Frank Hoffman v. Hon. chandler/state

SUPREME COURT OF ARIZONA
En Banc

FRANK HOFFMAN, ) Arizona Supreme Court
) No. CV-12-0149-PR
Petitioner, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-SA 12-0010
THE HONORABLE TERRY L. CHANDLER, )
JUDGE OF THE SUPERIOR COURT OF ) Pima County
THE STATE OF ARIZONA, in and for ) Superior Court
the County of Pima, ) No. CR20113674
)
Respondent Judge, )
)
THE STATE OF ARIZONA; TUCSON CITY ) O P I N I O N
PROSECUTOR'S OFFICE, )
)
Real Parties in Interest. )
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable Terry L. Chandler, Judge

AFFIRMED

________________________________________________________________

Order of the Court of Appeals Division Two
Filed April 3, 2012

________________________________________________________________

MARY C. TREJO, TUCSON PUBLIC DEFENDER Tucson
By Kristina Julie Bohn, Deputy Public Defender
Attorney for Frank Hoffman
MICHAEL G. RANKIN, TUCSON CITY ATTORNEY Tucson
By Baird S. Greene, Deputy City Attorney
William F. Mills, Principal Assistant
Prosecuting City Attorney
Attorneys for State of Arizona and Tucson City Prosecutors
Office
________________________________________________________________

T I M M E R, Justice

¶1 Subsection (A)(3) of A.R.S. § 13-4033 authorizes a

defendant to appeal a post-judgment order that affects

substantial rights, while subsection (B) prohibits a defendant

in noncapital cases from directly appealing any judgment or

sentence entered pursuant to a plea agreement. We today hold

that subsection (B) bars a defendant from directly appealing a

contested post-judgment restitution order entered pursuant to a

plea agreement that contemplated payment of restitution up to a

capped amount. Any appellate review must be obtained through

post-conviction relief proceedings.

I.

¶2 The State charged Frank Hoffman with several offenses

stemming from his involvement in a traffic accident that injured

another person. Pursuant to a plea agreement, Hoffman pleaded

no contest to driving under the influence (“DUI”) and, among

other things, agreed to pay restitution up to $53,653.45. The

Tucson City Court adjudicated Hoffman guilty, imposed a term of

probation, and ordered him to pay fines, fees, and restitution

in an amount to be determined later, but not to exceed

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$53,653.45.

¶3 Approximately three months later, the court held a

contested restitution hearing and entered an order requiring

Hoffman to pay $40,933.45 in restitution. Hoffman appealed to

the superior court, which subsequently dismissed the appeal on

the State’s motion. Relying on A.R.S. § 13-4033(B) and Rule

17.1(e) of the Arizona Rules of Criminal Procedure, the court

ruled that Hoffman waived his right to directly appeal the

restitution order by entering into the plea agreement and could

challenge the order only through Rule 32 post-conviction relief

proceedings. Hoffman sought special action relief from the

court of appeals, which declined jurisdiction.

¶4 We granted review to clarify the scope of § 13-4033(B)

a purely legal issue of statewide importance. We have

jurisdiction pursuant to Article 6, Section 5(3) of the Arizona

Constitution and A.R.S. § 12-120.24.

II.

¶5 The Arizona Constitution guarantees defendants in

criminal prosecutions “the right to appeal in all cases.” Ariz.

Const. art. 2, § 24. Before 1992, a defendant could directly

appeal a judgment or sentence entered pursuant to a plea

agreement. A.R.S. § 13-4033 (1989). But the increasing number

of these appeals was straining our appellate justice system.

Ariz. State S., Fact Sheet for H.B. 2481, 40th Leg., 2d Reg.

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Sess. (Mar. 19, 1992). Consequently, the legislature

amended § 13-4033 and, among other changes, added subsection

(B), which provides: “In noncapital cases a defendant may not

appeal from a judgment or sentence that is entered pursuant to a

plea agreement or an admission to a probation violation.” 1992

Ariz. Sess. Laws 779. The legislature, however, did not change

what is now subsection (A)(3), which permits a defendant to

appeal from “[a]n order made after judgment affecting the

substantial rights of the party.” § 13-4033(A)(3).

