted review to resolve this
conflict, and because the standard of review for violations of § 13-711(A) is
a recurring issue of statewide importance. We have jurisdiction pursuant
to article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

¶9 This Court reviews the interpretation of sentencing statutes
de novo, Allen v. Sanders, 240 Ariz. 569, 571 ¶ 9 (2016), but reviews a “trial
judge’s reason[s] for imposing . . . consecutive sentences” for an abuse of
discretion, see State v. Meeker, 143 Ariz. 256, 266 (1984); see also § 13-711(A).

I.

¶10 When imposing multiple sentences of imprisonment,
sentencing courts are governed by § 13-711, which reads in relevant part:

A. Except as otherwise provided by law, if multiple
sentences of imprisonment are imposed on a person at the
same time, the sentences imposed by the court may run
consecutively or concurrently, as determined by the court. The
court shall state on the record the reason for its determination.

§ 13-711(A) (emphasis added). The final sentence of this section imposes a
duty on sentencing courts to explain, on the record, their reasons for
imposing sentences either consecutively or concurrently.

¶11 Sentencing courts are also governed by the Arizona Rules of
Criminal Procedure promulgated by this Court. One such rule, concerned
with consecutive sentences, reads in relevant part:

If the court imposes separate sentences of imprisonment on a
defendant for two or more offenses, the sentences run
consecutively unless the judge expressly directs otherwise. This
rule applies even if the offenses are not charged in the same
indictment or information. There is no presumption favoring
consecutive sentences rather than concurrent sentences.

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STATE V. PEREZ-GUTIERREZ
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Ariz. R. Crim. P. 26.13 (emphasis added). Unlike § 13-711(A), this rule does
not require a sentencing court to state its reasons for imposing consecutive
sentences.

¶12 Section 13-711(A) and Rule 26.13 both apply to sentencing
procedures, and the duty to explain sentencing decisions required by
§ 13-711(A) ostensibly conflicts with Rule 26.13. And “in the event of
irreconcilable conflict between a procedural statute and a
[Court-promulgated] rule, the rule prevails.” Seisinger v. Siebel, 220 Ariz.
85, 89 ¶ 8 (2009). This is because our constitution vests this Court—and it
alone—with the “[p]ower to make rules relative to all procedural matters
in any court.” Ariz. Const. art. 6, § 5(5); see also id. art. 3 (delineating
Arizona’s separation of powers).

¶13 Here, however, we avoid this potential constitutional conflict
by prospectively adopting § 13-711(A)’s on-the-record requirement. See
generally In re Pima Cnty. Juv. Action No. S-933, 135 Ariz. 278, 281 (1982)
(avoiding a potential constitutional issue by adopting A.R.S. § 8-538(A)’s
statutory on-the-record requirement); cf. Seisinger, 220 Ariz. at 89 ¶ 11
(explaining that courts will construe statutes to avoid constitutional
violations when possible). Section 13-711(A)’s procedural requirement is
reasonable, workable, and enables meaningful appellate review.
Henceforth, regardless of whether a sentencing judge imposes sentences
consecutively or concurrently, the judge must state on the record the reason
for his or her determination.

II.

¶14 Having adopted § 13-711(A)’s procedural requirement, we
now address the merits of Perez-Gutierrez’s appeal.

A.

¶15 As a threshold matter, we note that this requirement regulates
secondary conduct which occurs during the sentencing process. Cf.
Landgraf v. USI Film Prods., 511 U.S. 244, 275 (1994) (“[R]ules of procedure
regulate secondary rather than primary conduct . . . .”). And neither the
State nor Perez-Gutierrez have a vested interest in matters of procedure.
See id.; accord Aranda v. Indus. Comm’n, 198 Ariz. 467, 470 ¶ 11 (2000). Thus,
we may apply § 13-711(A) to Perez-Gutierrez’s ongoing appeal without
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impermissibly interfering with the parties’ vested rights. See Aranda, 198
Ariz. at 470 ¶ 11.

B.

