IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
ANDRES SANCHEZ,
Appellant.
No. 2 CA-CR 2022-0056
Filed September 29, 2023
Appeal from the Superior Court in Pima County
No. CR20200723001
The Honorable Javier Chon-Lopez, Judge
AFFIRMED
COUNSEL
Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee
Megan Page, Pima County Public Defender
By Ian M. McCloskey, Assistant Public Defender, Tucson
Counsel for Appellant
STATE v. SANCHEZ
Opinion of the Court
OPINION
Presiding Judge Brearcliffe authored the opinion of the Court, in which
Judge Kelly concurred and Judge Eckerstrom concurred in part and
dissented in part.
B R E A R C L I F F E, Presiding Judge:
¶1 Appellant Andres Sanchez appeals his conviction and
sentence for aggravated domestic violence. Sanchez asserts the trial court
erred in admitting certain video evidence and denying his motion for new
trial. For the following reasons, we affirm.
Factual and Procedural Background
¶2 “We view the facts in the light most favorable to upholding
the conviction.” State v. Griffin, 250 Ariz. 651, ¶ 2 (App. 2021). Sanchez and
D.L. lived together in early 2020 in Tucson. In February 2020, D.L. and
Sanchez argued at their apartment and, eventually, D.L. left on foot to pick
up her children from school. As D.L. was walking to the school, Sanchez
“came up behind” her, startling her. D.L.’s phone started ringing, and
Sanchez “snatched the phone from [her] hand and he threw it [o]n the
ground,” breaking it. Sanchez then began pushing D.L., pulling her hair,
and then hit her on the back of the head. Sanchez told D.L. if she “call[ed]
the cops on him that he would kill [her].” Eventually, D.L. was able to
escape and run to the school.
¶3 A driver who saw the fight called 9-1-1. A police officer went
to the school looking for D.L. He found her in the school office “crying”
and “frightened” and took her statement. Sanchez was arrested and
charged with aggravated domestic violence “by disturbing [D.L.’s] peace.”
¶4 At trial, the state notified the trial court of its intention to
present body camera footage from the officer taken while interviewing D.L.
at the school. The state explained the video showed “her demeanor, how
upset [D.L.] was.” In the video, D.L. told the officer what had happened,
“why she’s scared of [Sanchez], why she’s upset,” and the video ends with
the officer telling her “she doesn’t have to go back home.” Sanchez objected
to the video, asserting that the officer had arrived “some time later” and
that D.L.’s demeanor when he arrived was not an accurate representation
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Opinion of the Court
of the effect Sanchez’s actions had on her. He argued there was nothing in
the video that could not be explained to the jury through testimony and
claimed the video was “more prejudicial than it [was] probative.”
¶5 After confirming with the state that the video had been taken
within thirty minutes of the incident and that Sanchez intended to attack
D.L.’s credibility as to her emotional state, the trial court ruled it was
admissible and its probative value was not outweighed by the danger of
unfair prejudice. The court explained that, if Sanchez questioned D.L.’s
credibility as to whether she had been disturbed, the video would be
relevant to respond to such an argument. The video was ultimately shown
to the jury over Sanchez’s renewed objection.
¶6 During deliberations, the jurors asked the trial court why the
cause number on one exhibit did not match the cause number before them.
The court consulted with the parties and, at Sanchez’s request, drafted an
answer for the jurors explaining that it was “an error.” Meanwhile, the
bailiff entered the courtroom, stating, “It looks like they have a verdict.”
The court told the bailiff, “Well, take that back,” presumably referring to
the drafted answer to the jury question. After a recess, the jurors were
brought in and returned a guilty verdict. On the record before us, Sanchez
did not object or question whether the answer had been given to the jurors.
¶7 After the guilty verdict, Sanchez filed a timely motion for new
trial pursuant to Rule 24.1, Ariz. R. Crim. P., arguing the jury had returned
its verdict before receiving the trial court’s answer to the jury question. The
court denied the motion and later Sanchez was sentenced to the
presumptive term of 2.25 years in prison. We have jurisdiction over
Sanchez’s appeal from the conviction and sentence.
Jurisdiction over the Denial of the Motion for New Trial
¶8 As an initial matter, Sanchez devotes much of his briefing to
challenging the trial court’s denial of his motion for new trial. Sanchez’s
notice of appeal, however, did not identify the order denying that motion.
Although the state did not raise the issue, we have a continuing duty to
examine our own jurisdiction. Musa v. Adrian, 130 Ariz. 311, 312 (1981).
While we have previously concluded that we lack jurisdiction under these
circumstances, State v. Wilson, 253 Ariz. 191, n.3 (App. 2022), we requested
supplemental briefing on the issue.
¶9 The parties agree that neither a separate notice of appeal—nor
a specification of the denied motion for new trial in the notice of appeal of
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STATE v. SANCHEZ
Opinion of the Court
the judgment and sentence—is required to perfect an appeal of a denied
motion for new trial. Contrary to the parties’ and our dissenting colleague’s
compelling arguments, we conclude we do not have jurisdiction over the
denial of the motion for new trial.
¶10 The jurisdiction of this court “is prescribed by statute and we
have no authority to entertain an appeal over which we do not have
jurisdiction.” State v. Nunn, 250 Ariz. 366, ¶ 4 (App. 2020) (quoting State v.
Limon, 229 Ariz. 22, ¶ 3 (App. 2011)). Because we are “a court of limited
jurisdiction,” we have “only [the] jurisdiction specifically given to [us] by
statute.” Campbell v. Arnold, 121 Ariz. 370, 371 (1979); see also A.R.S.
§ 13--4031 (defendant “may appeal as prescribed by law and in the manner
provided by the rules of criminal procedure”). “A notice of appeal from a
judgment or order other than [a judgment of conviction and imposition of
sentence] must be filed no later than 20 days after entry of” that order. Ariz.
