The STATE of Arizona, Appellee, v. Brady WHITMAN Jr., Appellant.
No. 2 CA-CR 2012-0006.
Court of Appeals of Arizona, Division 2, Department A.
May 20, 2013.
301 P.3d 226
CONCURRING: JOHN C. GEMMILL, Presiding Judge and PETER B. SWANN, Judge.
CONCURRING: JOHN C. GEMMILL, Presiding Judge and PETER B. SWANN, Judge.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and David A. Sullivan, Tucson, Attorneys for Appellee.
OPINION
ECKERSTROM, Presiding Judge.
¶ 1 Following a jury trial, appellant Brady Whitman Jr. was convicted of four counts of aggravated driving under the influence. The trial court sentenced him to concurrent terms of four months’ incarceration, pursuant to
Jurisdiction
¶ 2 Whitman was sentenced on December 7, 2011. The minute entry documenting this event was filed two days later, on December 9. He filed his notice of appeal on Wednesday, December 28.
¶ 3 The state argues, and Whitman originally conceded, that his notice of appeal was filed one day after the twenty-day deadline provided by
¶ 4 A threshold question we must decide is how to measure the time for filing a notice of appeal.
¶ 5 We interpret court rules using principles of statutory construction. Chronis v. Steinle, 220 Ariz. 559, ¶ 6, 208 P.3d 210, 211 (2009). Our goal when construing a rule is to give effect to the rule-makers’ intent. Id. “To ascertain that intent, we examine ‘the rule‘s context, the language used, the subject matter, the historical background, the effects and consequences, and its spirit and purpose.‘” Id., quoting State v. Aguilar, 209 Ariz. 40, ¶ 23, 97 P.3d 865, 872 (2004). We undertake this review de novo. State ex rel. Thomas v. Newell, 221 Ariz. 112, ¶ 7, 210 P.3d 1283, 1285 (App. 2009).
¶ 6 We find substantial support in Arizona law for Whitman‘s view that the “entry” of judgment and sentence occurs, for the purposes of
¶ 7 Our appellate procedure changed in 1940, when our newly enacted criminal rules measured the time for an appeal from the date that a judgment or sentence was “entered” of record. Ariz. Code Ann., § 44-2509 (1939) (former § 420, Rules of Criminal Procedure); see Ariz. Code Ann., §§ 44-2223, 44-2551 (1939). The “[e]ntry of judgment is a ministerial act required to be done by the clerk of the court as distinguished from the judicial act of pronouncing judgment.” Madrid, 9 Ariz. App. at 209, 450 P.2d at 721; accord Black, 83 Ariz. at 128-29, 317 P.2d at 557-58 (Struckmeyer, J., dissenting); Moulton, 23 Ariz. at 321-22, 203 P. at 563; Black‘s Law Dictionary 613 (9th ed. 2009) (defining “entry of judgment” as “[t]he ministerial act of recording a court‘s final decision, usu. by noting it in a judgment book or civil docket“). Despite other changes to the rules since 1940, the specific provision governing the time for taking an appeal has continued to identify the “entry” of judgment and sentence as the operative event. See
¶ 8 For much of our state‘s history, therefore, we have expressed the view that “[i]n criminal matters, the judgment is complete, valid and appealable only when it is orally pronounced in open court [a]nd entered on the clerk‘s minutes.” State v. Rendel, 18 Ariz. App. 201, 205, 501 P.2d 42, 46 (1972); see State v. Falkner, 112 Ariz. 372, 373, 542 P.2d 404, 405 (1975). More recent cases have echoed this principle. See, e.g., State v. Bolding, 227 Ariz. 82, ¶ 13, 253 P.3d 279, 284 (App. 2011) (“A judgment of conviction is final only when a verdict has been rendered, whether by jury or the trial court after a bench trial, and sentence has been ‘orally
¶ 9 To this day, the “entry” of judgment occurs for the purpose of determining the timeliness of civil appeals when the document is “file-stamped by the clerk.” Haroutunian v. Valueoptions, Inc., 218 Ariz. 541, ¶ 10, 189 P.3d 1114, 1118 (App. 2008); see
¶ 10
¶ 11 A contrary interpretation, however, finds at least equal support in the law. As noted,
¶ 12 It has long been held that the oral pronouncement of a sentence controls over the minutes or written judgment, State v. Jefferson, 108 Ariz. 600, 601, 503 P.2d 942, 943 (1972); State v. Johnson, 108 Ariz. 116, 118, 493 P.2d 498, 500 (1972), and that judgment and sentence are final upon oral pronouncement, with changes generally prohibited thereafter. State v. Thomas, 142 Ariz. 201, 204, 688 P.2d 1093, 1096 (App. 1984); see Falkner, 112 Ariz. at 374, 542 P.2d at 406 (holding trial court lacks inherent authority to modify sentence); see also