¶6 After the legislature added subsection (B), this Court

amended Rule 17.1(e) to provide that a defendant in a noncapital

case who pleads guilty or no contest “waives the right to have

the appellate courts review the proceedings by way of direct

appeal, and may seek review only by filing a petition for post-

conviction relief pursuant to Rule 32 and, if denied, a petition

for review.” Order Amending Rule 17.1, Arizona Rules of

Criminal Procedure (Apr. 7, 1992). We have since held that a

petition for post-conviction relief is “the only

constitutionally guaranteed appeal” after a defendant enters

into a plea agreement. State v. Smith, 184 Ariz. 456, 458, 910

P.2d 1, 3 (1996); see also State v. Regenold, 226 Ariz. 378, 379

¶ 5, 249 P.3d 337, 338 (2011) (“[Rule] 32.1 provides the review

process for defendants who plead guilty.”).

¶7 Hoffman argues § 13-4033(A)(3) authorizes his appeal

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from the restitution order as a post-judgment order affecting

his substantial rights. The city court entered a “judgment” by

adjudicating Hoffman guilty of DUI. See Ariz. R. Crim. P.

26.1(a) (defining “judgment” as including a court’s adjudication

of guilt upon a defendant’s plea). Read in isolation, § 13-

4033(A)(3) would authorize Hoffman to directly appeal the post-

judgment restitution order as it indisputably affected his

“substantial rights.” But we must “strive to construe a statute

and its subsections as a consistent and harmonious whole.”

State v. Wagstaff, 164 Ariz. 485, 491, 794 P.2d 118, 124 (1990).

Thus, the issue is whether the restitution order is part of

Hoffman’s “sentence” and thus not appealable under § 13-4033(B)

¶8 We interpret § 13-4033(B) to effect the legislature’s

intent, looking first to the language of the provision. Kent K.

v. Bobby M., 210 Ariz. 279, 283 ¶ 14, 110 P.3d 1013, 1017

(2005). If the terms are ambiguous, we employ secondary

principles of statutory interpretation. Id. We review issues

of statutory interpretation de novo. State v. Arellano, 213

Ariz. 474, 477 ¶ 9, 143 P.3d 1015, 1018 (2006).

¶9 The language of subsection (B) does not reflect

whether a restitution order contemplated by a plea agreement but

entered after entry of judgment is part of a “sentence,” and the

legislature has not defined the term in A.R.S. §§ 13-105, -4033,

or elsewhere. Several reasons, however, convince us that such

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an order is part of a “sentence” for purposes of subsection

§ 13-4033(B). First, considering a post-judgment restitution

order as part of a sentence furthers the legislative goal of

eliminating direct appeals involving plea agreements. A.R.S.

§ 13-104 (providing statutes “must be construed . . . to . . .

effect the objects of the law”); Yslava v. Hughes Aircraft Co.,

188 Ariz. 380, 385, 936 P.2d 1274, 1279 (1997) (stating courts

should interpret unclear statutes “to conform with general goals

expressed in the legislative history”). Before the 1992

amendment to § 13-4033, defendants who entered into plea

agreements commonly challenged restitution orders on appeal.

See, e.g., State v. Nosie, 150 Ariz. 498, 499, 724 P.2d 584, 585

(App. 1986); State v. O’Connor, 146 Ariz. 16, 17, 703 P.2d 563,

564 (App. 1985). Although the legislature was presumably aware

of such appeals when it sought to reduce the burden on appellate

courts, cf. Taylor v. Travelers Indem. Co. of Am., 198 Ariz.

