State v. Regenold

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0154-PR
Appellee, )
) Court of Appeals
) Division One
v. ) No. 1 CA-CR 08-0651
)
) Maricopa County
CHRISTOPHER MICHAEL REGENOLD, ) Superior Court
) No. CR2005-135187-001 DT
)
Appellant. ) O P I N I O N
_________________________________ )

Appeal from the Superior Court in Maricopa County
The Honorable Jaime B. Holguin, Commissioner
________________________________________________________________

Memorandum Decision of the Court of Appeals, Division One
Filed Mar. 18, 2010

REVERSED AND REMANDED
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Capital Litigation Section
Aaron J. Moskowitz, Assistant Attorney General
Diane Leigh Hunt, Assistant Attorney General Tucson
Attorneys for State of Arizona

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Tennie B. Martin, Deputy Public Defender
Colin F. Stearns, Deputy Public Defender

And

MARICOPA COUNTY OFFICE OF THE LEGAL ADVOCATE Phoenix
By Consuelo M. Ohanesian, Deputy Legal Advocate
Attorneys for Christopher Michael Regenold
________________________________________________________________
B E R C H, Chief Justice

¶1 A defendant in a noncapital case “may not appeal from a

judgment or sentence that is entered pursuant to a plea

agreement or an admission to a probation violation.” Ariz. Rev.

Stat. (“A.R.S.”) § 13–4033(B) (2010). We have been asked to

decide whether a defendant who pleads guilty but later contests

an alleged probation violation may appeal the resulting

sentence. We hold that A.R.S § 13–4033(B) does not limit the

right of appeal in such circumstances.

I. FACTS AND PROCEDURAL HISTORY

¶2 Christopher Michael Regenold was indicted for one count

of luring a minor for sexual exploitation. He accepted a plea

agreement that provided a sentencing range of five to fifteen

years. The judge suspended imposition of the sentence and

placed Regenold on lifetime probation.

¶3 More than a year later, the State petitioned to revoke

Regenold’s probation. After a contested hearing, the judge

revoked probation and sentenced Regenold to six and one-half

years in prison. Regenold appealed. Citing A.R.S. § 13-

4033(B), the court of appeals dismissed the appeal for lack of

jurisdiction, finding that Regenold’s sentence had been imposed

pursuant to his plea agreement and, therefore, rather than

appealing, he should have filed a petition for post-conviction

relief pursuant to Rule 32. State v. Regenold, 1 CA–CR 08–0651,

- 2 -
2010 WL 987063 (Ariz. App. Mar. 18, 2010).

¶4 We granted review of Regenold’s petition for review

because the court of appeals decision in this case conflicts

with the opinion of the court of appeals in State v. Ponsart,

224 Ariz. 518, 233 P.3d 631 (App. 2010), and the issue presented

is of statewide importance. We have jurisdiction under Article

6, section 5, clause 3 of the Arizona Constitution.

II. DISCUSSION

¶5 Arizona Rule of Criminal Procedure 32.1 provides the

review process for defendants who plead guilty. State v. Smith,

184 Ariz. 456, 458, 910 P.2d 1, 3 (1996). It authorizes review

through an of-right post-conviction relief proceeding for those

defendants who “admitted a probation violation, or whose

probation was automatically violated based upon a plea of guilty

or no contest.” Ariz. R. Crim. P. 32.1. Those found guilty

after trial retain the right to appeal.

¶6 Arizona Revised Statutes § 13–4033(B) similarly

precludes those who enter plea agreements or admit to a

probation violation from filing a direct appeal. It provides

that “[i]n 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.” Id. We

must resolve whether a defendant who pleads guilty to the

underlying crime, but later has probation revoked following a

- 3 -
contested probation revocation hearing, may appeal the resulting

sentence or must instead file a Rule 32 petition.