¶16 As previously noted, § 13-711(A) requires a sentencing court
to “state on the record the reason[s] for its [sentencing] determination.”
Failure to substantially comply with this requirement is error. Cf. Harrison,
195 Ariz. at 4 ¶ 12. In this context, substantial compliance requires the trial
court to sufficiently (1) articulate the relevant factors it considered, and (2)
explain how those factors led to the court’s sentencing determination. See
id. Here, the record is bereft of any discussion of relevant factors and how
they led to the sentence imposed. The trial court, therefore, erred by failing
to substantially comply with § 13-711(A). The appropriate remedy for this
error depends on the nature of the violation and how courts review
violations of a similar nature.

¶17 Appellate courts review violations of “certain basic,
constitutional guarantees that should define the framework of any criminal
trial” for structural error. See Weaver v. Massachusetts, 582 U.S. 286, 295
(2017); accord Ring, 204 Ariz. at 552–53 ¶¶ 45–46. These violations are
uncommon—and highly consequential. See State v. Torres, 208 Ariz. 340,
344 ¶ 11 (2004) (listing examples of structural error, including “complete
denial of counsel [and] a biased trial judge”). Structural errors can corrupt
the framework of a criminal trial so thoroughly that the trial cannot reliably
determine whether a defendant is guilty or innocent. Ring, 204 Ariz. at 552
¶ 45. Put simply, structural error is so significant that the affected
disposition is necessarily unreliable. If a defendant can establish that a
structural error has occurred—even if the defendant did not object at
trial—the only remedy is reversing the affected disposition. Id.; see also
Weaver, 582 U.S. at 294–95.

¶18 Most other trial deficiencies constitute “trial error.” Ring, 204
Ariz. at 552 ¶ 45. A defining feature of trial error is that appellate courts
may quantitatively assess the prejudice caused by these errors to determine
whether the error harmed the defendant. See id. When a defendant
properly objects to a trial error, we review for “harmless error,” and the
state must “prove beyond a reasonable doubt that the error did not
contribute to or affect the verdict or sentence.” State v. Henderson, 210 Ariz.

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561, 567 ¶ 18 (2005). When a defendant does not object to a trial error,
however, he or she forfeits appellate relief unless the defendant can
establish “fundamental error by showing that (1) the error went to the
foundation of the case, (2) the error took from the defendant a right essential
to his defense, or (3) the error was so egregious that he could not possibly
have received a fair trial.” Escalante, 245 Ariz. at 142 ¶ 21. If the defendant
establishes fundamental error under either of the first two prongs, a
separate showing of prejudice is required, but if fundamental error is
shown under the third prong, prejudice is presumed, and the reviewing
court must reverse the affected disposition. Id.

¶19 Given these definitions, it is apparent that violations of
§ 13-711(A) are neither structural nor trial error. This error is not structural
error for two reasons. First, § 13-711(A) is not a basic constitutional
guarantee. Second, and more importantly, sentences are not rendered
unreliable simply because a court did not articulate its reasons for imposing
them consecutively. To be sure, compliance with § 13-711(A) assists
appellate review, but violations of this statute merely complicate review,
rather than affect the reliability of a sentencing disposition. Thus,
§ 13-711(A) violations are not structural errors.

¶20 Section 13-711(A) violations are also not ordinary trial errors.
This is because appellate courts may quantitatively review trial errors to
determine if they affected the trial court’s disposition. See Ring, 204 Ariz.
at 552 ¶ 45; see also State v. Smith, 219 Ariz. 132, 136 ¶ 20 (2008) (explaining
that sentence-enhancement errors, which necessarily affect a sentencing
disposition, are amenable to fundamental-error review). But § 13-711(A)
violations do not affect the reliability of a sentence nor influence the
sentencing court’s disposition. And—because these violations do not
influence a sentence’s disposition—their effect cannot be quantitatively
reviewed for prejudice. Cf. Smith, 219 Ariz. at 136 ¶ 22 n.8 (noting that, if a
sentence-enhancement error occurred, the court of appeals can assess
“whether it resulted in prejudice”). Thus, § 13-711(A) violations are not
trial errors that require reversal under either harmless error or fundamental
error review.