¶ 13 Moreover, under our modern rules of criminal procedure, sentencing can occur only with the defendant present in court, absent extraordinary circumstances. State v. Fettis, 136 Ariz. 58, 664 P.2d 208 (1983); see
1. You must file a NOTICE OF APPEAL ... within 20 days of the entry of judgment and sentence. If you do not file a notice of appeal within 20 days you will
lose your right to appeal. The entry of judgment and sentence occurs at the time of sentencing. 2. ... You can file the notice of appeal before you leave the courtroom on the day you are sentenced if you wish.
3. ... [The notice of appeal and documents related to appointment of counsel] must arrive at the clerk‘s office within 20 days after you were sentenced.
¶ 14 When construed together, as rules must be, State v. Treadway, 88 Ariz. 420, 421, 357 P.2d 157, 158 (1960), these provisions suggest that for criminal appeals, the “entry” of judgment and sentence occurs—and the time for filing a notice of appeal begins to run—once a sentence is pronounced in open court, not when the minute entry documenting that event is prepared or filed. We therefore find compelling support in our law for the conclusion that “[e]ither route, sentence or suspended sentence and probation, is final and appealable at the time of its ‘pronouncement’ by the court.” Burton v. Superior Court, 27 Ariz. App. 797, 800, 558 P.2d 992, 995 (1977).
¶ 15 The foregoing demonstrates that the meaning of
a. Entry of Judgment and Sentence. The notation of the exact terms of the judgment and sentence by the clerk in the docket shall constitute the entry of judgment and sentence.
b. Warrant of Authority. When sentence has been pronounced, a certified copy of the entry of judgment and sentence shall be signed by the sentencing judge and furnished forthwith to the appropriate officer. No other warrant or authority is necessary to justify or require the execution of any sentence other than death.
Arizona State Bar Committee on Criminal Law, Arizona Proposed Rules of Criminal Procedure, at 132 (1972) (hereinafter Proposed Rules). The committee‘s comment to subsection (a) explained that “[t]he date of the entry of judgment and sentence is the point from which the 20-day time limit for filing a notice of appeal is measured.” Id. The comment further stated: “This section is derived from
¶ 16 By partially rejecting and modifying this proposed rule, our supreme court may have evinced an intention to make appellate deadlines determined by pronouncement rather than entry. See Falkner, 112 Ariz. at 374, 542 P.2d at 406 (noting court‘s rejection of proposed rule may signify disapproval thereof). But the actual language the court adopted in the rules does not clearly demonstrate the same intent. When the court promulgated the modern
¶ 17 With this last alteration,
¶ 18 Despite outward appearances,
¶ 19 This lack of clarity undermines the very purpose of
¶ 20 As our dissenting colleague points out, and as our above analysis confirms, there is a compelling argument for interpreting the present rules as requiring a notice of appeal to be filed within twenty days of the pronouncement of sentence, not the filing of a sentencing minute entry. Yet the fact remains that the language of the respective rules points in different directions.2 While
¶ 21 To be sure, the optimal solution to this problem would come from our supreme court exercising its rule-making authority and amending the rules to remove all ambiguity concerning the time for taking a criminal appeal. See Craig v. Craig, 227 Ariz. 105, ¶ 15, 253 P.3d 624, 626 (2011) (noting significant changes to procedural rules should occur by rule-making rather than decision). “In the best of all worlds, all judgments or orders from which appeals lie in any kind of case would be clear and free of confusion.” Maricopa Cnty. No. JS-8441, 174 Ariz. at 342-43, 849 P.2d at 1372-73. In the meantime, however, we take guidance in resolving this problem from the precedent set by State v. Brown (Brown I), 23 Ariz. App. 225, 532 P.2d 167 (1975), which our supreme court affirmed and approved in State v. Brown (Brown II), 112 Ariz. 29, 32, 536 P.2d 1047, 1050 (1975).
