State of Arizona v. Anthony Connue Serrano , 234 Ariz. 491 ( 2014 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
ANTHONY CONNUE SERRANO,
Appellant.
No. 2 CA-CR 2012-0215
Filed May 7, 2014
Appeal from the Superior Court in Pima County
No. CR20103186001
The Honorable Richard S. Fields, Judge
VACATED IN PART
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
By Frank P. Leto, Assistant Public Defender, Tucson
Counsel for Appellant
STATE v. SERRANO
Opinion of the Court
OPINION
Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Espinosa concurred.
E C K E R S T R O M, Judge:
¶1 Following a jury trial, appellant Anthony Serrano was
convicted of unlawful imprisonment, assault, and sexual abuse.
Almost three weeks after sentencing, the trial court ordered Serrano
to register as a sex offender. Because this irregular post-sentencing
order did not extend the time for taking an appeal, and because
Serrano did not file a timely notice of appeal from his judgment and
sentences, we lack jurisdiction to review those matters.1 However,
we vacate the registration order, which was appealed in a timely
fashion, because the court was not authorized to enter this order
after sentencing.
Factual and Procedural Background
¶2 On April 5, 2012, the trial court imposed concurrent
prison sentences, the longest of which was six years. The next day
the state filed a “motion for clarification,” without citing any
authority for the request. The document stated that “the Court did
not make a determination regarding registration,” and it
“request[ed] that the Court make a determination regarding sex
offender registration” in view of Serrano’s conviction for sexual
abuse of an adult. The court then set a hearing on the matter and
continued it when Serrano refused transport.
¶3 At the hearing on the state’s motion, the prosecutor
again asked the trial court “for clarification” on the issue of
1Serrano still may seek relief pursuant to Rule 32.1(f), Ariz. R.
Crim. P. See State v. Whitman, 684 Ariz. Adv. Rep. 7, n.2 (Ariz.
Apr. 9, 2014).
2
STATE v. SERRANO
Opinion of the Court
discretionary sex offender registration because the court had not
stated at sentencing whether it would require Serrano to register.
Serrano addressed the issue solely on the merits and asked the court,
in its discretion, not to order registration. He made no objection to
the proceedings on the grounds they were illegal or unauthorized.
In fact, Serrano maintained “sentencing . . . legally . . . wasn’t
completed because we needed to complete this task.” He also asked
the court for an express finding, which the court provided, that
“sentencing is now complete for purposes of appeal.” The court’s
registration order was dated April 24, 2012, and filed April 27.
Serrano filed a notice of appeal on May 2, 2012, challenging the
“Judgment and Conviction” as well as the April 24 registration
order.
Discussion
¶4 Despite both parties’ assertions that we have
jurisdiction over this appeal, we have an independent duty to
examine and confirm our appellate jurisdiction. State v. Bejarano, 219
Ariz. 518, ¶ 2, 200 P.3d 1015, 1016 (App. 2008). Parties cannot confer
jurisdiction upon this court by agreement, Soltes v. Jarzynka, 127
Ariz. 427, 429, 621 P.2d 933, 935 (App. 1980), by stipulation, In re
Maricopa Cnty. Juv. Actions Nos. J-86384 & JS-2605, 122 Ariz. 238, 239-
40, 594 P.2d 104, 105-06 (App. 1979), or, as the state suggests, by
invited error or forfeiture, see Thomas v. Thomas, 203 Ariz. 34, ¶ 9, 49
P.3d 306, 308 (App. 2002). Our jurisdiction is provided and limited
by law. Ariz. Const. art. VI, § 9; State v. Avila, 147 Ariz. 330, 333, 710
P.2d 440, 443 (1985); State v. Wilson, 207 Ariz. 12, ¶ 4, 82 P.3d 797, 799
(App. 2004). Hence, the legal conclusions reached by the parties and
the trial court are irrelevant to our de novo analysis of the issues
affecting our jurisdiction. See Bejarano, 219 Ariz. 518, ¶ 2, 200 P.3d at
1017.