R. Crim. P. 31.2(a)(2)(B). And such a notice “must identify the order,
judgment, or sentence that is being appealed.” Ariz. R. Crim. P. 31.2(c)(1).
¶11 Sanchez’s notice of appeal did not identify the order denying
his motion for new trial and was filed more than twenty days after that
ruling. Although the trial court granted Sanchez’s request for a delayed
appeal, neither his petition pursuant to Rule 32, Ariz. R. Crim. P., nor the
court’s order mentioned the denial. Sanchez argues, however, that his
having identified the transcript of the hearing on the motion as part of the
record on appeal was sufficient to raise a challenge to the denial of that
motion, thereby bringing the matter into the exception set forth in Hanen v.
Willis—a technical error. 102 Ariz. 6, 8-9 (1967). We agree, as does the state,
that “technical errors in a notice of appeal” are “nonjurisdictional defects
that will not render it ineffective absent a showing of prejudice” to the
appellee. State v. Smith, 171 Ariz. 501, 503 (App. 1992).
¶12 We cannot agree, however, that a request for a transcript of
the hearing is sufficient to satisfy the requirements of Rule 31.2. Rule 31.2
requires that the notice itself identify the subject of the appeal, and the
notice before us does not indicate that Sanchez specifically intended to
appeal from the denial of his motion for new trial. Contra Smith, 171 Ariz.
at 503-04 (technical error when notice listed “sentence” but included date
of acceptance of plea and sentence). We cannot disregard the plain
requirements of the rules and cannot infer from the notice something that
is not actually stated or reasonably implied. See Baker v. Emmerson, 153 Ariz.
4, 8 (App. 1986) (original notice of appeal from earlier judgment that failed
to dispose of claim against party insufficient to appeal from amended
judgment adding the party). Furthermore, designating a transcript in the
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Opinion of the Court
record on appeal occurs separately from the notice of appeal and serves a
significantly different purpose. Counsel may designate transcripts of a
wide variety of non-presumptive proceedings for various reasons, many of
which would have nothing to do with an appeal of a separate order.
Moreover, the designation of record here could not effectively serve the
function of a notice of appeal because, as such, it would have been untimely.
¶13 Beyond the questions of adequate notice and timeliness, both
Sanchez and the state contend that we have jurisdiction because the trial
court’s order denying Sanchez’s motion for new trial was interlocutory and
not final or appealable until the entry of his conviction and sentence. This
is incorrect.
¶14 Section 13-4033(A), A.R.S., gives this court jurisdiction in a
criminal matter over an appeal “by the defendant only from” a “final
judgment of conviction or verdict of guilty except insane,” a “sentence on
the grounds that it is illegal or excessive,” and certain other orders,
including one “denying a motion for a new trial.” As noted above, Rule
31.2(a)(2)(B) requires a defendant to file a notice of appeal from an order
other than a judgment of conviction or sentence within twenty days of that
order. And Rule 31.2(h) specifically requires an amended notice of appeal
if a trial court “enters an order granting or denying relief under Rule 24”—
including relief sought under Rule 24.1 covering motions for new trial—
after a notice of appeal has been filed. Rule 31.2(h) makes no distinction
between or among the Rule 24 motions to which it relates. Thus, the statute
and rule anticipate a ruling on a motion for new trial being treated as a
separate, appealable order, which, correspondingly, must be separately
appealed. 1 See State v. Wynn, 114 Ariz. 561, 562-63 (App. 1977) (no
jurisdiction over Rule 24.2 ruling when not separately appealed).
¶15 We also cannot conclude, as the parties urge, that a ruling on
a motion for new trial is interlocutory and effectively merged with the
conviction and sentence, thereby allowing appellate review by virtue of a
notice of appeal of the judgment and sentence alone. For much of Arizona’s
history, a ruling on such a motion was subject to review on appeal from a
judgment. Former A.R.S. § 13-4035 directed that on “appeal from a final
1 Our dissenting colleague points out that§ 13-4033(A) states the
defendant “may” appeal such a denial and not “must.” But of course, it
also states that he “may” appeal the judgment and sentence, and we
similarly would not infer that a notice of appeal failing to identify the
judgment and sentence intended to appeal them.
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Opinion of the Court
judgment of conviction,” an appellate court was to “review all rulings
affecting the judgment.” State v. Dawson, 164 Ariz. 278, 286 (1990)
(Cameron, J., dissenting) (emphasis added) (quoting former § 13-4035(A)).
The former statute also expressly provided: “If a motion for a new trial was
made and denied, the court shall, on appeal from the judgment, review the
action of the court below in denying a new trial.” Id. (quoting former
§ 13--4035(A)). The legislature repealed this statute applying to criminal
cases in 1995. 1995 Ariz. Sess. Laws, ch. 198, § 1. It did not, however, repeal
a similar provision applying to civil cases. See A.R.S. § 12-2102.
¶16 Both § 12-2102 and former § 13-4035 arose from a line of
Arizona Supreme Court cases in which the court determined that, under
previously existing civil statutes, “an order overruling a motion for a new
trial was not an intermediate order” and that, therefore, a ruling thereon
could not be considered part of an appeal from the judgment. Hays v.
Richardson, 95 Ariz. 263, 265-67 (1964) (citing Miami Copper Co. v. Strohl, 14
Ariz. 410 (1913), superseded by statute as stated in Hays, 95 Ariz. at 265-67));
see also Torrez v. State, 21 Ariz. 65, 66 (1919) (no jurisdiction when appeal
taken from “verdict of conviction” but not “judgment” or denial of motion
for new trial). Our supreme court inferred that the legislature’s amendment
of the civil statutes had been intended to resolve the jurisdictional problem
it had identified in earlier decisions. Hays, 95 Ariz. at 265.2
¶17 Despite the substantial parity between our civil and criminal
standards for motions for a new trial, see State v. Fischer, 242 Ariz. 44, ¶ 11
(2017), our legislature’s retaining the civil provisions extending our review
to civil motions for new trial but repealing the criminal statute, shows that
our review is limited in the criminal context.3 See Curtis v. Morris, 184 Ariz.