¶7 Regenold argues that because § 13-4033(B) precludes an

appeal only from an “admission to a probation violation,” a

defendant may appeal from a judgment or sentence entered after

the defendant contests or refuses to admit to a probation

violation. The State responds that a pleading defendant who is

put on probation, later unsuccessfully contests a probation

violation and is thereafter sentenced, receives punishment

“pursuant to a plea agreement” for purposes of § 13-4033(B) and

thus may not appeal. It also argues that Regenold waived his

right to appeal when he entered the plea agreement. For these

reasons, the State maintains, Regenold cannot pursue a direct

appeal, but must instead seek review under Rule 32. We disagree

with the State’s contentions.

¶8 A defendant who receives punishment following a

contested probation violation proceeding does not receive a

“sentence that is entered pursuant to a plea agreement” as that

phrase is used in § 13-4033(B). Rather, a pleading defendant

who is sentenced to prison or jail or placed on probation

receives punishment “pursuant to [the] plea agreement” when the

probation or other sanction for the underlying crime is imposed.

At that time, the defendant learns his punishment, which may

include a combination of prison or jail time and restitution,

- 4 -
along with any probationary period and terms. If the defendant

fulfills those terms, this is the only sentence he will ever

receive for the underlying crime. If the defendant fails to

comply with the terms of probation, however, a different and

more severe consequence may result. Any punishment imposed

after a probation revocation hearing is a consequence that would

not exist but for the defendant’s violation of probation.

Therefore, although the range of punishment for a probation

violation may be constrained by a plea agreement, the sentence

imposed after a contested probation revocation is not entered

“pursuant to [the] plea agreement” for purposes of § 13–4033(B).

¶9 The State also argues that Regenold waived his right to

appeal by signing a plea agreement that provided, “By entering

this agreement, the Defendant further waives and gives up the

right to appeal.” Although we agree that Regenold waived his

right to direct appeal by pleading guilty, instead implicitly

consenting to review by petition for post-conviction relief, see

Smith, 184 Ariz. at 458, 910 P.2d at 3, he did not waive his

right to appeal later rulings in the case.

¶10 We find support for our conclusion in the language of

Rule 32.1, which permits a defendant who “admit[s] a probation

violation, or whose probation was automatically violated based

upon a plea of guilty or no contest” to file a petition for

post-conviction relief. As noted, Regenold did not admit that

- 5 -
he violated probation; he contested that he had done so. In

short, Regenold’s situation is not squarely covered by language

of Rule 32.1 that would require him to seek review by filing a

petition for post-conviction relief. On the other hand, he is

not prohibited from appealing the revocation of probation by the

language of A.R.S. § 13-4033(B) because he did not admit to a

probation violation.

¶11 A contrary construction of § 13–4033(B) may lead to

multiple hearings involving the same facts. See Ponsart, 224

Ariz. at 520-21 ¶ 8, 233 P.3d at 633-34. For example,

precluding a pleading defendant from appealing a sentence

imposed following a contested probation violation hearing would

require the defendant to appeal from the finding of a probation

violation, but to file a separate Rule 32 petition for post-

conviction relief to contest the resulting sentence. See id.

Requiring parallel proceedings contravenes § 13-4033(B)’s

purpose of reducing the burden on the appellate courts. See

Hearing on H.B. 2481 Before the H. Comm. on Judiciary, 40th

Leg., 2d Reg. Sess. (Feb. 24, 1992); accord Arizona State

Senate, Fact Sheet for H.B. 2481, 40th Leg., 2d Reg. Sess. (Mar.

19, 1992). Permitting the defendant to combine the finding of a

violation and the sentence imposed following a finding of a

probation violation in one appeal better serves the legislative

intent.

- 6 -
 III. CONCLUSION

¶12 Because Regenold appealed a sentence entered after a

contested hearing on a probation violation, § 13-4033(B) does

not bar his appeal. We reverse the decision of the court of

appeals and remand to that court for further proceedings.

