Opinion
No. 1 CA-CR 11-0143
11-17-2011
STATE OF ARIZONA, Appellee, v. JEREMY JAY SALT, Appellant.
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
COCONINO County Superior Court No. CR2010-00546
DECISION ORDER
Presiding Judge Ann A. Scott Timmer, and Judges Patrick Irvine and Daniel A. Barker, have considered this appeal and for the reasons stated below dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
Jeremy Jay Salt was indicted for aggravated assault, a domestic violence offense and class four felony, and disorderly conduct, a class one misdemeanor. He pled guilty to both offenses, and the trial court accepted his pleas.
At sentencing, the trial court found four aggravating circumstances and two mitigating circumstances. After weighing the aggravating and mitigating circumstances, the trial court imposed the maximum aggravated 3.75-year term of imprisonment for aggravated assault, with credit for 204 days' presentence incarceration. The trial court sentenced Salt to time served for disorderly conduct.
Salt appeals his aggravated sentence and argues the sentence was imposed in an illegal manner and must be vacated. Relying on Arizona Revised Statutes ("A.R.S.") section 13-4033(B) (2010), he contends he has the right to a direct appeal because he "entered a plea of guilty without entering into a plea agreement." Subsection (B) of the statute precludes a direct appeal "from a judgment or sentence that is entered pursuant to a plea agreement." Id.
The State argues it is not the statute that divests this court of jurisdiction, but Salt's express waiver of his right to appeal that does. The State notes Salt knowingly, intelligently, and voluntarily waived his right to a direct appeal, as contemplated by Arizona Rule of Criminal Procedure 17.2(e), and authorized by State v. Wilson, 174 Ariz. 564, 567, 851 P.2d 863, 866 (App. 1993).
Salt replies the State has waived this argument because it did not raise the argument in the trial court. Salt further contends the State is barred by laches from raising the argument because it "sought three continuances for the filing of a responsive brief before raising the waiver issue even though a motion to dismiss the appeal could have been filed at any time."
Finally, Salt contends the record does not support a knowing and voluntary waiver of the right to appeal his sentence. Citing to the change of plea colloquy below, he concludes "[a]t most, [Salt] knowingly, voluntarily and intelligently waived the right to file an appeal in which he could request that his plea be vacated."
DISCUSSION
As to Salt's waiver and laches arguments, this court examines cases before it to determine if we have jurisdiction, whether or not the issue is raised by the parties. State v. Holland, 153 Ariz. 536, 538, 738 P.2d 1143, 1145 (App. 1987). The record in this matter reflects that Salt knowingly, voluntarily, and intelligently waived his right to a direct appeal. At the change-of-plea hearing, the trial court advised Salt in part:
THE COURT: If you plead guilty, you also give up the right to file a direct appeal. That means that once the Court accepts your plea of guilty, you cannot change your mind or withdraw from this guilty plea unless you file a petition for
post-conviction relief within 90 days of sentencing.
In it you must demonstrate that a terrible injustice would occur under this plea. If the Court denies your petition, you can petition the Court of Appeals for a -- for a review of the Court's decision, but that review may not be granted. Do you understand?
THE DEFENDANT: Yes, I do, Your Honor.
THE COURT: Did you go over this with your attorney?
THE DEFENDANT: Yes.
THE COURT: Do you want to give up your right to file a direct appeal and plead guilty?
THE DEFENDANT: Yes, I do.
We need not decide whether A.R.S. § 13-4033(B), which precludes a direct appeal "from a judgment or sentence that is entered pursuant to a plea agreement," also precludes a direct appeal when a defendant does not plead guilty pursuant to a plea agreement, because as noted the record reflects Salt waived his right to a direct appeal. Constitutional rights, including the right to appeal, see Ariz. Const. art. 2, § 24, may be waived, as long as the waiver is knowing, voluntary, and intelligent. See Wilson, 174 Ariz. at 567, 851 P.2d at 866.
Although Salt is correct that § 13-4033(B) substantively precludes a direct appeal from a judgment or sentence entered pursuant to a plea agreement, limiting such individuals to appellate review under Arizona Rule of Criminal Procedure 32, we nonetheless find that Rules 17.1(e) and 17.2(e), which state that all pleading defendants waive the right to appellate review, do not conflict with the statute. Importantly, the record here shows that Salt not only waived his right to appeal at the change-of-plea hearing, but he also signed a "NOTICE OF RIGHTS OF REVIEW AFTER CONVICTION" indicating he understood he did "not have a right to appeal if [he] . . . pleaded guilty." Therefore, assuming without deciding, that a defendant who pleads guilty without a plea agreement is entitled to a direct appeal, the statute does not take away that which the rule acknowledges, specifically, that a pleading defendant can waive the right to appeal, as long as that waiver is knowing and intelligent. See Ariz. R. Crim. P. 17.1(e) and 17.2(e).
Rule 17.1(e) states in part that "[b]y pleading guilty . . . a defendant 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 . . . ." Rule 17.2(e) requires the trial court to advise defendants in part that "by pleading guilty . . . the defendant will waive 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 . . . ."
CONCLUSION
The record reflects Salt's waiver of his right to a direct appeal was knowing, voluntary, and intelligent. As explained to him at the change-of-plea hearing, and communicated to him in his notice of rights of review after conviction, his only relief "may be sought [] by petition for post-conviction relief." Therefore, we dismiss this appeal.
Ann A. Scott Timmer
Presiding Judge