State v. Hons. brearcliffe/vasquez

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,
Petitioner,

v.

H ONS. SEAN E. BREARCLIFFE, G ARYE L. VASQUEZ, AND KARL C. EPPICH,
JUDGES OF THE STATE OF ARIZONA, IN AND FOR COURT OF APPEALS,
D IVISION TWO,
Respondents,

PHILLIP MATHEW JOHNSON,
Real Party in Interest.

No. CV-21-0174-SA
Filed March 24, 2023

Appeal from the Superior Court in Pima County
The Honorable Howard J. Fell, Judge Pro Tempore
No. CR20171194-001
REMANDED

Order of the Court of Appeals, Division Two
No. 2 CA-CR 20-0070
Filed June 30, 2021
VACATED

COUNSEL:

Kristen K. Mayes, Arizona Attorney General, Joshua Bendor, Solicitor
General, Tanja K. Kelly, Jacob R. Lines (argued), Assistant Attorneys
General, Criminal Appeals Section, Tucson, Attorneys for State of Arizona
 STATE V. HONS. BREARCLIFFE/VASQUEZ ET AL.
Opinion of the Court

Amy P. Knight (argued), Knight Law Firm, PC, Tucson, Attorney for Phillip
Matthew Johnson

Pima County Public Defender’s Office, Sarah L. Mayhew (argued), Deputy
Public Defender, Tucson; and Pima County Legal Defender’s Office, Robb
P. Holmes, Deputy Legal Defender, Tucson, Attorneys for Amici Curiae
Pima County Public Defender’s Office and Pima County Legal Defender’s
Office

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 Under A.R.S. § 13-4033(C),1 if a defendant’s absence prevents
sentencing from occurring within ninety days after conviction, the
defendant cannot appeal unless it is proven “by clear and convincing
evidence at the time of sentencing that the absence was involuntary.” In
this case, we consider the safeguards that must be afforded a defendant
before the right to appeal can be divested under § 13-4033(C). We conclude
that before the right to appeal is abrogated: (1) the defendant must receive
notice that the right may be waived if his or her absence prevents
sentencing from occurring within ninety days after conviction; (2) the
waiver must be knowing, intelligent, and voluntary; and (3) the defendant
must be provided an opportunity at sentencing to prove by clear and
convincing evidence that the absence was involuntary.

1 The legislature amended § 13-4033 effective January 1, 2023. See
2021 Ariz. Sess. Laws ch. 432, § 2 (1st Reg. Sess.). Here, we cite the version
of § 13-4033 in effect at the time of sentencing. See State v. Newton, 200 Ariz.
1, 2 ¶ 3 (2001).
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Opinion of the Court

BACKGROUND

¶2 In March 2017, Phillip Johnson was indicted on several felony
offenses. At his initial appearance and arraignment, in compliance with
Arizona Rule of Criminal Procedure 14.4(e)(6), 2 the trial court advised
Johnson that if he was convicted at trial and his absence prevented the court
from sentencing him within ninety days of his conviction, he could lose his
right to a direct appeal. At this proceeding, Johnson signed a document
that included the following admonition: “I know if I fail to appear at court
the court case and any trial can continue in my absence and that if I fail to
appear for sentencing within 90 days of my conviction, I may lose my right
to a direct appeal.”

¶3 About two years later, Johnson’s trial began. Johnson was
present for all four days but, on the afternoon of the fourth day, he fled to
California. The jury convicted him of multiple offenses and the court issued
a warrant for his arrest. On January 23, 2020, 167 days after his conviction,
he was arrested.

¶4 At sentencing, Johnson offered no explanation regarding his
absence and the resultant delay in sentencing. At the conclusion of the
hearing, the court advised Johnson that, “[b]ecause you had the trial . . . you
have, as you know, the right to appeal.” The State did not assert, at the
time, that Johnson had waived his right to appeal under § 13-4033(C).

¶5 Johnson filed a notice of appeal. The State then filed a motion
to dismiss for lack of subject matter jurisdiction, arguing that the court of
appeals did not have jurisdiction over Johnson’s appeal under § 13-4033(C)
and State v. Bolding, 227 Ariz. 82 (App. 2011). The State also argued the
court of appeals wrongly decided State v. Raffaele, 249 Ariz. 474 (App. 2020),

2 Although this rule was numbered differently at the time of
Johnson’s conviction in 2017, we refer to the current rule throughout
because the substance remained the same and the parties referenced this
version throughout the appellate proceedings.
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Opinion of the Court

asserting that the court erroneously interpreted § 13-4033(C) as imposing a
fact-finding requirement on trial courts.

