State v. Soto

                    SUPREME COURT OF ARIZONA
                             En Banc

STATE OF ARIZONA,                 )     Arizona Supreme Court
                                  )     No. CR-10-0089-PR
                                  )
                        Appellee, )     Court of Appeals
                                  )     Division Two
                                  )     Nos. 2 CA-CR 08-0405
                                  )           2 CA-CR 08-0406
                 v.               )           (Consolidated)
                                  )
                                  )     Pima County
                                  )     Superior Court
JESUS HUMBERTO SOTO,              )     Nos. CR20031147
                                  )           CR20040081
                                  )
                       Appellant. )     O P I N I O N
_________________________________ )

          Appeal from the Superior Court in Pima County
              The Honorable John S. Leonardo, Judge
________________________________________________________________

          Opinion of the Court of Appeals, Division Two
                223 Ariz. 407, 224 P.3d 223 (2010)

              OPINION VACATED; APPEALS REINSTATED;
                            REMANDED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL                        Phoenix
     By   Kent E. Cattani, Chief Counsel,
          Capital Litigation Section
          Laura Chiasson, Assistant Attorney General            Tucson
Attorneys for State of Arizona

ISABEL G. GARCIA, PIMA COUNTY LEGAL DEFENDER              Tucson
     By   Robb P. Holmes, Assistant Legal Defender
Attorneys for Jesus Humberto Soto
________________________________________________________________

B E R C H, Chief Justice

¶1       We   granted   review   in   this   case   to   determine   the

constitutionality of Arizona Revised Statutes (“A.R.S.”) section
13-4033(C)    (2010).        Since     we    granted      review,      the     State   has

conceded that the statute does not apply to the Defendant’s

cases.    We therefore vacate the opinion of the court of appeals.

¶2          Soto was convicted in two cases in 2004.                      He absconded

before sentencing and was not returned to custody until October

2008.     He was subsequently sentenced on December 1, 2008.                            On

September 26, 2008, just before Soto’s return to custody, A.R.S.

§ 13-4033(C) became effective.               See 2008 Ariz. Sess. Laws, ch.

25, § 1 (2d Reg. Sess.).            That subsection prohibits a defendant

from     appealing     a    final      judgment      of     conviction          “if     the

defendant’s absence prevents sentencing from occurring within

ninety days after conviction.”              A.R.S. § 13-4033(C).

¶3          Soto     appealed       his     convictions.             After     initially

dismissing    the     appeals,      the     court   of     appeals        reconsidered,

reinstated      the        appeals,         and     held        that       § 13-4033(C)

unconstitutionally         infringed      Soto’s    right       to   an   appeal      under

Article 2, § 24 of the Arizona Constitution.                         The State sought

review.     We granted review and asked the parties to address in

their     supplemental        briefs         whether        §        13-4033     applies

retroactively to defendants convicted before its effective date.

¶4          In its supplemental briefing, the State conceded for

the first time that § 13-4033 does not apply to Soto, correctly

reasoning that the statute does not apply to persons who were

returned to custody within ninety days of September 26, 2008.

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¶5             Based   on     the   State’s     concession   that       A.R.S.    §     13-

4033(C)   does     not      apply   to   Soto,    we    decline    to    rule     on   any

constitutional         or   retroactivity       issues    this    case    might        have

presented.       See Sch. Dist. No. 26 of Yuma Cnty. v. Strohm, 106

Ariz.     7,     9,     469     P.2d     826,     828     (1970)        (noting        that

“Constitutional issues will not be determined unless squarely

presented in a justiciable controversy, or unless a decision is

absolutely necessary in order to determine the merits of the

suit” (citations omitted)).              We therefore affirm the denial of

the State’s motion to dismiss the appeals, vacate the opinion of

the court of appeals, and remand this case to the court of

appeals for further proceedings.



                                         __________________________________
                                         Rebecca White Berch, Chief Justice

CONCURRING:


_____________________________________
Andrew D. Hurwitz, Vice Chief Justice


_____________________________________
W. Scott Bales, Justice


_____________________________________
A. John Pelander, Justice


_____________________________________
Michael D. Ryan, Justice (Retired)*


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*Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Michael D. Ryan, Retired Justice of the Supreme
Court of Arizona, was designated to sit on this matter.




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