¶21 This conclusion—that a sentencing court’s failure to comply
with § 13-711(A) is neither structural nor ordinary trial error—comports
with our conclusion in Harrison. In Harrison, we concluded that failure to

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comply with an analogous statute was not amenable to quantitative review.
195 Ariz. at 5 ¶ 17 (rejecting “a harmless error analysis” for violations of
A.R.S. § 13-702, which requires a sentencing court to place findings and
reasons for imposing an aggravated or mitigated sentence on the record).
Similarly, in Anzivino, the court of appeals correctly concluded that failure
to comply with A.R.S. § 13-708 (which was renumbered as § 13-711 and
required a sentencing court to “state [its] grounds for imposing consecutive
sentences”) did “not fit neatly into th[e] definition of fundamental error.”
148 Ariz. at 597–98. We agree.

¶22 The State nevertheless suggests that we implicitly overruled
Anzivino and Harrison when we clarified fundamental error review in
Henderson. This suggestion is incorrect. In Henderson, we addressed what
an appellant must show to prevail under a fundamental-error standard, not
when an appellate court should apply fundamental-error review. See id.
at 568 ¶ 21. Accordingly, Henderson is not inconsistent with, and did not
overrule, either Anzivino or Harrison. Cf. Shinn v. Ariz. Bd. of Exec. Clemency,
254 Ariz. 255, 263 ¶ 31 (2022) (declining to assume this Court had overruled
“longstanding . . . jurisprudence by implication”).

¶23 The State further argues that § 13-711(A) violations are
amenable to fundamental-error review because courts review violations of
other rules and statutes for fundamental error. See, e.g., State v. Smith, 250
Ariz. 69, 91–92 ¶¶ 95–98 (2020) (reviewing trial court’s failure to comply
with Rule 19.1(d) for fundamental error); State v. Delahanty, 226 Ariz. 502,
504–05 ¶¶ 7–12 (2011) (reviewing trial court’s failure to comply with A.R.S.
§ 13-754(A) for fundamental error). But this argument also misses the mark.
These rules and statutes differ from § 13-711(A) because violations of these
rules and statutes may affect a court’s disposition. More precisely,
§ 13-711(A) imposes an administrative duty that assists appellate review,
whereas Rule 19.1(d) and § 13-754(A) impose duties that protect a criminal
defendant’s rights. See, e.g., Smith, 250 Ariz. at 91 ¶ 92 (recognizing that
Rule 19.1(d) protects a defendant’s “right to a fair trial”). And because these
rules and statutes implicate a defendant’s rights, violations may affect a
court’s disposition—which means that appellate courts may review these
violations for prejudice. See Part II(B) ¶ 20. Thus, courts may review
violations of these rules and statutes for fundamental error. We cannot say
the same for violations of § 13-711(A).

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STATE V. PEREZ-GUTIERREZ
Opinion of the Court

¶24 At bottom, § 13-711(A) violations are not meaningfully
reviewable using our traditional standards of review. Accordingly, we
conclude that violations of § 13-711(A) are not amenable to structural- or
fundamental-error review, and we apply the limited-remand practice
developed in Anzivino and Harrison. Once a party establishes a § 13-711(A)
violation, appellate courts should stay the appeal and remand the case for
the trial court to correct its administrative error by explaining its sentencing
determination on the record. Thereafter, the appeal may proceed, and the
court may address arguments regarding the trial court’s sentencing
decision. This must occur regardless of whether a defendant objected
during sentencing. 1

C.

¶25 Though we approve of Anzivino’s and Harrison’s
limited-remand practice, we must qualify our approval. This is because the
Anzivino and Harrison courts went too far by remanding the defendants’
cases for resentencing. A resentencing—and all that it entails—is not
necessary to remedy a failure to substantially comply with § 13-711(A).

¶26 Indeed, as the State indicates, vacating or reversing sentences
for a § 13-711(A) violation may be unconstitutional. This is because article
6, section 27 of the Arizona Constitution tells us that “[n]o cause shall be
reversed for technical error in pleadings or proceedings when upon the
whole case it shall appear that substantial justice has been done.” In this
context, “technical errors” are errors that “do not affect the substantial
rights of the accused.” State v. Lane, 72 Ariz. 220, 227 (1951). And errors
affect “substantial rights” when there is “a reasonable probability that the
error affected the outcome” of a proceeding. See United States v. Marcus, 560
U.S. 258, 262 (2010).