Modification and Appeal of Judgment and Sentence
¶5 “Jurisdiction to entertain a criminal appeal is vested in
this court by the timely filing of a notice of appeal pursuant to a
jurisdictional statute.” State v. Smith, 171 Ariz. 501, 503, 831 P.2d
877, 879 (App. 1992). As our supreme court recently clarified in State
v. Whitman, 684 Ariz. Adv. Rep. 7, ¶ 1 (Apr. 9, 2014), the
3
STATE v. SERRANO
Opinion of the Court
pronouncement of sentence begins the twenty-day period for filing a
notice of appeal under Rule 31.3, Ariz. R. Crim. P. This means the
deadline for filing the notice of appeal here was April 25. See Ariz.
R. Crim. P. 1.3(a). Serrano’s May 2 notice was therefore untimely,
and we lack jurisdiction over his appeal from the judgment and
sentence. See A.R.S. § 13-4033(A)(1), (4) (allowing defendant to
appeal final judgment or sentence).
¶6 Contrary to the state’s arguments in its answering brief,
the post-sentencing developments here had no effect on the
judgment, sentences, or time for taking an appeal. In short, the case
was final at sentencing and not subject to further modification or
orders. Although the state styled its motion below as one for
“clarification,” implying there was an “error[] in the record arising
from oversight or omission” that was subject to correction under
Rule 24.4, Ariz. R. Crim. P., the state’s request was not authorized by
that rule. The motion did not call upon the trial court to correct or
“clarify the record and make sure it accurately reflected the sentence
originally imposed,” as is the purpose of Rule 24.4. State v. Lujan,
136 Ariz. 326, 329, 666 P.2d 71, 74 (1983). As the state
acknowledged, the court simply had not addressed the topic of sex
offender registration at sentencing, and the record accurately reflects
this fact. Thus, the state did not seek “to correct the record to make
it speak the truth” as contemplated by Rule 24.4. State v. Pyeatt, 135
Ariz. 141, 143, 659 P.2d 1286, 1288 (App. 1982). Instead, the state
sought “to supply judicial action” and “cause an order . . . that was
never previously made . . . to be placed upon the record,” which
Rule 24.4 does not permit. Pyeatt, 135 Ariz. at 143, 659 P.2d at 1288.
¶7 As the state implicitly acknowledged in its motion, the
trial court failed to address the issue of sex offender registration at
sentencing because the parties had made no such request, and the
court was not legally required to do so sua sponte. Section 13-3821,
A.R.S., automatically imposes registration requirements on
individuals convicted of the criminal offenses set forth in subsection
(A) of the statute; subsection (C), in turn, gives a trial court
discretion to order registration in other specified situations. Fisher v.
Kaufman, 201 Ariz. 500, ¶¶ 9-10, 38 P.3d 38, 40 (App. 2001). When, as
here, a person is convicted of sexual abuse against an adult,
4
STATE v. SERRANO
Opinion of the Court
registration is not mandated by the statute but may be required in
the court’s discretion. State v. Ray, 209 Ariz. 429, ¶ 8, 104 P.3d 160,
163 (App. 2004). Section 13-3821(C) provides, in relevant part, that
“the judge who sentences a defendant for any violation of chapter 14
. . . may require the person who committed the offense to register
pursuant to this section.” (Emphasis added.) Neither our rules of
procedure nor our statutes require judges to address the issue of sex
offender registration at sentencing when doing so is discretionary.
See Ariz. R. Crim. P. 26.10, 26.11 (specifying court’s obligations at
sentencing). Cf. Ariz. R. Crim. P. 27.12(a), (d) (requiring court in
probation review hearing to consider whether to continue sex
offender registration for certain young offenders who committed
crimes as minors).
¶8 We do not “require trial judges sua sponte to rule on
issues not raised before them,” State v. Cannon, 148 Ariz. 72, 76, 713
P.2d 273, 277 (1985), and it is generally the parties’ responsibility to
seek discretionary orders. See, e.g., State v. Clabourne, 142 Ariz. 335,
346, 690 P.2d 54, 65 (1984) (preparation of new pre-sentence report);
State v. Romo, 111 Ariz. 70, 70, 523 P.2d 501, 501 (1974)
(postponement of sentencing for competency examination); State v.
Longoria, 123 Ariz. 7, 10, 596 P.2d 1179, 1182 (App. 1979) (severance,
continuance, or mistrial); see also State v. Gipson, 229 Ariz. 484, ¶ 15,
277 P.3d 189, 192 (2012) (noting adversary system permits counsel to
choose tactics). Here, had the state filed its post-sentencing motion
before sentencing had occurred, then the trial court’s silence on the
issue would be treated as a denial of the state’s request for a
registration order. “A motion that is not ruled on is deemed denied
by operation of law.” State v. Hill, 174 Ariz. 313, 323, 848 P.2d 1375,
1385 (1993). A fortiori, a motion that is never made has the same
result.