__________________________________
Rebecca White Berch, Chief Justice

CONCURRING:

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
Michael D. Ryan, Justice (Retired)

P E L A N D E R, Justice, dissenting

¶13 I respectfully dissent, but not because the majority

does violence to the wording of A.R.S. § 13-4033. In fact, the

majority’s interpretation of that statute is plausible and

perhaps preferable for the policy reasons set forth in ¶ 11,

supra. In my view, however, the more reasonable and logical

interpretation of § 13-4033(B) precludes Regenold’s appeal

because, at bottom, he is appealing from a sentence “entered

- 7 -
pursuant to a plea agreement.” Indeed, in the only issue raised

on appeal, Regenold directly challenges his plea agreement’s

prescribed sentencing range under which the trial court

sentenced him, as it was required to do. Therefore, because the

appeal is prohibited under § 13-4033(B), the proper avenue of

review is by petition for post-conviction relief under Arizona

Rule of Criminal Procedure 32.

¶14 The majority bases its contrary conclusion on one of

the two exceptions set forth in § 13-4033(B) – “an admission to

a probation violation.” But subsection (B) is framed in the

disjunctive and clearly precludes defendants in noncapital cases

from appealing “from a judgment or sentence that is entered

pursuant to a plea agreement.” On its face, that prohibition is

neither qualified nor limited to situations in which the

defendant is initially (or contemporaneously) sentenced to a

prison term, rather than initially being placed on probation,

after the trial court accepts the plea; nor is the prohibition

tied to whether or not the defendant ultimately admits to a

probation violation, a situation in which appellate jurisdiction

also is foreclosed under the second, independent clause of

subsection (B).

¶15 Nonetheless, I acknowledge that the language of § 13-

4033(B) has no “plain meaning” and, on its face, does not

clearly answer the appellate jurisdiction issue presented here.

- 8 -
But when statutory words do not lend themselves to a plain

meaning or yield an obvious result, we may refer “to an

established, widely respected dictionary for the ordinary

meaning” of the words. State v. Wise, 137 Ariz. 468, 470 n.3,

671 P.2d 909, 911 n.3 (1983); see also A.R.S. § 1-213 (“Words

and phrases shall be construed according to the common and

approved use of the language.”).

¶16 Black’s Law Dictionary defines “pursuant to,” the key

phrase in this case, as “[i]n compliance with; in accordance

with; under[;] . . . [a]s authorized by.” Black’s Law

Dictionary 1356 (9th ed. 2009). After accepting Regenold’s

plea, the trial court was bound by its terms, including the

sentencing range Regenold now claims is illegal. See Mejia v.

Irwin, 195 Ariz. 270, 273 ¶ 17, 987 P.2d 756, 759 (App. 1999)

(“Once the State made the agreement with Mejia and the court

accepted and acted upon it, all parties were bound by it.”);

State v. Druke, 128 Ariz. 604, 605, 627 P.2d 1102, 1103 (App.

1981) (“[I]t is the duty of the court to carry out the terms of

the [plea] agreement.”). Because the plea wholly controlled the

court’s sentence, the sentence was a direct (albeit deferred)

consequence of the plea agreement. See State v. Muldoon, 159

Ariz. 295, 298, 767 P.2d 16, 19 (1988) (stating probation is a

court order “suspend[ing] or defer[ring]” the imposition of

sentence to “some future date” in order to give a defendant “a

- 9 -
period of time in which to perform certain conditions and

thereby avoid imposition of a sentence”). Therefore, Regenold’s

appeal effectively challenges a term in his plea agreement and,

as such, is disallowed by § 13-4033(B) and Rule 17.1(e)

(providing that defendants in noncapital cases who plead guilty

waive right to direct appeal and may seek review only via post-

conviction proceedings under Rule 32). Cf. State v. Delgarito,

189 Ariz. 58, 59, 61, 938 P.2d 107, 108, 110 (App. 1997)

(allowing appeal from trial court’s designation of offense as

felony, when appeal did not “effectively challenge[] the plea

agreement or sentence,” and defendant had “no other means of

appellate review”).

¶17 I find the majority’s analysis unpersuasive because it

incorrectly assumes that Regenold’s ultimate sentence arose out

of the contested probation violation hearing rather than the

plea agreement. Regardless of when the trial court imposes

sentence on a pleading defendant, and even though the

“consequence” of sentencing resulted only from Regenold’s

probation violation, the inquiry should be whether the plea

agreement controlled the court’s disposition of the matter. The

majority seems to acknowledge that it did. See ¶ 8, supra.

