State v. Anderson

OPINION

MOELLER, Vice Chief Justice.

STATEMENT OF THE CASE

Richard Harry Anderson (defendant) pled guilty to conspiracy to transport marijuana for sale. At sentencing, the trial court sentenced him to seven years imprisonment and ordered him to pay a $2,740.00 fine. Although both the applicable statutes and the plea agreement required imposition of a $100.00 felony assessment fee and an $8.00 time payment fee, the trial court did not impose those fees at the time of the sentencing hearing. However, following the sentencing hearing, the trial court, by minute entry, ordered defendant to pay the felony assessment and time payment fees.

On appeal, defendant challenged the fees on the basis that they were not imposed on him at the time of the sentencing hearing. The court of appeals upheld the imposition of the $8.00 time payment fee, holding that it could be added to the sentence by later minute order. The court concluded, however, that the felony assessment fee could not be so added.

The court of appeals recognized the authority of the trial court to correct an illegal sentence prior to an appeal, and further recognized that imposition of the felony assessment fee was mandatory. The court, however, refused to remand for imposition of the felony assessment fee, holding that, absent a cross-appeal by the state, it lacked subject matter jurisdiction to remand.

Because the issue presented is one of wide applicability in criminal appellate litigation, we granted the state’s petition for review limited to the jurisdictional issue. We have jurisdiction pursuant to Ariz. Const, art. 6, § 5(3) and A.R.S. § 12-120.24.

ISSUE

In the absence of a cross-appeal by the state, does the court of appeals have subject matter jurisdiction to remand for re-sentencing if it finds that a sentence was improperly imposed?

DISCUSSION

In the court of appeals, defendant’s challenge to the felony assessment was that it should have been imposed at the sentencing hearing and not by a later minute order. The state argued that, because the assessment is mandatory, the trial court’s failure to impose it would have resulted in an illegal sentence. The court agreed with the defendant that the trial court had imposed the fee in an improper manner. Defendant, relying on State v. Dawson, 164 Ariz. 278, 792 P.2d 741 (1990), then argued that the court of appeals had no jurisdiction to remand for resentencing because the state had not cross-appealed. The court of appeals concluded, “we do not have subject matter jurisdiction to consider the issue further absent a cross-appeal by the state, as the error is in the defendant’s favor.” State v. Anderson, 169 Ariz. 381, 382, 819 P.2d 967, 968 (App.1991) (citing Dawson, 164 Ariz. 278, 792 P.2d 741). We believe the court erred in interpreting and applying Dawson to the present case.

In Dawson, the trial court failed to follow mandatory sentencing provisions, resulting in the imposition of an illegally lenient sentence. The trial court in Dawson, unlike the trial court here, did not attempt to amend its erroneous sentence prior to appeal. Dawson appealed his conviction on other grounds, and the state did not cross-appeal from the illegally lenient sentence. Instead, the state raised the issue in its answering brief. The court of appeals refused to address the sentencing error, holding that the state had waived the issue by failing to cross-appeal. On review, the state asked this court to hold that appellate courts have a duty to correct an illegally lenient sentence even in the absence of an appeal or cross-appeal by the state. We refused to do so, reasoning that, in the absence of an appeal by the state, an appellate court has no subject matter jurisdiction to consider the issue of an illegally lenient sentence.

This case is distinguishable from Dawson. In Dawson, the state sought to increase the sentence on appeal without having cross-appealed. Here, the defendant has successfully challenged a sentence which was in fact imposed by the trial court. The state is not required to file a conditional cross-appeal to protect its rights in the event a defendant’s challenge to the trial court’s sentence is successful. It is a well established rule of civil law that “if [an] appellee ... seeks only to support or defend and uphold the judgment of the lower court from which the opposing party appeals, a cross-appeal is not necessary.” Maricopa County v. Corporation Comm’n of Arizona, 79 Ariz. 307, 310, 289 P.2d 183, 185 (1955). We apply this principle here.

While Dawson is inapposite, we believe State v. Powers, 154 Ariz. 291, 742 P.2d 792 (1987), is more directly on point. In Powers, the trial court failed to impose the mandatory felony assessment fee during the sentencing hearing. Instead, the trial court imposed the fee by later minute entry. Defendant argued on appeal that, by increasing the sentence after the formal sentencing proceedings, the trial court violated his right against double jeopardy. We held that “even if sentencing decisions do implicate double jeopardy concerns, a trial court constitutionally may increase a sentence that it has imposed in contravention of its statutory authority.” Id. at 295, 742 P.2d at 796. We indicated, however, that the proper method of correcting an illegal sentence is not by minute entry, but in open court with the defendant present. The improperly imposed sentence in Powers was vacated, and the case was remanded for resentencing, without discussion of the necessity of a cross-appeal by the state or of the court’s jurisdiction to remand. Id.

In the present case, the trial court attempted to correct the sentence to conform to the law and to the plea agreement, but did so improperly. When the improperly imposed portion of the sentence was successfully challenged on defendant’s appeal, the court of appeals, under Powers, clearly had jurisdiction to remand to the trial court for a partial resentencing.

DISPOSITION

Justice Corcoran’s special concurrence argues that the trial court committed no error in imposing the felony assessment by minute order outside the presence of the defendant. Because the state has not challenged the merits of the court of appeals’ ruling in this regard, we have considered only the jurisdictional issue presented.

We vacate that portion of the court of appeals’ opinion dealing with the felony assessment fee and remand to the trial court for resentencing on that point if the state elects to so proceed.

FELDMAN, C.J., and JAMES DUKE CAMERON and FRANK X. GORDON, Jr., JJ. (Retired), concur.