¶6 The court of appeals denied the motion. A specially
concurring judge agreed that Bolding allows for an implied waiver rather
than an express waiver. Nonetheless, this judge reasoned that a trial court
finding is required and that Raffaele does not contradict Bolding because
Bolding does not dictate how or when the trial court must make such a
finding.

¶7 We granted review to determine whether § 13-4033(C)
requires notice at sentencing and an opportunity to show that the absence
was involuntary. This is a question of statewide concern and is likely to
recur. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona
Constitution.

DISCUSSION

¶8 “We review questions of statutory interpretation de novo.”
Am. Civ. Liberties Union of Ariz. v. Ariz. Dep’t of Child Safety, 251 Ariz. 458,
461 ¶ 11 (2021).
I.

¶9 In Arizona, criminal defendants have a constitutional “right
to appeal in all cases.” Ariz. Const. art. 2, § 24. The legislature later
specified that a defendant may appeal a “final judgment of conviction.” See
§ 13-4033(A)(1). Like most constitutional rights, the right to appeal a
criminal conviction can be waived, Bolding, 227 Ariz. at 88 ¶ 18, and a
defendant can affirmatively waive this constitutional right “as long as the
waiver is knowing, voluntary[,] and intelligent.” State v. Hampton, 208 Ariz.
241, 243–44 ¶ 7 (2004) (discussing the ways a defendant can waive the right
to counsel). However, even without an affirmative waiver, a defendant can
“implicitly waive” a constitutional right by engaging in certain conduct. Id.
at 244 ¶ 7; see also State v. Greenawalt, 128 Ariz. 150, 158 (1981) (recognizing
implicit waiver of the right to remain silent); State v. Hall, 136 Ariz. 219, 222
(App. 1983) (recognizing implicit waiver of the right to be present at trial).
In some circumstances, “dilatory conduct” by a defendant will support a
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Opinion of the Court

finding that the defendant waived a constitutional right. See Hampton,
208 Ariz. at 244 ¶ 7. Importantly, an implicit waiver can occur only after
the court warns a defendant that his or her conduct may result in the loss
of the right. Id.

¶10 Additionally, it is well-established that the burden of proving
waiver of a constitutional right falls on the state. See Brewer v. Williams, 430 U.S. 387, 404 (1977) (observing that “it was incumbent upon the state to
prove ‘an intentional relinquishment or abandonment of a known right or
privilege.’” (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938))); Barker v.
Wingo, 407 U.S. 514, 529 (1972) (stating that, for claimed waiver of
fundamental rights, the Supreme Court has “placed the entire
responsibility on the prosecution to show that the claimed waiver was
knowingly and voluntarily made”).

II.

A.

¶11 We granted review to determine whether § 13-4033(C)
requires prior notice of its application and an opportunity at sentencing to
prove that the absence was involuntary.

¶12 Section 13-4033(C) states: “A defendant may not appeal under
subsection A, paragraph 1 or 2 of this section if the defendant’s absence
prevents sentencing from occurring within ninety days after conviction and
the defendant fails to prove by clear and convincing evidence at the time of
sentencing that the absence was involuntary.” (Emphasis added.) “To
determine a statute’s meaning, we look first to its text,” State v. Burbey, 243 Ariz. 145, 147 ¶ 7 (2017), and we give words “their ordinary meaning
unless it appears from the context or otherwise that a different meaning is
intended.” Arizona ex rel. Brnovich v. Maricopa Cnty. Cmty. Coll. Dist. Bd.,
243 Ariz. 539, 541 ¶ 7 (2018) (quoting State v. Miller, 100 Ariz. 288, 296
(1966)). Section 13-4033(C)’s structure reveals that it contains two distinct
provisions: (1) its predicate provision outlines the circumstances under
which a defendant’s actions may constitute a waiver of the right to appeal,

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Opinion of the Court

and (2) its subsequent provision describes the defendant’s obligation and
opportunity to prove that his or her absence was involuntary.