2 The 1995 legislative amendment also post-dated Smith, 171 Ariz.
501, a case from 1992 on which our dissenting colleague principally relies.
3As the state points out, it appears the legislature repealed former
§ 13-4035 in response to our supreme court’s reliance on it in support of its
conclusion that review pursuant to Anders v. California, 386 U.S. 738 (1967),
was required in post-conviction proceedings. See Montgomery v. Sheldon,
181 Ariz. 256, supp. op. 182 Ariz. 118, 119-20 (1995). Although the legislative
history supports that this was the motivation for the repeal, the legislature
could have repealed only subsection (B) and the first sentence of subsection
(A), which formed the basis for the Montgomery court’s conclusion that the
appellate court was required to “review the entire record.” A.R.S. § 13-4035
(1994); Montgomery, 181 Ariz. 256, 262 n.3 (Martone, J., dissenting). Instead,
it repealed not only that subsection but the portion of subsection (A) that
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Opinion of the Court
393, 397 (App. 1995) (change to one section and not to another indicative of
intent in determining implicit repeal); cf. State v. Ault, 157 Ariz. 516, 519
(1988) (“[W]hen the legislature expresses a list, we assume the exclusion of
items not listed.”). In view of our legislature’s statutory choices, we have
no authority to exceed our jurisdictional bounds. Nunn, 250 Ariz. 366, ¶ 4.
¶18 Furthermore, we cannot agree with the parties’ assertions that
following the statute as amended will necessarily create practical
difficulties for parties and the courts, such as barring review of issues
directly related to conviction and sentencing and piecemeal litigation. As
we have historically done, when an issue is raised that goes to the validity
of a conviction or sentence, we will consider an argument on that issue in
the context of an appeal from the judgment or sentence. See, e.g., Wilson,
253 Ariz. 191, n.3; see also Ariz. R. Crim. P. 31.2(a)(2)(A). Such a review will
encompass most claims raisable in a motion for new trial under Rule 24.1—
a verdict that is “contrary to law or the weight of the evidence,” misconduct
by the state, a trial court’s legal or instructional error, other claims of an
unfair trial, and many claims of juror misconduct.
¶19 Thus, although a separate, timely notice of appeal is necessary
to obtain review of the denial of a motion for new trial as such, in view of
these available grounds, the failure to file a separate notice will not often
preclude us from addressing the underlying legal issues. But, because some
claims relate directly and solely to the denial of the motion itself, a separate
notice of appeal will be necessary to initiate review of those claims. The
primary example is a claim of juror misconduct as to which a defendant
requests that the trial court take evidence pursuant to Rule 24.1(d). If the
court denies that request, a challenge to that order would not “necessarily
require a review of the judgment itself.” Wendling v. Sw. Sav. & Loan Ass’n,
143 Ariz. 599, 601-02 (App. 1984). In order to obtain review of such an
order, a defendant would need to file a notice of appeal from the denial
within twenty days, as required by Rule 31.2(a)(2)(B), because we could not
address such a claim outside the context of the denial of the motion for new
trial.
specifically addressed the scope of an appeal in regard to the denial of a
motion for new trial. In any event, the plain language of the statute remains
as the legislature passed it—without a provision bringing the denial of a
motion for new trial within the scope of review on an appeal from the
judgment. See In re McLauchlan, 252 Ariz. 324, ¶ 15 (2022) (“Legislative
history is not a substitute for clear legislative language . . . .”).
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Opinion of the Court
¶20 Despite the parties’ concerns about piecemeal litigation, this
case exemplifies the wisdom of such an approach. The motion for new trial
in this case was denied in September 2021. As Sanchez pointed out at oral
argument before this court, the “probative value” of an evidentiary hearing
examining whether the jurors had received the trial court’s corrective
instruction would be low after so much time has passed. Appellate review
of the denial here within the statutory time frame and rules, however,
would have ensured meaningful appellate review.
¶21 In the absence of a timely notice of appeal identifying the trial
court’s order denying a motion for new trial, this court has no jurisdiction
to review the denial. Even so, this court will continue to consider issues that
may have been raised in an unappealed motion for new trial when they are
raised as a challenge to the validity of the conviction or sentence.
¶22 Here, Sanchez’s legal argument—that the trial court erred in
responding to the jury’s question—could have been raised as a challenge to
both the denial of his motion for new trial and his conviction. But on appeal
he has not made a separate argument raising the claim in the context of his
conviction. Instead, he asks us to review the court’s actions entirely in the
context of the unappealed denial of his motion for new trial, and he has
therefore waived the claim in regard to the validity of his conviction. See
State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008) (argument waived
when not argued on appeal), overruled on other grounds by State v. Vargas,
249 Ariz. 186, ¶ 1 (2020).4
¶23 Our dissenting colleague is no doubt correct that there may
be further and other procedural issues resulting from this opinion
presented in succeeding cases, but our role is not to ignore otherwise proper
legislative acts because we do not like the consequences. Because the order
denying Sanchez’s motion for new trial was not properly or timely
appealed, we lack jurisdiction to consider it. See Wilson, 253 Ariz. 191, n.3;
see also § 13-4033(A)(1), (2); Ariz. R. Crim. P. 31.2(c)(1). And because he has
waived any argument in regard to his appeal from his conviction, we
4Sanchez is not left without a remedy. Unlike a civil litigant, whose
opportunity to appeal is lost if he fails to comply with the appellate rules, a
criminal defendant can seek a delayed appeal. As Sanchez correctly points
out, Rule 32.1(f) provides that a defendant may seek post-conviction relief
if “the failure to timely file a notice of appeal was not the defendant’s fault.”