¶ 22 There, the court faced the question of whether defendants who had been sentenced after revocation of probation were entitled to appeal. Brown II, 112 Ariz. at 30, 536 P.2d at 1048. The court described the relevant rules as being unclear due to a likely “‘inadvertent comment holdover‘” in the overhauled 1973 rules, which made the defendant “face[] ... a confusing situation” regarding his appellate rights. Id. at 31, 536 P.2d at 1049, quoting Brown I, 23 Ariz. App. at 228, 532 P.2d at 170. Ultimately, the court gave the defendant the benefit of this confusion, holding “‘both remedies[, appeal or post-conviction relief,] should remain alternatively available to him’ until amendments to the rules could take effect and remove the inconsistency.” Id., quoting Brown I, 23 Ariz. App. at 228, 532 P.2d at 170.
¶ 23 As in Brown, we hold that under
¶ 24 To the extent our dissenting colleague disagrees with our basic proposition that “‘well-informed persons may reasonably disagree as to [the] meaning’ of the rules of criminal procedure on the question of the time for taking an appeal,” Higginbottom v. State, 203 Ariz. 139, ¶ 13, 51 P.3d 972, 975 (App. 2002), quoting 2A Norman J. Singer, Statutes and Statutory Construction § 45.02, at 17 (6th ed. rev. 2000), we believe it necessary to further discuss some of the dissent‘s reasoning concerning Form 23, the supreme court‘s rule changes in 1973, and
¶ 25 Although the dissent suggests that our supreme court has, through
¶ 26 Moreover, the 1973 rule changes, to the extent they amended the committee proposals, do not necessarily convey the meaning the dissent presumes. Although it could well be that our high court intended
¶ 27 The dissent correctly observes that the supreme court‘s amendments to the committee‘s recommendations also included deleting a portion of the comment that had expressly addressed the topic of appellate timing. Infra ¶ 56. The dissent therefore draws the inference that the supreme court necessarily intended to reject the understanding of appellate timing conveyed by the committee‘s comment: that timing should run from the clerical act of entry. See id. But the dissent overlooks that there are oth-
¶ 28 Perhaps most importantly, had the supreme court formulated a clear intent to depart from Arizona‘s established practice of counting time from the clerical entry of judgment, it seems unlikely the court would have attempted to convey that intent by deleting a committee comment—an action that would not be apparent to litigants either from the adopted text or comments. Instead, the court left
¶ 29 Although the dissent also looks to the heading of
¶ 30 But rather than engaging in “speculation” about the reason for the ambiguity in the rules—or the supreme court‘s likely intention with the 1973 changes—we simply follow the precedent set by Brown I, 23 Ariz. App. at 228, 532 P.2d at 170, and approved by our supreme court in Brown II, 112 Ariz. at 32, 536 P.2d at 1050. As with the Brown decisions, we anticipate that our opinion today will result in functional efficiency rather than chaos within the judicial system. Far from disregarding the undisputed authority of our supreme court to promulgate rules, we tread lightly in attempting to divine the supreme court‘s intent when such intent has not been clearly expressed.
Motion to Suppress
¶ 31 Turning to the merits of Whitman‘s appeal, he argues the trial court erred in denying his motion to suppress because his automobile stop was unconstitutional under the
¶ 32 “[T]he violation of a traffic law provides sufficient grounds to stop a vehicle.” State v. Acosta, 166 Ariz. 254, 257, 801 P.2d 489, 492 (App. 1990). In the state‘s responsive motion below, it presented three alternative bases for finding the traffic stop lawful: Whitman had a malfunctioning stop or signal light, see
¶ 33 The police officer who had stopped Whitman offered testimony supporting all three of these allegations. The officer testified, however, that only the broken taillight and the failure to properly observe the stop sign were the violations that had caused him to perform the traffic stop. Whitman presented evidence to refute these two specific traffic violations listed by the officer, but he offered no evidence to rebut the testimony that he had driven improperly in the middle of the road.