1 To be clear, this is a unique remedy for a unique situation. If a defendant
does not object to the imposition of consecutive sentences in the trial
court—a different issue from substantially complying with
§ 13-711(A)—the court of appeals must review for fundamental error. See
State v. Carlson, 237 Ariz. 381, 400 ¶ 78 (2015). Alternatively, if the
defendant objects, courts must review the objection under the
harmless-error standard. Id. at 396 ¶ 52.
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STATE V. PEREZ-GUTIERREZ
Opinion of the Court

¶27 As explained above, § 13-711(A) violations do not affect
courts’ dispositions. Because these violations do not affect the outcome
courts reach, they do not affect the substantial rights of the accused and are
“technical errors” within the meaning of article 6, section 27. Thus, were
we to vacate a sentence and remand for resentencing after a violation of
§ 13-711(A)—as done in Anzivino—our constitution would be implicated.
But sending a matter back for clarification and compliance with the statute
neither disturbs a sentence nor requires resentencing. And a limited
remand also protects a victim’s right to a prompt conclusion after a
conviction. See Ariz. Const. art. 2, § 2.1(10).

¶28 Accordingly, today’s holding does not disturb
Perez-Gutierrez’s sentences. Instead, we vacate the court of appeals’
opinion and remand this matter to it with instructions to suspend
Perez-Gutierrez’s appeal and revest jurisdiction in the trial court for the
limited purpose of satisfying § 13-711(A)’s requirement that the court “state
on the record the reason for its determination.” The trial court must correct
the omission by placing on the record the reasons for its sentencing
decisions. See generally Ariz. R. Crim. P. 24.4 (“The court . . . may, at any
time, correct clerical errors, omissions, and oversights in the record.”).
Thereafter, jurisdiction revests with the court of appeals. That court must
then permit the defense an opportunity to argue that the trial court erred
by imposing consecutive sentencing and permit the State to respond to such
arguments. We abrogate Anzivino and Harrison to the extent they require
more than this.

III.

¶29 Because the circumstances presented here may recur, we
delineate best practices for trial judges and defense counsel when
confronted with a similar situation.

¶30 At the outset, there has been some confusion regarding
whether a defendant must object to an error during his or her sentencing
phase to preserve the objection on appeal. This confusion largely traces its
origins to State v. Vermuele, where the court of appeals rejected “a
requirement that counsel interrupt” a sentencing proceeding “simply to
preserve the appellate record.” 226 Ariz. 399, 402 ¶ 8 (App. 2011). We
disagree with Vermuele’s admonition. A defendant should always object in

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a timely manner to any perceived error—including violations of
§ 13-711(A). This will afford the trial court an opportunity to correct any
error and avoid an issue on appeal. We disapprove of any statement in
Vermuele suggesting otherwise.

¶31 We do not, of course, suggest that counsel should
inappropriately interrupt the court during sentencing to preserve an error.
But there is generally an opportunity to be heard at some point in the
proceeding where a timely objection can be interposed. We also encourage
trial judges to give the parties a final opportunity to be heard on the record
before the hearing concludes.

¶32 Finally, if counsel does not object to a § 13-711(A) violation at
sentencing, he or she may seek a remedy directly from the trial court.
Arizona Rule of Criminal Procedure 24.3(a) allows the court to “correct any
unlawful sentence or one imposed in an unlawful manner.” This rule
would allow the sentencing court to correct a § 13-711(A) violation prior to
appellate review. We therefore encourage counsel to challenge
non-compliance with § 13-711(A) with a Rule 24.3(a) motion if they fail to
object at sentencing.

CONCLUSION

¶33 For the foregoing reasons, we (1) vacate the court of appeals’
opinion; (2) remand for that court to suspend this appeal and revest
jurisdiction in the trial court for not more than fourteen days from the filing
date of this Opinion for the limited purpose of stating its sentencing reasons
on the record; (3) order the court of appeals to allow Perez-Gutierrez
twenty-one days from the day the trial court complies with § 13-711(A) to
amend his appeal and brief any alleged error revealed by the trial court’s
reasons for imposing consecutive sentences; and (4) order the court of
appeals to allow the State no more than seven days from the day
Perez-Gutierrez files an amended appeal to respond.

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