And failure to file a notice of appeal may constitute ineffective assistance of
counsel. Garza v. Idaho, 586 U.S. ___, 139 S. Ct. 738, 747 (2019).
8
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Opinion of the Court
decline to address his arguments in that context. We have jurisdiction over
the remaining issues on appeal pursuant to A.R.S. §§ 12-120.21(A)(1),
13--4031, and 13-4033(A)(1).
Admission of Body Camera Video
¶24 On appeal, Sanchez argues Officer Martinez’s body camera
video of D.L.’s statements should have been precluded. First, he contends
that because the video was taken thirty minutes after the underlying
assault, it was too remote in time to be probative of D.L.’s state of mind.
And second, he asserts that, because the video “invite[d] the jury to make
its decision based on emotion,” it had a danger of being unfairly prejudicial
under Rule 403, Ariz. R. Evid. We review a trial court’s admission of
evidence for an abuse of discretion. State v. Leteve, 237 Ariz. 516, ¶ 18 (2015).
I. Remoteness
¶25 Evidence that “has any tendency to make a fact more or less
probable” and is “of consequence in determining the action” is relevant and
admissible, unless otherwise excluded. Ariz. R. Evid. 401, 402. The state
argues that the body camera video was relevant because it showed that
Sanchez’s behavior had in fact disturbed D.L.’s peace and had been
“seriously disruptive behavior” constituting domestic violence.
¶26 The trial court determined that the video was “probative to
show how [D.L.] was feeling.” The court also determined that, if Sanchez
were to challenge D.L.’s credibility on her emotional state, the video would
be relevant for that independent reason. See State v. McCall, 139 Ariz. 147,
158-59 (1983) (“[A]ny evidence that substantiates the credibility of a
prosecution witness on the question of guilt is material and relevant and
may be properly admitted.”). D.L.’s emotional state following Sanchez’s
attack was probative of whether her peace was disturbed by the attack, an
element of the charged offense. And evidence of her emotional state
captured by the video was relevant. See A.R.S. §§ 13-3601(A), 13-2904(A)(1).
¶27 Sanchez argues nonetheless that the video was “too
remote”—having been recorded thirty minutes after the underlying
assault—to be probative. He does not, however, offer any authority
holding that the thirty-minute delay in capturing D.L.’s mental state was
too long as a matter of law. Although a victim’s emotional state can change
with the passage of time, cf. State v. Rivera, 139 Ariz. 409, 411 (1984)
(discussing time factor in excited utterance determination, stating that “the
length of time such stress will last varies among individuals”), remoteness
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Opinion of the Court
generally goes to the weight rather than the admissibility of evidence, cf.
State v. Williams, 209 Ariz. 228, ¶ 17 (App. 2004) (discussing remoteness of
other-act evidence admitted under Rule 404(b), Ariz. R. Evid.). Both
Sanchez and the state were free to argue any inference to be drawn from
D.L.’s conduct, as well as any effect from the passage of time on her
emotional state.
¶28 Indeed, Sanchez argues that D.L.’s conduct during the assault
belies the state’s claim of her disturbed emotional state. During the assault,
a witness drove by and saw Sanchez hit D.L. on the head and then saw D.L.
“charge at him” in response to being hit. Sanchez argues that such a
reaction means D.L. could not possibly have been disturbed during the
incident. Therefore, he asserts, the video only captures her state of mind
after the incident, which was irrelevant. Nonetheless, the weight and value
to be given the witness’s testimony is for the jury. State v. Cox, 217 Ariz.
353, ¶ 27 (2007). We will not reweigh the evidence on appeal. State v.
Rodriguez, 205 Ariz. 392, ¶ 18 (App. 2003). We cannot say, therefore, that
the trial court abused its discretion in admitting this evidence under Rules
401 and 402.
II. Improper Emotional Influence
¶29 Sanchez also argues that, even if relevant, the evidence should
nonetheless have been excluded as unfairly prejudicial under Rule 403,
Ariz. R. Evid. He claims that the emotional nature of the video caused the
jury to reach a verdict on an improper basis, thereby prejudicing him.
¶30 Rule 403 bars even relevant evidence from being admitted if
“its probative value is substantially outweighed by a danger of . . . unfair
prejudice.” “Unfair prejudice results if the evidence has an undue tendency
to suggest decision on an improper basis, such as emotion, sympathy, or
horror.” State v. Ortiz, 238 Ariz. 329, ¶ 9 (App. 2015) (quoting State v. Mott,
187 Ariz. 536, 545 (1997)). As a general matter, we do not second-guess a
trial court’s determination of unfair prejudice; that court is in the best
position to judge the impact of questioned evidence in light of the entire
trial and is therefore afforded broad discretion in applying Rule 403. State
v. Gomez, 250 Ariz. 518, ¶ 15 (2021); State v. Togar, 248 Ariz. 567, ¶ 23 (App.
2020).
¶31 The video certainly captures D.L. in an emotional state, but
that does not necessarily mean the resulting verdict was improperly based
on, or risked being improperly based on, sympathy or any other emotion.
Rather, D.L.’s demeanor was itself the relevant and probative aspect of the
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Opinion of the Court
video. Therefore, her level of emotion was a proper, rather than improper,
factor for the jury to consider in its deliberations. It cannot be assumed,
without more, that the state improperly influences the jury towards
sympathy whenever it provides direct evidence that the victim’s peace was
disturbed—an element the state had the burden to prove. Moreover, the
jurors were instructed to not be influenced by “sympathy or prejudice,” and
we assume they followed their instructions. State v. Gallardo, 225 Ariz. 560,
¶ 40 (2010). No indication of improper emotional influence appears in the
record. Therefore, the trial court did not abuse its discretion in rejecting
Sanchez’s Rule 403 objection.5
Disposition
¶32 We affirm Sanchez’s conviction and sentence.
