Opinion
No. 2 CA-CR 2018-0200
05-06-2019
THE STATE OF ARIZONA, Appellee, v. DAVID RUSSELL CHRISTENSEN, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Alice Jones, Assistant Attorney General, Phoenix Counsel for Appellee James Fullin, Pima County Legal Defender By Stephan J. McCaffery, Assistant Legal Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Appeal from the Superior Court in Pima County
No. CR20170704001
The Honorable Michael Butler, Judge
APPEAL DISMISSED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Alice Jones, Assistant Attorney General, Phoenix
Counsel for Appellee
James Fullin, Pima County Legal Defender
By Stephan J. McCaffery, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Judge Vásquez concurred.
BREARCLIFFE, Judge:
¶1 David Russell Christensen appeals from a restitution order entered after he pleaded guilty to one count of aggravated harassment. We dismiss the appeal for lack of jurisdiction.
Factual and Procedural History
¶2 On November 30, 2016, M.R., the victim, obtained an injunction against workplace harassment against Christensen and had it served upon him. Christensen was later indicted on three counts of aggravated harassment for violating the injunction. Pursuant to a plea agreement, he pleaded guilty to one count as a class six, undesignated offense.
¶3 The plea agreement recites standard terms as to Christensen's exposure to fines and fees as a consequence of either a felony or misdemeanor conviction, and separately states that "[t]his case does not involve restitution to any victim." The agreement also states that Christensen is waiving "any right to raise and/or appeal any and all . . . restitution orders . . . and to the court's entry of judgment against and imposition of sentence upon [him] consistent with this negotiated agreement."
¶4 At the June 2017 sentencing, notwithstanding the term of the plea agreement as to restitution, the victim requested restitution in the amount of $2,647.10. After Christensen initially objected to any award of restitution, he and the state agreed that the trial court could impose a fine as a consequence of conviction, and that any fine could be made payable to the victim in lieu of restitution. As the sentencing hearing continued, the court adjudged Christensen guilty of the offense, designated the offense a misdemeanor, and sentenced him to eighteen-months' probation. The court then assessed all other fines and fees attendant to the conviction, but
for the restitutionary fine as to which the court retained jurisdiction. A restitution hearing was then set for September 2017.
¶5 At the September 2017 restitution hearing, the victim requested more than $2,700 in restitution, but the state conceded that the restitution would be capped at $2,500, the maximum fine for a misdemeanor conviction. The trial court granted restitution in the amount of $1,795.
¶6 Christensen filed a notice of post-conviction relief followed by a petition in which he sought, inter alia, relief under Rule 32.1(f), permission to file a delayed notice of appeal, and a stay of the Rule 32 proceeding as to the remaining claim, which was a challenge to the restitution order, pending resolution of the appeal. The court granted both leave to file a delayed notice of appeal and the stay. Christensen thereafter filed a delayed notice of appeal, challenging the restitution order.
Jurisdiction
¶7 After Christensen filed his opening brief, the state filed a motion to dismiss the appeal for lack of jurisdiction, which we denied. Nevertheless, we are "a court of limited jurisdiction and ha[ve] only jurisdiction specifically given to [us] by statute," State v. Eby, 226 Ariz. 179, ¶ 3 (App. 2011) (quoting Campbell v. Arnold, 121 Ariz. 370, 371 (1979)), and we have an independent duty to examine our own jurisdiction, Desert Palm Surgical Grp., P.L.C. v. Petta, 236 Ariz. 568, ¶ 15 (App. 2015). We must always ensure, at whatever stage, that we have jurisdiction over the appeal. See State v. Kalauli, 243 Ariz. 521, ¶ 4 (App. 2018). And our own conclusion that we have jurisdiction, if wrong, does not confer jurisdiction on us. See, e.g., Garza v. Swift Transp. Co., 222 Ariz. 281, ¶¶ 1, 29 (2009) (vacating court of appeals' memorandum decision because it lacked jurisdiction).