¶13 Notably, the language of the statute itself commands that
there be an opportunity for the defendant to prove that his or her absence
was involuntary before the right to appeal is divested. § 13-4033(C). The
statute precludes an appeal only if both conditions are met. Id. The first
and second conditions are joined with the conjunction “and,” which
indicates that both are equally important. Id. Moreover, the ordinary
meaning of the words in the subsequent provision also supports this
conclusion. For example, “fail” means “to fall short” or “to be
unsuccessful.” Fail, Merriam-Webster, https://www.merriam-webster
.com/dictionary/fail (last visited Mar. 2, 2023). A defendant naturally
cannot “fall short” or “be unsuccessful” in proving the involuntary nature
of the absence if he or she is never afforded the opportunity to succeed.
Therefore, the text necessarily requires that the trial court explicitly afford
a defendant an opportunity to prove the involuntary nature of his or her
absence.

¶14 Given this understanding of § 13-4033(C)’s text, we now turn
to case law that has interpreted this statute.

B.

¶15 The seminal case construing § 13-4033(C)’s enforceability is
Bolding. See, e.g., State v. Sahagun-Llamas, 248 Ariz. 120, 127 ¶ 28 (App. 2020)
(relying heavily on Bolding in construing § 13-4033(C)). In Bolding, the court
of appeals concluded that a defendant may waive the right to appeal “only
if the waiver is knowing, voluntary, and intelligent.” 227 Ariz. at 88 ¶ 18.
The court further stated that the “absence [of a defendant] is voluntary if
the defendant had personal notice of the time of the proceeding, the right
to be present at it, and a warning that the proceeding would go forward in
his or her absence should he or she fail to appear.” Id. ¶ 19 (alteration in
original) (quoting Ariz. R. Crim. P. 9.1). Because the defendant in Bolding
was never warned that delaying sentencing could result in losing his right
to appeal, the court could not infer waiver from the record, and § 13-4033(C)

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Opinion of the Court

could not “be applied to [the defendant] in a constitutional manner.”
Id. ¶ 20.

¶16 Combining the plain meaning of § 13-4033(C) with Bolding’s
notice requirement as a condition of constitutional application, we conclude
that § 13-4033(C) is enforceable only if the defendant’s waiver is determined
to be knowing, voluntary, and intelligent. To prove this, the state is
required to show that the defendant was notified that delaying sentencing
by absconding for more than ninety days could result in a waiver of the
right to appeal. Because this right is a constitutional guarantee, until this
predicate is established, impliedly or otherwise, § 13-4033(C) does not
trigger the defendant’s obligation to prove the absence was involuntary.
Additionally, because the defendant may only disprove the voluntary
nature of an absence at sentencing, the statute implicitly requires the court
to affirmatively give the defendant the opportunity to make that showing
to avoid waiving his or her appellate rights.

¶17 Here, the first part of § 13-4033(C) was satisfied. The trial
court advised Johnson that if he was convicted at trial and his absence
prevented the court from sentencing him within ninety days of his
conviction, he could lose his right to appeal. Johnson also signed a
document acknowledging this admonition. However, because the trial
court did not inform Johnson at sentencing that he had the opportunity to
avoid waiving his right to appeal under § 13-4033(C) if he proved that his
absence was involuntary, he was not afforded the requisite opportunity to
present evidence regarding his absence at sentencing. Instead, the trial
judge erroneously advised Johnson that he had a right to appeal. Because
§ 13-4033(C) is designed to preclude the right to appeal to an absconding
defendant who fails to prove that his absence from sentencing was
involuntary, the proper relief is not to restore the right to a nonqualifying
defendant. Instead, the proper remedy is to remand the case for a hearing
to permit Johnson to attempt to prove that his absence was involuntary.

III.

¶18 Lastly, we address two additional issues raised by the parties.
First, the State asserts that the court of appeals erred in relying on Raffaele,
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Opinion of the Court

249 Ariz. 474, in denying its motion to dismiss Johnson’s appeal. The State
contends that Raffaele improperly expanded Bolding by requiring trial courts
to make an express finding that the defendant’s waiver of the right to
appeal was knowing, voluntary, and intelligent. See Raffaele, 249 Ariz.
at 478–79 ¶¶ 12–13, 15. Though the specially concurring judge endeavored
to reconcile the alleged disparities between Bolding and Raffaele, we
disavow Raffaele to the extent it may be construed to require trial courts to
find that a defendant expressly waived the right to appeal. This
interpretation of § 13-4033(C) requires more from trial courts than is
statutorily required. See Part II(B).