E C K E R S T R O M, Judge, concurring in part and dissenting in part:
¶33 There is a reason our legislature has set forth a separate
pathway, in addition to the customary appeal of the final judgment of
conviction, for noticing an appeal of a denied motion for new trial.
Although rare in practice given the timing requirements for litigating such
a motion, motions for new trial can hypothetically be litigated
post-judgment. See Ariz. R. Crim. P. 24.1(b) (motion for new trial must be
filed within ten days of verdict), 26.2, 26.3(a)(1)(B) (allowing court to
pronounce judgment and sentence before deadline for filing motion for
new trial if defendant waives both right to presentence report and right to
be sentenced no sooner than fifteen days after conviction). When that
occurs, the traditional appeal of the earlier judgment pursuant to A.R.S.
§ 13-4033(A)(1) would not logically endow this court with jurisdiction over
a subsequently litigated and denied motion for new trial. To address this
uncommon scenario, our jurisdictional statute preserves at § 13-4033(A)(2)
a separate avenue for such an appeal.6
5 Sanchez also appears to argue that the trial court abused its
discretion because “there is no evidence the trial court viewed the video
before weighing the probative and prejudicial aspects.” Regardless of
whether the court watched the video, the state sufficiently described the
video to allow the court to rule on its admissibility.
6Post-judgment motions for new trial were more common when the
precursor to our jurisdictional statute was originally enacted. Before
Arizona’s omnibus overhaul of our rules of criminal procedure in 1973, a
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Opinion of the Court
¶34 The majority overlooks that, apart from that rare exception,
motions for new trial are, by procedural necessity, litigated and resolved
before judgment. When denied, the resulting order is interlocutory and
non-final, and it is interwoven with, and indispensable to, the ultimate
judgment of conviction. Under that circumstance, an appeal of the
judgment of conviction pursuant to § 13-4033(A)(1) would logically
encompass a challenge to a denied motion for new trial.
¶35 In contradiction of our prior practice and the thrust of our
prior jurisprudence, the majority nonetheless concludes that a notice of
appeal from a “judgment of guilt and sentence” is insufficient to trigger our
jurisdiction over a pre-judgment order denying a motion for new trial. To
preserve any appellate challenge to such a denial, the majority would now
require criminal defendants to separately appeal that non-final order within
twenty days of the trial court’s denial. Because the underlying motion for
new trial must be filed within ten days of the jury’s verdict, see Ariz. R.
Crim. P. 24.1(b), that twenty-day deadline to appeal will frequently arrive
before the sentencing date—before any comprehensive appeal of the
defendant’s conviction would be ripe. See Ariz. R. Crim. P. 26.3 (allowing
sentencing to occur as much as thirty days after determination of guilt and
authorizing extensions beyond thirty days for “good cause” or to facilitate
a presentencing hearing 7 ); Ariz. R. Crim. P. 26.10 (contemplating that
defendant could move for a new trial either to challenge pre-judgment trial
rulings or raise post-judgment claims of newly discovered evidence. See
former Rule 308, Ariz. R. Crim. P. (1956) (requiring defendant to move for
new trial within three days of verdict unless raising claim of newly
discovered evidence, which could be raised up to one year after verdict “or
at a later time if the court for good cause permits”). Since 1973, newly
discovered evidence claims must instead be raised in the context of
post-conviction proceedings under Rule 32.
7Our rules require trial courts to order the preparation of presentence
reports in most criminal cases and to disclose such reports to the parties at
least two days before sentencing hearings. See Ariz. R. Crim. P. 26.4(a),
26.6(b). Because the preparation of a useful presentence report requires
substantial research by the assigned probation officer and includes an
interview with the defendant, our trial courts set sentencing dates mindful
that they must provide probation officers sufficient time to prepare
comprehensive reports.
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Opinion of the Court
formal judgment be pronounced at time of sentencing); Ariz. R. Crim. P.
26.11(a) (same).
¶36 Let us consider the consequences of that holding. It will
require a criminal defendant, who seeks to challenge a pre-judgment denial
of a motion for new trial, to initiate a piecemeal appeal while in the midst
of a crucial moment in the trial court litigation.8 This will usually occur
before appellate counsel has been appointed and before the defendant can
know whether appealing is strategically wise.9 Worse, when the deadline
for filing that notice of appeal occurs during the pendency of the unfinished
trial court litigation, that filing would deprive the trial court of jurisdiction.
See, e.g., State v. Noriega, 5 Ariz. App. 572, 573 (1967) (“The filing of the notice
of appeal divested the trial court of jurisdiction to act except in furtherance
of the appeal.”). Under that circumstance, the trial court could pronounce
neither a final judgment nor a sentence absent further action from this court.
See Ariz. R. Crim. P. 31.3(b) (setting forth several additional procedural
steps required of court of appeals, appellate and superior court clerks, and
appellant to suspend our jurisdiction when appeal from denial of motion
for new trial has been separately noticed). Although the majority trivializes
these additional procedural burdens, our supreme court both promulgates
and construes its rules to avoid such unnecessary wastes of precious court
resources and costly attorney time. See Ariz. R. Crim. P. 1.2 (purpose and
construction).
¶37 I can find no language in our controlling jurisdictional statute,
§ 13-4033, or in our pertinent procedural rules, that would compel
defendants to choose such a counterintuitive, cumbersome, and inefficient
path to invoke our jurisdiction. As shall be explained below, we should
read § 13-4033(A) as neither more nor less than its text provides: as a menu
of potential pathways, sometimes overlapping, for invoking our court’s
8 The counter-intuitive necessity of filing a pre-judgment notice of
appeal during ongoing trial court litigation creates a procedural trap
whereby counsel may inadvertently forfeit any appellate challenge to a
denied motion for new trial.