¶9 In criminal proceedings, the judgment and sentence are
“complete and valid” upon oral pronouncement, Ariz. R. Crim. P.
26.16(a), and cannot be modified thereafter except as provided by
Rule 24.3, Ariz. R. Crim. P. State v. Thomas, 142 Ariz. 201, 204, 688
P.2d 1093, 1096 (App. 1984). Contrary to the state’s assertion, trial
courts lack inherent authority to modify a criminal judgment and
sentence. Our supreme court definitively resolved this question
5
STATE v. SERRANO
Opinion of the Court
with the following passage in State v. Falkner, 112 Ariz. 372, 374, 542
P.2d 404, 406 (1975):
Does the court have inherent power to
modify a sentence? The answer is in the
negative. There is no such power in the
superior court. The Supreme Court’s
Advisory Committee on Criminal Rules
suggested this grant of jurisdiction to the
trial court, but it was rejected. See Arizona
Proposed Rules of Criminal Procedure,
July 15, 1972, Proposed Rule 27.3(b).
Therefore, the trial court’s jurisdiction in
post-trial motions is limited to that set out
in the Rules, and an exercise of that
jurisdiction is permissible only upon the
grounds specified therein.
Accord State v. Superior Court, 124 Ariz. 288, 289, 603 P.2d 915, 916
(1979); State v. Guthrie, 110 Ariz. 257, 258, 517 P.2d 1253, 1254 (1974)
(“As we have held in the past the superior court has no jurisdiction
to modify its original judgment.”).
¶10 The cases relied upon by the state do not address or
otherwise undermine this holding of Falkner. In State v. Mann, our
supreme court stated that “courts have the inherent authority to
clarify or modify their own judgments and orders.” 188 Ariz. 220,
230, 934 P.2d 784, 794 (1997). That case, however, exclusively
concerned post-sentencing clarification, not modification or issuance
of new orders. The trial judge in Mann had denied a motion for
reconsideration, he “merely explained the reasons for a few of his
previous findings,” and he held an additional hearing for the sole
purpose of “clarif[ying his] . . . reasoning on a sentence already
imposed.” Id. at 229-30, 934 P.2d at 793-94. The supreme court’s
statement in Mann regarding modification therefore did not address
or resolve the question here and, to the extent it might be applicable
by logic, it was dictum, because neither the judgment nor the
sentence had been altered in that case. See Town of Chino Valley v.
City of Prescott, 131 Ariz. 78, 81, 638 P.2d 1324, 1327 (1981) (“Dictum
. . . is a court’s statement on a question not necessarily involved in
6
STATE v. SERRANO
Opinion of the Court
the case and, hence, is without force of adjudication.”). The state’s
reliance on Skinner v. Superior Court is similarly misplaced, as that
case concerned a pretrial dismissal without prejudice, not the
modification of a final judgment and sentence. 106 Ariz. 287, 288,
475 P.2d 271, 272 (1970). In short, no controlling authority is
contrary to our supreme court’s express statement in Falkner that
modification can occur only pursuant to Rule 24.3.
¶11 Under that rule, modification is permitted only if a
sentence is “unlawful . . . or . . . imposed in an unlawful manner.”
Ariz. R. Crim. P. 24.3. The sentences here were not unlawful, and
the state has not argued otherwise. Nor were the sentences imposed
without regard for statutory and procedural rules. The absence of a
registration order, therefore, did not allow the court to modify the
judgment or sentences under Rule 24.3. Accordingly, the time for
appeal was unaffected by the developments after the
pronouncement of sentence.
Validity and Appeal of Registration Order
¶12 As noted, Serrano’s notice of appeal challenges not only
the judgment and sentences, but the registration order itself, and his
opening brief asserts the trial court lacked “power, authority, or
jurisdiction” to order sex offender registration after sentencing. We
need not address whether the trial court exceeded its jurisdiction
here because, at minimum, we conclude the order was unauthorized
and invalid, and Serrano is consequently entitled to relief from it.