310, 317 ¶ 21, 9 P.3d 1049, 1056 (2000) (assuming legislature’s

knowledge of case law and insurance coverage needs), it did not

expressly exclude restitution orders from the ambit of § 13-

4033(B)

¶10 Second, excluding a post-judgment restitution order

entered pursuant to a plea agreement from the reach of § 13-

4033(B) would create a hybrid system of appellate review. Under

Hoffman’s view of § 13-4033(B), a defendant who pleads guilty

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could seek appellate review of a contested post-judgment

restitution order on direct appeal but would have to pursue

review of remaining issues through Rule 32 proceedings. This

dual-track review would unnecessarily burden the appellate

justice system and could lead to inconsistent results. State v.

Estrada, 201 Ariz. 247, 250-51 ¶ 16, 34 P.3d 356, 359-60 (2001)

(stating court interprets and applies statute “in a way that

will avoid an untenable or irrational result”). Cf. State v.

Ovante, 231 Ariz. 180, 184 ¶ 10, 291 P.3d 974, 978 (2013)

(construing Rule 17.1(e) so as to avoid bifurcated appeals in

capital cases).

¶11 Third, the legislature mandates restitution when a

crime victim has suffered economic loss. A.R.S. § 13-603(C).

Because this mandatory provision applies when a defendant enters

into a plea agreement, and restitution is typically imposed at

the time of sentencing, State v. Holguin, 177 Ariz. 589, 591,

870 P.2d 407, 409 (App. 1993), the term “sentence” in § 13-

4033(B) is most reasonably construed to include a post-judgment

restitution order.

¶12 Hoffman points out that after the 1992 amendment to

§ 13-4033, appellate courts have continued to assume

jurisdiction over direct appeals of post-judgment orders by

defendants who had entered plea agreements. But with two

exceptions, see infra ¶¶ 13-14, none of the cases Hoffman cites

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concerned a challenge to an order entered as a direct

consequence of a plea agreement’s terms. See Regenold, 226

Ariz. at 380 ¶ 12, 249 P.3d at 339 (reviewing sentence imposed

as consequence of a contested probation violation); State v.

Ponsart, 224 Ariz. 518, 521-22 ¶¶ 2-12, 233 P.3d 631, 634-35

(App. 2010) (same); State v. Delgarito, 189 Ariz. 58, 59, 938

P.2d 107, 108 (App. 1997) (involving a challenged order

designating an offense as a felony although offense left

undesignated at time of guilty plea and disposition). Moreover,

since 1992, appellate courts have routinely dismissed appeals of

post-judgment orders that challenged plea agreement terms. See,

e.g., Fisher v. Kaufman, 201 Ariz. 500, 501 ¶¶ 5-6, 38 P.3d 38,

39 (App. 2001) (noting that § 13-4033(B) precludes direct appeal

of post-judgment order requiring defendant to continue sex

offender registration because registration was contemplated in

plea agreement); State v. Jimenez, 188 Ariz. 342, 344-45, 935

P.2d 920, 922-23 (App. 1996) (stating that § 13-4033(B)

prohibited pleading defendant from directly appealing denial of

motion to modify conditions of probation imposed at sentencing).

¶13 Hoffman cites two cases involving challenges to orders

entered as a direct consequence of plea agreements. In State v.

Foy, 176 Ariz. 166, 167, 859 P.2d 789, 790 (App. 1993), the

court of appeals reviewed a post-judgment restitution order

entered pursuant to a plea agreement. But because the court

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assumed jurisdiction without commenting on the impact of § 13-

4033(B), that decision is not persuasive with regard to the

statute’s meaning.

¶14 In State v. Unkefer, the court of appeals addressed

the propriety of an order authorizing the state and a victim to

record and enforce a restitution order twenty years after the

trial court had ordered the defendant to pay the restitution

amount pursuant to a plea agreement’s terms. 225 Ariz. 430, 432

¶¶ 3-5, 239 P.3d 749, 751 (App. 2010). In a footnote, without

explanation or citation to § 13-4033(B), the court assumed

jurisdiction pursuant to § 13-4033(A)(3). Id. at 433 ¶ 6 n.4,

239 P.3d at 752 n.4. As with Foy, because Unkefer did not

consider § 13-4033(B), it does not alter our interpretation of

that provision. To the extent Foy and Unkefer conflict with our

interpretation of § 13-4033 in circumstances like the one before

us, we disapprove those cases.