9 When defendants receive a lenient sentence or a sentence of
probation, they may strategically choose to accept that outcome rather than
appealing the judgment or seeking a new trial that could ultimately
generate a worse result. See State v. Smith, 171 Ariz. 501, 505 (App. 1992)
(acknowledging defendants receiving favorable outcomes might not wish
to pursue challenges to judgments).
13
STATE v. SANCHEZ
Opinion of the Court
appellate jurisdiction. Our pertinent procedural rules merely acknowledge
the variety of those pathways as they facilitate and coordinate appellate
procedure consistent with them.
¶38 Quite simply, § 13-4033(A) authorizes criminal defendants to
take appeals from the final judgment of conviction, the sentence imposed,
or both. See § 13-4033(A)(1), (4).10 When, as here, a defendant timely notices
an appeal of the “judgment of guilt and sentence,” that notice logically
endows this court with jurisdiction to address all pre-judgment rulings or
orders necessarily affecting the judgment of conviction and resulting
sentence. See, e.g., United States v. Roe, 913 F.3d 1285, 1293 (10th Cir. 2019)
(notice of appeal that names final judgment is sufficient to support review
of all earlier orders that merge into final judgment under general rule that
appeal from final judgment supports review of all earlier interlocutory
orders); cf. Musa v. Adrian, 130 Ariz. 311, 312 (1981) (“In Arizona, with
certain exceptions, jurisdiction of appeals is limited to final judgments
which dispose of all claims and all parties.”). For this reason, we have
jurisdiction to address numerous claims—indeed, as the majority concedes,
all trial claims—when a defendant has filed such a notice.
¶39 No language in § 13-4033 suggests that the appellate claim
here—challenging a denied pre-judgment motion for new trial—should be
exempted from that principle. Nor would there be any logical reason to
exempt such an order: when a defendant files such a motion, its denial is a
necessary pre-condition of a judgment of conviction and any resulting
sentence. This is because granting the motion would vacate the verdict.
10As Sanchez did here, criminal defendants routinely articulate both
grounds in their notices of appeal. They do so to invoke the court’s
jurisdiction over all potential pre-judgement, judgment-related, and
sentencing-related claims. They do so as a procedural precaution because
the deadline for filing a notice of appeal usually occurs before any appellate
counsel has even been appointed and certainly before the record has been
assembled or trial transcripts generated. As a practical matter, then,
defendants must file their notices of appeal before they possess the
materials necessary to determine what specific claims, if any, would be
appropriate to raise in their opening briefs. See Ariz. R. Crim. P. 31.13(a)(1)
(appellant’s opening briefs not due until forty days after appellate clerk
distributes notice under Ariz. R. Crim. P. 31.9(e) that record is complete);
Ariz. R. Crim. P. 31.10(a)(5)-(7) (requiring opening briefs to support
statements of case and facts, as well as arguments presented on appeal, with
appropriate citations to record).
14
STATE v. SANCHEZ
Opinion of the Court
Conversely, if pre-judgment orders denying a new trial are not included
among those challengeable in an appeal of the final judgment, this court
would be illogically prevented from considering a non-final order, crucial
to the ultimate judgment of conviction, when a defendant has properly
noticed and appealed the final judgment.
¶40 Thus, when Sanchez filed a notice of appeal from the
“judgment of guilt and sentence,” he invoked the subject matter jurisdiction
of our court, under logical and long-settled principles of appellate review,
to consider his specific claim that the trial court had erred in denying his
motion for new trial. And, because an order denying such a motion for new
trial is intertwined with the validity of the final judgment, an appeal of the
final judgment placed the state on sufficient notice that a challenge to that
order might be a potential ground for appeal. 11 The state agrees that it
received sufficient notice of that claim here.
¶41 The majority nonetheless holds that, because § 13-4033(A)(2)
separately itemizes “an order denying a motion for a new trial” among the
grounds to invoke our jurisdiction, a defendant must separately appeal that
order to obtain review. But the pertinent language of the statute sets forth
no such requirement. It merely itemizes the orders from which an appeal
“may be taken.”
¶42 Nor does any other language in § 13-4033 suggest that the
several pathways to trigger our jurisdiction are mutually exclusive. No
language suggests that appellants must specify all potential grounds for
jurisdiction itemized in § 13-4033 so long as they specify one that
encompasses the underlying claims they might bring.
11Indeed, the contents of Sanchez’s notice of appeal suggested that
he might challenge the denial of his motion for new trial. Within his notice,
he expressly sought a transcript of the hearing on that motion. Even
assuming our rules impose a duty to separately notice such an appeal, the
majority’s refusal to accept that document as sufficient notice contradicts
our prior jurisprudence, which has repeatedly forgiven technical,
non-prejudicial errors, in notices of appeal. See, e.g., State v. Rasch, 188 Ariz.
309, 311 (App. 1996) (incorrect cause number not jurisdictional); Smith, 171
Ariz. at 503-04 (notice of appeal from “sentence” sufficient to trigger
jurisdiction to review underlying conviction); State v. Good, 9 Ariz. App.
388, 392 (1969) (“mere technical errors in a notice of appeal” do not render
notice ineffective, so long as appellee has not been prejudiced).