¶8 "The Arizona Constitution guarantees defendants in criminal prosecutions 'the right to appeal in all cases.'" Hoffman v. Chandler, 231 Ariz. 362, ¶ 5 (2013) (quoting Ariz. Const. art. II, § 24). Generally, we have "[a]ppellate jurisdiction in all actions and proceedings originating in or permitted by law to be appealed from the superior court." A.R.S. § 12-120.21(A)(1). Specifically, with respect to direct criminal appeals, a defendant may appeal "[a]n order made after judgment affecting the substantial rights of the party," A.R.S. § 13-4033(A)(3), such as restitution, see State v. Fancher, 169 Ariz. 266, 266 n.1 (App. 1991) ("[T]he order of restitution is a separately appealable order." (quoting State v. French, 166 Ariz. 247, 248 n.3 (App. 1990))); see also State v. Lewis, 222 Ariz. 321, ¶ 4 (App.
2009) (having jurisdiction over restitution under § 13-4033). However, a defendant in a noncapital case is not permitted to "appeal from a judgment or sentence that is entered pursuant to a plea agreement." § 13-4033(B). As our supreme court held in Hoffman, a defendant is precluded from appealing a contested post-judgment restitution order that was entered pursuant to a plea agreement. 231 Ariz. 362, ¶ 1.
¶9 We see no meaningful distinction between the case before us and Hoffman. In Hoffman, the defendant appealed a restitution award entered after he pleaded no contest to driving under the influence of an intoxicant. Id. ¶¶ 2-3. The plea agreement provided that Hoffman was to pay restitution up to a stated amount. Id. ¶ 2. The Tucson City Court adjudged Hoffman guilty, placed him on probation, and ordered him "to pay fines, fees, and restitution in an amount to be determined later." Id. Following a contested restitution hearing, held about three months later, the court ordered Hoffman to pay restitution in an amount below the maximum amount stated in the plea agreement. Id. ¶ 3.
¶10 Hoffman appealed the order of restitution to the superior court, which granted the state's motion to dismiss, finding that, pursuant to § 13-4033(B) and Rule 17.1(e), Ariz. R. Crim. P., Hoffman had waived his right to directly appeal and his only remedy was to seek relief pursuant to Rule 32. Id. This court declined to accept jurisdiction of Hoffman's special-action petition, but the supreme court granted review to address this legal question of statewide importance. Id. ¶ 4. Hoffman argued that he was entitled to appeal the restitution award as a "post-judgment order affecting his substantial rights." Id. ¶ 7.
¶11 Our supreme court held that the restitution order was part of the sentence imposed pursuant to Hoffman's plea agreement and therefore any appeal was barred by § 13-4033(B). Id. ¶¶ 9, 19. It reasoned that such an interpretation was in accord with the legislature's goal in enacting § 13-4033(B), of reducing the burden on appellate courts by eliminating direct appeals involving plea agreements. Id. ¶ 9. It further reasoned that, because restitution is mandatory when a crime victim has suffered economic loss, even when a defendant has pleaded guilty, an award of restitution is part of the pleading defendant's sentence, whether imposed after the sentencing hearing or at the time of sentencing. Id. ¶ 11.
¶12 Here, as in Hoffman, the restitution order, albeit entered months after the adjudication of guilt and imposition of probation, was plainly part of the sentence that was imposed as a result of Christensen's guilty plea. As such, "it was entered as a direct consequence of the plea
agreement, and § 13-4033(B) therefore applied." Id. ¶ 17. Moreover, whether the amount awarded was entered as restitution in name or in effect as a fine is immaterial. Pursuant to A.R.S. § 13-603(D), when a defendant is placed on probation, the trial court has the authority to impose a fine. And, when imposing a fine, the court may order the fine payable to the victim as restitution, rather than to the state, under A.R.S. § 13-804(A). See also State v. King, 157 Ariz. 508, 509-10 (1988) ("[T]he trial court may impose a fine on the defendant and order that all or any portion of the fine imposed . . . be allocated to the victim . . . .").
¶13 Finally, in his reply brief, Christensen argues that the state is procedurally barred from relitigating facts presumably found during a Rule 32 hearing that would support this court's jurisdiction. It is unclear what facts Christensen is alluding to apart from the procedural history of the case; nonetheless, the matter of our jurisdiction is a legal question, not a factual question. See State v. Bejarano, 219 Ariz. 518, ¶ 2 (App. 2008) (court of appeals jurisdiction "question of law and statutory interpretation").
Disposition
¶14 Because the restitution awarded here was pursuant to a plea agreement, albeit one imposed as a fine and distributed to a victim as restitution, the award was part of Christensen's sentence and direct appeal of the award is barred by § 13-4033(B) and Rule 17.1(e). We accordingly dismiss the appeal.