¶13 The legislature has specified in § 13-3821 that a sex
offender registration order generally must be made at sentencing, if
at all.2 As we noted above, the statute authorizes “the judge who
2 The terms of § 13-3821 do not prohibit a trial court from
requiring sex offender registration following a suspended sentence
and revocation of probation, and we do not address that situation
here. Similarly, this case does not concern registration of a juvenile
offender, for whom the statute prescribes different procedures. See
§ 13-3821(D); In re Javier B., 230 Ariz. 100, ¶ 1, 280 P.3d 644, 645
(App. 2012) (holding “an order imposing sex offender registration
7
STATE v. SERRANO
Opinion of the Court
sentences” the defendant to order registration, § 13-3821(C), and it
further provides that “the clerk of the superior court . . . shall notify
the sheriff” of a discretionary registration order “within ten days
after entry of the judgment.” § 13-3821(K). The entry of judgment
occurs at sentencing. See Ariz. R. Crim. P. 26.2; Whitman, 684 Ariz.
Adv. Rep. 7, ¶ 1. Thus, the legislature has demonstrated a clear
intent that any discretionary order that a person register as a sex
offender must occur at the time of sentencing. See State ex rel. Corbin
v. Pickrell, 136 Ariz. 589, 594, 667 P.2d 1304, 1309 (1983) (recognizing
language of statute as clearest indicator of legislative intent).
¶14 By requiring such orders to be made at that time, the
legislature has ensured that defendants receive important
procedural protections, such as representation by counsel, as well as
actual notice of any registration obligation. See State v. Henry, 224
Ariz. 164, n.5, 228 P.3d 900, 902 n.5 (App. 2010) (noting due process
right to notice of registration requirement); see also State v. Stummer,
219 Ariz. 137, n.7, 194 P.3d 1043, 1050 n.7 (2008) (observing “sex
offender status has significant and far-reaching consequences”);
Fushek v. State, 218 Ariz. 285, ¶¶ 17, 30, 183 P.3d 536, 541, 543-44
(2008) (finding sex offender registration sufficiently severe
consequence to trigger certain constitutional procedural rights). The
legislature also has followed the general public policy of Arizona
against piecemeal appeals. See Bilke v. State, 206 Ariz. 462, ¶ 10, 80
P.3d 269, 271 (2003). It has not authorized the court, as it has in
other contexts, to make a post-sentencing order as to sex offender
registration that will give rise to a separate appeal. Cf. A.R.S. § 13-
805(A) (granting trial court jurisdiction to make certain payment-
related orders); State v. Fancher, 169 Ariz. 266, 266 n.1, 818 P.2d 251,
251 n.1 (App. 1991) (noting restitution order separately appealable,
despite general public policy).
¶15 Under § 13-4033(A)(3), a party may appeal an order
made after judgment that affects the party’s substantial rights. Even
when an order is void or invalid, it “remain[s] on record with
practical effect until subsequently removed by court order.” State ex
after the juvenile court’s initial disposition can be a final, appealable
order”).
8
STATE v. SERRANO
Opinion of the Court
rel. Morrison v. Superior Court, 82 Ariz. 237, 241, 311 P.2d 835, 837
(1957). Thus, our supreme court has held that even void orders are
appealable under the terms of this statute. Id. at 239, 241, 311 P.2d at
837, 838.3 For this reason, notwithstanding that discretionary sex
offender registration orders are not authorized after sentencing, we
retain jurisdiction to review and vacate such orders on appeal.
Conclusion
¶16 In sum, none of the post-sentencing developments here
extended the time for Serrano to appeal his convictions and
sentences. The judgment and sentences were not subject to
modification under Rule 24.3, because the trial court’s failure to
order sex offender registration was not illegal. And because the
registration order entered weeks after sentencing was invalid, it had
no effect on the final judgment and sentences entered on April 5,
2012. Thus, the time for taking an appeal from the judgment and
sentences began to run on that date and expired before Serrano filed
his notice of appeal. We therefore lack jurisdiction over Serrano’s
appeal from the judgment and sentences. Because the April 24
registration order is one that may be appealed pursuant to § 13-
4033(A)(3), we have jurisdiction over the appeal from that order and
vacate it because the legislature has specified that such registration
orders must be entered at the time of sentencing.
3 The current language in § 13-4033(A)(3) previously was
found in A.R.S. § 13-1712(5) (1956).
9