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STATE v. SANCHEZ
Opinion of the Court
¶43 As a practical matter, the grounds itemized to invoke our
jurisdiction frequently overlap. As explained above, and most pertinent
here, the validity of a “final judgment of conviction” pursuant to
§ 13-4033(A)(1) necessarily depends on a denial of any pre-judgment
motion for a new trial, something that can be a separate ground for appeal
under § 13-4033(A)(2). The lawfulness and length of a “sentence”
appealable pursuant to § 13-4033(A)(4) frequently depend on the
lawfulness and nature of the “judgment of conviction.” And, as the
majority acknowledges, many legal bases for a motion for new trial arise
during the trial itself and may be separately appealed as simple trial error
when challenging the “final judgment of conviction.” 12 In fact, most
specific appellate claims of trial error sound in more than one of the general
statutory bases for appeal identified in § 13-4033.13 We can assume that the
legislature was aware of this overlap when drafting § 13-4033. No practical
logic explains why the legislature would compel a criminal defendant to
separately and redundantly specify all conceivable pathways to invoke our
jurisdiction over the claims they plan to raise. This is especially so when,
12 Because of this, the majority maintains that any loss of our
jurisdiction over denials of motions for new trial would practically impose
no hardship on the criminal defendants seeking to overturn their
convictions. My colleagues overlook that several of the grounds specified
for moving for a new trial require further factual development and a trial
court ruling unique to the Rule 24 process. See Ariz. R. Crim. P. 24.1
(c)(2)-(3) (authorizing defendants to challenge misconduct by state or juror
misconduct), (d) (authorizing presentation of affidavits or testimony from
witnesses relating to conduct of juror, court official, or third person).
Furthermore, many claims of trial error arise from unexpected events
during trial that require a trial court to rule without comprehensive briefing
from the parties. A motion for new trial provides an opportunity for the
parties to do so and for the trial court to reconsider its rulings in light of
that briefing. This, in turn, allows appellate courts to consider those more
comprehensive arguments.
13 Almost all interlocutory claims simultaneously affect both the
“judgment of conviction” and “sentence.” Our court has undoubted
jurisdiction over such legally indistinguishable claims when a defendant
files a traditional notice of appeal from “a judgment of conviction and
imposition of sentence,” the filing deadline for which is provided together
at Rule 31.2(a)(2)(A).
16
STATE v. SANCHEZ
Opinion of the Court
as here, those they have noticed would logically encompass those they have
not.
¶44 Although several sections of our procedural rules facilitate a
potential appeal from an order denying a motion for new trial, see, e.g., Ariz.
R. Crim. P. 31.2(a)(2)(B), 31.3(b)(1), none of those provisions suggest that a
defendant must separately appeal such an order to trigger our jurisdiction.
The majority maintains that Rule 31.2(a)(2)(B) implies such a requirement.14
But that provision simply provides the pertinent deadline in the event a
defendant chooses to separately appeal a motion for new trial. No language
in that subsection prohibits a defendant from electing instead to invoke our
jurisdiction over the same topic by simply appealing the judgment.
¶45 Other provisions in our rules suggest that denials of motions
for new trial would usually not be separately appealed. Rule 24 itemizes
three separate avenues for litigating “post-verdict” motions challenging a
conviction. Ariz. R. Crim. P. 24.1 (articulating grounds and procedural
requirements for filing “Motion for New Trial”); Ariz. R. Crim. P. 24.2
(articulating grounds and pertinent deadlines for “Motion to Vacate
Judgment”); Ariz. R. Crim. P. 24.3 (articulating grounds and procedural
requirements for seeking “Modification of Sentence”). Two of the three
rules provide specific deadlines for appealing a ruling on such motions and
for coordinating appeals with any pre-existing appeals from the judgment
and/or sentence. See Ariz. R. Crim. P. 24.2(b)-(d); Ariz. R. Crim. P. 24.3(a),
(c). Tellingly, Rule 24.1 contains no parallel provisions. That rule,
procedurally authorizing motions for new trial, neither addresses deadlines
for a separate appeal nor provides direction for coordinating such appeals
with an appeal from the judgment or sentence.
¶46 This framing suggests a recognition that Rule 24.1 orders are
almost always non-final, issued pre-judgment, and therefore will more
commonly and logically be appealed as part of an appeal of the final
judgment. By contrast, the post-judgment motions described in rules 24.2
and 24.3 must necessarily have separate appeal deadlines from the prior,
usually expired, deadlines to appeal the underlying judgment or sentence.
¶47 Finally, our supreme court has directed us to construe our
rules of criminal procedure so as “to secure simplicity in procedure” and
14That subsection reads: “A notice of appeal from a judgment or
order other than (A) must be filed no later than 20 days after entry of the
judgment.”
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STATE v. SANCHEZ
Opinion of the Court
“the elimination of unnecessary delay and expense.” Ariz. R. Crim. P. 1.2.
This should further discourage us from reading those rules to erect notice
requirements for triggering our appellate jurisdiction that are so at odds
with efficient and customary appellate practice 15 —and that are not
compelled by the express language of any of those rules or our
jurisdictional statutes. Notably, Arizona’s jurisprudence repeatedly
emphasizes a preference for reaching appeals on their merits and for
avoiding piecemeal appeals. See, e.g., Rodriguez v. Williams, 104 Ariz. 280,
283 (1969) (“We have frequently held that we prefer to determine cases on
their merits rather than on points of procedure.”); State v. Youngblood, 173
Ariz. 502, 504 (1993) (“Piecemeal litigation is an evil to be avoided.”). The
majority’s interpretation of our rules contradicts both of these bedrock
principles.
¶48 The majority’s conclusion also disregards our own court’s
most comprehensive and long-settled jurisprudence on the necessary
contents of a notice of appeal in criminal matters. In State v. Smith, we
determined that our subject matter jurisdiction is effectively triggered by
the invocation of one properly noticed ground absent any prejudice to the
appellee. 171 Ariz. 501, 504 (App. 1992). There, we specifically determined
that a notice of appeal from a defendant’s “sentence” was sufficient to
trigger the court’s jurisdiction over potential issues related to the
conviction. Id. We so concluded although § 13-4033(A)(1) then, as now,
separately itemized a “final judgment of conviction” as a basis for appeal.