¶15 Hoffman additionally argues that because the state may

appeal a post-judgment restitution order that affects its

substantial rights or those of a victim, see A.R.S. § 13-

4032(4), it would be absurd to interpret § 13-4033(B) as

prohibiting a defendant from appealing the same order. We

disagree. Because the state cannot file a Rule 32 petition to

obtain appellate review, it is not inconsistent in this context

to authorize direct appeal for the state but deny it to

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defendants. Both parties are given a single route for appellate

review.

¶16 Hoffman further argues it would be meaningless for

§ 13-4033(A)(3) to authorize a direct appeal of a contested

restitution order entered after judgment only to have § 13-

4033(B) eliminate that right. Again, we disagree. Subsection

(A)(3) applies generally to all post-judgment orders affecting a

defendant’s substantial rights; subsection (B) provides an

exception when such orders are entered pursuant to plea

agreements. See State v. Baca, 187 Ariz. 61, 66, 926 P.2d 528,

533 (App. 1996) (holding that § 13-4033(B) “impliedly amended”

now-renumbered § 13-4033(A)(3)). In other words, when

subsection (B) applies, subsection (A) cannot be invoked to

authorize a direct appeal.

¶17 We reject Hoffman’s related contention that the

restitution order in this case was not entered “pursuant to a

plea agreement” because he contested the amount. Although

restitution was not precisely calculated in the plea agreement,

Hoffman agreed to pay restitution not to exceed a capped amount

and explicitly waived his right to pursue a direct appeal. See

State v. Phillips, 152 Ariz. 533, 535, 733 P.2d 1116, 1118

(1987) (holding that a defendant thoroughly understands the

consequences of an agreement to make restitution when plea

agreement caps the amount that may be ordered). Even though

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Hoffman contested the amount of restitution eventually entered,

because this amount did not exceed the cap, it was entered as a

direct consequence of the plea agreement, and § 13-4033(B)

therefore applied. Cf. Regenold, 226 Ariz. at 379 ¶ 8, 249 P.3d

at 338 (noting that when a plea agreement states a range of

sentences, the pleading defendant receives sentence “pursuant

to” the agreement when the sentence is ultimately imposed).

¶18 Finally, Hoffman argues that the grounds for relief

under Rule 32.1 might not encompass a challenge to a post-

judgment restitution order based on trial error that did not

deprive the defendant of constitutional rights. Therefore, he

contends, the legislature must have intended to permit direct

appeal of such orders pursuant to § 13-4033(A). We reject this

argument because its premise is flawed. As the State concedes,

Hoffman is entitled to challenge the restitution order through

Rule 32 proceedings because he has a constitutional right to

appellate review. Ariz. Const. art. 2, § 24; Smith, 184 Ariz.

at 458, 910 P.2d at 3 (observing that the “constitutional

guarantee of appellate review in all cases is effectuated for

pleading defendants” through Rule 32). We trust that courts

will broadly interpret Rule 32 to preserve the rights of

pleading defendants to appellate review.

III.

¶19 For the foregoing reasons, we hold that A.R.S. § 13-

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4033(B) bars a defendant from directly appealing a contested

post-judgment restitution order entered pursuant to a plea

agreement that contemplated payment of restitution and capped

the amount. In such situations, a pleading defendant must

vindicate the constitutionally guaranteed right of appellate

review through Rule 32 post-conviction relief proceedings. We

therefore affirm the superior court’s order dismissing Hoffman’s

appeal.

_______________________________________
Ann A. Scott Timmer, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Scott Bales, Vice Chief Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Robert M. Brutinel, Justice

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