¶19 The best practice for a trial court would be to make an express
finding on waiver. However, in the absence of a trial court finding of an
implied waiver, a reviewing court on appeal may examine the record and
determine whether the defendant proved that the absence was involuntary
if the trial court notified the defendant at sentencing of the right to rebut an
implied waiver. See State v. Evans, 125 Ariz. 401, 403 (1980) (“In any
determination of whether there has been a competent waiver of
constitutional rights, the better practice would be for the trial judge to make
specific findings, but if the record is adequate[,] the absence of specific
findings is not reversible error.”).

¶20 Second, Johnson argues that § 13-4033(C) is unconstitutional
because it is a procedural law that usurps this Court’s rulemaking
authority. We disagree.

¶21 Article 6, section 5(5) of the Arizona Constitution gives this
Court exclusive authority over procedural rulemaking. “The legislature
may properly enact statutory procedures that supplement, rather than
conflict with, rules this Court has promulgated, but ‘in the event of
irreconcilable conflict between a procedural statute and a rule, the rule
prevails.’” Duff v. Lee, 250 Ariz. 135, 138 ¶ 12 (2020) (quoting Seisinger v.
Siebel, 220 Ariz. 85, 89 ¶ 8 (2009)). Accordingly, we first determine whether
an irreconcilable conflict exists between the statute and the rule. If no
conflict exists, we do not need to determine whether the statute is
substantive or procedural. See Duff, 250 Ariz. at 139 ¶¶ 12, 20.

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Opinion of the Court

¶22 In construing statutes and court rules, we apply
“fundamental principles of statutory construction, the cornerstone of which
is the rule that the best and most reliable index of a statute’s meaning is its
language and, when the language is clear and unequivocal, it is
determinative of the statute’s construction.” State v. Hansen, 215 Ariz. 287,
289 ¶ 7 (2007) (quoting Deer Valley Unified Sch. Dist. No. 97 v. Houser,
214 Ariz. 293, 296 ¶ 8 (2007)). Also, when conducting this analysis, “[w]e
do not hastily find a clash between a statute and court rule,” Graf v.
Whitaker, 192 Ariz. 403, 406 ¶ 11 (App. 1998), and “avoid interpretations
that unnecessarily implicate constitutional concerns,” Scheehle v. Justices of
the Sup. Ct. of Ariz., 211 Ariz. 282, 288 ¶ 16 (2005). Thus, the rules and
statutes “should be harmonized wherever possible and read in conjunction
with each other.” Hansen, 215 Ariz. at 289 ¶ 7 (quoting Phx. of Hartford, Inc.
v. Harmony Rests., Inc., 114 Ariz. 257, 258 (App. 1977)).

¶23 Johnson asserts that § 13-4033(C) is an invalid procedural law
because it conflicts with Arizona Rule of Criminal Procedure 31.13(a).
Johnson misconstrues the rule. Rule 31.13(a)(1) outlines the timeframe for
filing an opening brief and provides that “[i]f an appellant does not timely
file an opening brief, the appellate court may dismiss the appeal on motion
or on its own.” Reading Rule 31.13(a) in conjunction with § 13-4033(C), we
conclude that Rule 31.13(a) does not constitute an “irreconcilable conflict”
with § 13-4033(C). The rule contemplates the possible dismissal of an
untimely filed brief, while § 13-4033(C) provides for something entirely
different—the revocation of a defendant’s right to appeal if the
circumstances specified in the statute are established. Consequently, no
conflict exists between § 13-4033(C) and Rule 31.13(a).

¶24 Moreover, Johnson fails to account for the relationship
between Rule 14.4(e)(6) and § 13-4033(C). Rule 14.4(e)(6) requires the trial
court to inform a defendant that the right to appeal may be lost if the
defendant’s absence causes sentencing to be delayed more than ninety days
after conviction. Again, reading the statute in conjunction with
Rule 14.4(e)(6) does not reveal any conflict, much less an irreconcilable one.
In fact, Rule 14.4(e)(6) supplements and supports § 13-4033(C)’s directive.
Accordingly, because no conflict exists between § 13-4033(C) and

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Opinion of the Court

Rules 14.4(e)(6) and 31.13(a), we need not determine whether § 13-4033(C)
is substantive or procedural. See Duff, 250 Ariz. at 139 ¶¶ 12, 20.

CONCLUSION

¶25 We vacate the court of appeals’ order and remand to the trial
court to provide Johnson an opportunity under § 13-4033(C) to “prove by
clear and convincing evidence at the time of sentencing that the absence
was involuntary.”

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