15 Until this court issued its opinion in State v. Wilson in 2022, we
routinely reached appellate challenges to denials of pre-judgment motions
for new trial when defendants had not separately appealed those denials.
E.g., State v. Olague, 240 Ariz. 475, ¶¶ 1, 4, 16-22 (App. 2016); State v. West,
238 Ariz. 482, ¶¶ 1, 11-12, 30-31, 46-50 (App. 2015); State v. Welch, 236 Ariz.
308, ¶¶ 1, 12, 17-18, 23 (App. 2014); State v. Davis, 226 Ariz. 97, ¶¶ 1, 4-8
(App. 2010); State v. Armenta, No. 2 CA-CR 2021-0024, ¶¶ 1, 28 (Ariz. App.
Aug. 31, 2022) (mem. decision); State v. Ortiz, No. 2 CA-CR 2020-0045,
¶¶ 14, 33-38 (Ariz. App. Mar. 31, 2021) (mem. decision); State v. Ruelas, No.
2 CA-CR 2016-0344, ¶¶ 1, 17-19 (Ariz. App. May 30, 2018) (mem. decision);
State v. Congress, No. 2 CA-CR 2015-0097, ¶¶ 1, 25-31 (Ariz. App. Feb. 4,
2016) (mem. decision); State v. Lewis, No. 2 CA-CR 2012-0181, ¶¶ 1, 16-19
(Ariz. App. Jan. 28, 2013) (mem. decision); State v. Hursey, No. 2 CA-CR
2008-0265, ¶¶ 1, 16, 18 (Ariz. App. Apr. 30, 2009) (mem. decision); State v.
Elam, No. 2 CA-CR 2007-0388, ¶¶ 1, 4-7 (Ariz. App. Dec. 19, 2008) (mem.
decision); State v. Staples, No. 2 CA-CR 2006-0204, ¶¶ 1, 6, 10, 13-17 (Ariz.
App. Sept. 27, 2007) (mem. decision).
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STATE v. SANCHEZ
Opinion of the Court
Smith, 171 Ariz. at 503-04. Citing both federal and state cases, we held that
“the notice of appeal serves as a notice pleading rather than a jurisdictional
limitation on the grounds the court may consider on appeal.” Id. at 504.
Our supreme court has recently endorsed this non-technical approach in
assessing whether appellate jurisdiction is properly triggered by a notice of
appeal. Shea v. Maricopa County, 255 Ariz. 116, ¶ 20 (2023) (effective notice
of appeal encompasses any document filed that states intention to appeal
trial court’s judgment or order, and expressing supreme court’s preference
for looking to substance rather than form when interpreting procedural
devices). That approach should dispose of the issue before us.
¶49 The majority counters that, after Smith, our legislature
repealed a companion statute, former A.R.S. § 13-4035, which had required
our court to conduct mandatory review of “all rulings affecting the
judgment” expressly including “the action of the court below in denying a
new trial.” But, § 13-4035 related to the scope of our court’s compulsory
review of potential unbriefed claims, not our jurisdiction. See Smith, 171
Ariz. at 504-05 (expressly distinguishing between jurisdictional question
under § 13-4033 and “scope of review” question related to mandatory
fundamental error review under § 13-4035). Thus, to the extent the majority
maintains that the repeal of § 13-4035 expressed a legislative intent to
deprive this court of jurisdiction over appellate grounds not separately
noticed, it overlooks the markedly different topics addressed by the two
statutes in question.
¶50 Notably, the legislature has not substantively altered any
pertinent provision in § 13-4033 since we issued our opinion in Smith.
Given the distinction the Smith court identified between § 13-4033 and
§ 13-4035, expressly clarifying that the former addresses our jurisdiction
while the latter addressed only the scope of mandatory review, we can
assume that when the legislature chose to repeal only the latter statute, it
was not offended by Smith’s recent application of the former.
¶51 The majority chooses instead to follow cursory reasoning
from another panel of this court. In State v. Wilson, that panel tersely
determined that an appeal from a “judgment and sentence” did not endow
this court with jurisdiction over a challenge to a denial of a motion for new
trial. 253 Ariz. 191, n.3 (App. 2022). Its conclusory reasoning consisted of
one sentence, relegated to a footnote, irrelevant to the outcome of the case,
supported only by parenthetical references to the pertinent statute and
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STATE v. SANCHEZ
Opinion of the Court
procedural rule.16 The sum total of its implicit reasoning: a defendant must
appeal separately because § 13-4033 separately itemizes denials of motions
for new trial as a ground for appeal, and Rule 31.2 requires a notice of
appeal to identify the order, judgment, or sentence that is being appealed.
That footnote demonstrated no awareness of the contrary conclusion of our
prior comprehensive opinion in Smith. Nor did it address the crux of our
prior reasoning therein. Having failed to do either, Wilson can claim no
primacy over Smith as authority based on its recency. In essence, then, we
address conflicting holdings—one cursory and the other comprehensive—
authored by two different panels of our court. See Smith, 171 Ariz. at 503-05
(comprehensively addressing issue with reference to both federal and state
jurisprudence).
¶52 In sum, we should be guided by the pertinent statute, the
applicable rules, and the thrust of our jurisprudential reasoning. None of
them require that defendants separately appeal an order denying a
pre-judgment motion for new trial. To the contrary, settled understandings
of efficient appellate procedure—that appeals should await a final
judgment, that piecemeal appeals should be avoided, and that notices of
appeal need identify only the final judgments challenged not, specific
underlying claims—all suggest that defendants should retain the
customary option of merging a challenge to a pre-judgment denial of a
motion for new trial into an appeal of the judgment. I join the majority
opinion as to all other issues addressed.
16The court was not required to reach the question because it had
remanded for a new trial on other grounds. This may explain its cursory
treatment of the issue.
20