¶18 The majority’s reasoning also suggests that § 13-

4033(B) applies only to sentences entered immediately following

a trial court’s acceptance of a plea agreement and not to

- 10 -
sentences imposed sometime later, after intervening events have

occurred. But that view effectively inserts into § 13-4033(B)

the word “immediately” before the word “entered,” thereby

applying the statute’s prohibition only to sentences entered

immediately pursuant to a plea agreement. The statute contains

no such requirement and, absent an absurdity or impossibility,

this Court is not free to modify the statute in that way. See

Hernandez v. Frohmiller, 68 Ariz. 242, 250, 204 P.2d 854,

859 (1949).

¶19 Moreover, any temporal limit on § 13-4033(B) is

inconsistent with multiple cases that conclude a sentence was

pursuant to a plea agreement, precluding direct appeal, despite

the presence of intervening events. In State v. Celaya, 213

Ariz. 282, 282-83 ¶¶ 1-2, 7, 141 P.3d 762, 762-63 (App. 2006),

and State v. Rodriguez-Gonzales, 208 Ariz. 198, 199 ¶ 1, 92 P.3d

424, 425 (App. 2004), the intervening event was invalidation of

the original sentence. In State v. Jimenez, 188 Ariz. 342, 342-

43, 935 P.2d 920, 920-21 (App. 1996), the intervening event was

the defendant’s motion to vacate the plea agreement’s probation

conditions. The defendant’s only relief in each of those cases

was by post-conviction relief under Rule 32.1. As those

authorities indicate, the inquiry relevant to § 13-4033(B) is

whether, in the end, an appeal essentially challenges the plea

agreement. If so, as here, a case’s procedural history, or the

- 11 -
specific timing of sentencing pursuant to the plea agreement,

does not render appealable an otherwise unappealable sentence.

¶20 Also unpersuasive is the majority’s reference to Rule

32.1 in support of its conclusion. See ¶ 10, supra. Appellate

jurisdiction is controlled and limited by statute, not rule.

See Campbell v. Arnold, 121 Ariz. 370, 371, 590 P.2d 909,

910 (1979). To the extent it is pertinent, however, Rule 32.1

provides that “[a]ny person who pled guilty or no contest . . .

shall have the right to file a post-conviction relief

proceeding” under Rule 32, and in that “of-right proceeding,”

the defendant may assert, as Regenold does, that “[t]he sentence

imposed exceeded the maximum authorized by law, or is otherwise

not in accordance with the sentence authorized by law[.]” Ariz.

R. Crim. P. 32.1(c). It is undisputed here that Regenold “pled

guilty,” Ariz. R. Crim. P. 32.1, and that fact is unaltered by

his having later contested the probation-revocation petition

filed against him. Thus, having pled guilty, Regenold is

squarely within the category of defendants this Court, by rule,

has diverted to the Rule 32 path for post-conviction relief and

appellate review.

¶21 The majority’s concern about multiplicative

proceedings, though valid in the abstract, is unwarranted here

because Regenold does not challenge the revocation of probation.

More importantly, the hypothetical prospect of multiple

- 12 -
proceedings does not allow us to override § 13-4033(B). Because

§ 13-4033(B) is a jurisdictional statute, the court of appeals

has no jurisdiction over any claims that fall within the

statute’s prohibitive scope, no matter how or when they arise

and even if the defendant could raise other claims on appeal.

Any multiplication of proceedings created by § 13-4033(B) is

simply a consequence of the legislature’s decision to divert

appeals from pleading defendants to the Rule 32 process, a

phenomenon that regularly occurs in reverse when non-pleading

defendants who appeal are relegated to Rule 32 post-conviction

proceedings for any claims of ineffective assistance of counsel.

See State v. Spreitz, 202 Ariz. 1, 3 ¶ 9, 39 P.3d 525, 527

(2002).

¶22 For these reasons, the court of appeals lacks subject

matter jurisdiction over Regenold’s appeal and, therefore, I

would affirm that court’s memorandum decision dismissing the

appeal.

__________________________________
A. John Pelander, Justice

- 13 -