State v. Tapp

CORCORAN, Judge,

dissenting:

The Constitution of the State of Arizona provides:

In criminal prosecutions, the accused shall have ... the right to appeal in all cases....

Ariz. Const, art. 2, § 24. The Supreme Court of Arizona has stated that “... this right [of appeal] will not be denied.” State v. Goldsmith, 112 Ariz. 399, 400, 542 P.2d 1098, 1099 (1976).

The duty of the reviewing appellate court is defined by statute:

Scope of review by supreme court on appeals.
A. Upon appeal from a final judgment of conviction, the supreme court shall review all rulings affecting the judgment.
B. Upon an appeal taken by a defendant from the judgment, the supreme court shall review the entire record.

A.R.S. § 13-4035.

Rules adopted by the Supreme Court further define the obligation of the appellate courts.

Insufficient record; failure to take appeal within time prescribed. No criminal appeal shall be dismissed if sufficient matter or substance is contained in the record to enable this court to decide the appeal on its merits, but the appeal may be dismissed if it is not taken within the time prescribed by law or rules of court, or if the matter or substance contained in the record is not sufficient to enable the court to decide upon the law or the merits of the action.

Rule 21(b), Rules of the Supreme Court. This provision supplements the more general rule that “[t]his court may dismiss a criminal appeal if appellant does not prosecute it as required by law or rules of court.” Rule 21(a). Rules adopted by the Supreme Court further provide:

Involuntary Dismissal. The Appellate Court upon motion of the appellee, or upon its own initiative after notice to all parties, may dismiss an appeal for want of prosecution, unless there is a showing of good cause why the appeal should not be dismissed. If the appellant was a defendant at trial, the court shall give notice to the appellant and to the attorney for the appellant. No appeal shall be dismissed if the record on appeal is sufficient to enable the Appellate Court to decide the appeal on its merits, or when the appeal is taken automatically after the defendant has been sentenced to death.

Rule 31.15(b), Rules of Criminal Procedure (emphasis added).

The Court of Appeals has the same duty to review the record as the Supreme Court. State v. Junkin, 123 Ariz. 288, 290, 599 P.2d 244, 246 (App. 1979).

Appellant filed a timely notice of appeal through his attorney after his sentence was imposed (1 CA-CR 4430). Trial counsel then withdrew as attorney of record. The Public Defender was appointed to represent appellant. Among other transcripts, documents, and exhibits, the clerk of the Superi- or Court forwarded to this court transcripts of testimony and proceedings on the three separate days of the jury trial totaling in excess of 300 pages. The transcripts did not include the examination of the jury panel during the selection process. The clerk of this court issued a notice of completion of record indicating that appellant had 25 days from that date to file his opening brief. Thereafter, the Public Defender was permitted to withdraw as attorney of record by order of this court. The expressed reason was because “there has not been a showing that the appellant was entitled to counsel under A.R.S. § 11-584(A)(1),” which makes the services of the Public Defender available to defendants financially unable to employ counsel. In its order this court stated:

*557IT IS FURTHER ORDERED extending the time for the filing of the opening brief to and including May 15, 1980. Should appellant fail to file the opening brief on or before May 15, 1980, this appeal shall be subject to dismissal without further notice.

A copy of the order was sent to appellant’s last known address. Neither appellant nor anyone else filed an opening brief or communicated with this court within the time permitted by the order. The appeal was dismissed in 1 CA-CR 4430 on June 12, 1980. It appears from the court’s order that the appeal was dismissed solely because appellant had not filed an opening brief, and not because of any lack of a sufficient record. After appellant was apprehended, the Public Defender was again appointed to represent him. Appellant made a motion to reinstate appeal which was denied. Appellant’s motion for rehearing was denied. The order stated:

IT IS ORDERED denying appellant’s motion for rehearing, without prejudice to the appellant filing a petition for post-conviction relief.

Appellant’s petition for review to the Supreme Court was denied.

Appellant then filed a petition for post-conviction relief in the Superior Court pursuant to rule 32, Rules of Criminal Procedure. The trial court granted the relief requested and permitted appellant to file a delayed appeal. The State filed a petition for review from this order resulting in this opinion, 1 CA-CR 5312-PR. Appellant filed a “delayed” notice of appeal from the Superior Court which is pending at this time. 1 CA-CR 5296. This court entered an order extending the time for filing appellant’s opening brief to and including 30 days after the decision is issued in this cause.

Notwithstanding the facts that appellant did not file an opening brief in 1 CA-CR 4430, was not represented by counsel, and had left the jurisdiction of the court, this court had the duty to review the record for fundamental error. The Supreme Court has held that an. appellate court must review the record even though appellant does not file an opening brief.

Notwithstanding the appellant’s failure to prosecute his appeal and point out specifically wherein the trial court erred, we have, in order to discharge our duty ... [under A.R.S. § 14-4035, formerly § 13-1715(B)] carefully examined the entire record for fundamental error.

State v. Houston, 80 Ariz. 86, 88, 292 P.2d 1077, 1079 (1956). The court then outlined its findings and concluded that “we find nothing in the record which would justify a disturbance of the verdict and judgment in this case.” The Supreme Court reaffirmed Houston’s interpretation of its statutory duty in State v. Cooper, 108 Ariz. 289, 496 P.2d 589 (1972). The duty to review the record is unaffected by the fact that no counsel appears for an appellant. Martin v. State, 22 Ariz. 275, 196 P. 673 (1921). The duty to review the entire record exists whether or not the appellate court is requested to do so. State v. Long, 121 Ariz. 280, 281, 589 P.2d 1312, 1313 (1979).

This court has no less a duty to examine the entire record for fundamental error. This court should not have dismissed appellant’s first appeal (1 CA-CR 4430). Having done so, appellant did not fail to appeal within the meaning of the rule. In any event, the dismissal by this court was without fault of the appellant. Rule 32.1(f) Rules of Criminal Procedure. The trial court was therefore justified in permitting appellant to file a delayed appeal. The trial court commented that “... there are what could be some substantial issues in the case.... ” Appellant will be precluded from presenting these matters to the court unless the State’s petition for review is denied and the appellant is permitted to file his opening brief in 1 CA-CR 5296.

I would deny the relief requested by the State.