¶ 34
¶ 35 Whitman nevertheless argues that the officer did not actually stop him for a violation of
¶ 36 “‘[T]he
¶ 37 Contrary to Whitman‘s argument, a traffic stop that is objectively lawful is not rendered illegal simply because a police officer fails to appreciate or recite the legal ground that supports the action. See, e.g., United States v. Willis, 431 F.3d 709, 716-17 (9th Cir. 2005) (upholding stop when officer issued no traffic citations but “could have relied on the traffic violation as a justification for stopping” defendant). A trial court properly may consider all the facts known to an officer when making its independent legal determination as to whether he engaged in “objectively justifiable behavior under the
¶ 38 Furthermore, Whitman‘s suppression argument finds little support in the rationale behind the exclusionary rule, which aims to deter unlawful police conduct. See United States v. Calandra, 414 U.S. 338, 347, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974); State v. Pike, 113 Ariz. 511, 514, 557 P.2d 1068, 1071 (1976); State v. Washington, 120 Ariz. 229, 232, 585 P.2d 249, 252 (App. 1978). “The exclusionary rule was designed to deter police misconduct, not objectively reasonable law enforcement activity.” United States v. Cannon, 264 F.3d 875, 880 (9th Cir. 2001). Excluding evidence based upon an officer‘s failure to recite a proper basis for an otherwise lawful stop certainly would provide an incentive for officers to know the law and to be thorough and precise when formulating their grounds for a stop. This, in turn, could serve as a prophylactic measure against the constitutional violations that might result from careless police practice. But stretching the exclusionary rule this far would impose a heavy practical burden on law enforcement, and its minimal deterrent effect would come at a high social cost of providing a windfall to guilty defendants. See Stone v. Powell, 428 U.S. 465, 490-91, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976).
Disposition
¶ 39 In sum, we conclude Whitman timely filed his notice of appeal, but we find no error in the trial court‘s denial of his motion to suppress. We therefore affirm his convictions and disposition.
CONCURRING: JOSEPH W. HOWARD, Chief Judge.
MILLER, Judge, dissenting.
¶ 40 I respectfully dissent from the conclusion that Whitman timely filed his notice of appeal. Although I would join in the majority‘s conclusion that the trial court did not err in denying the motion to suppress, I must dissent because I conclude that the pertinent rules are not ambiguous.
¶ 41 The jurisdictional issue is whether the clause “entry of judgment and sentence” is ambiguous when considered in context of the rules of criminal procedure, specifically including
¶ 42 Equally important, I conclude the majority‘s opinion effectively adopts the federal rule that the Arizona Supreme Court explicitly rejected in 1973. Compare
¶ 43 I would dismiss the appeal for lack of jurisdiction.
Is there ambiguity in the meaning of “entry of judgment and sentence“?
¶ 44 The majority finds ambiguity because
¶ 45 The primary goal of rule interpretation is to discern and give effect to the intent of our supreme court in promulgating a given rule. Chronis v. Steinle, 220 Ariz. 559, ¶ 6, 208 P.3d 210, 211 (2009). Intent includes its effects and purpose, and the context in which the rule is used. State v. Aguilar, 209 Ariz. 40, ¶ 23, 97 P.3d 865, 872 (2004). These rules “are designed to protect the fundamental rights of the individual and to promote simplicity in procedure while eliminating unnecessary delay and expense.” State v. Gomez, 27 Ariz. App. 248, 251, 553 P.2d 1233, 1236 (1976).
¶ 46 Even when a rule is clear, we may examine the rule in the context of other rules and use headings for guidance. Cf. Pleak v. Entrada Prop. Owners’ Ass‘n, 205 Ariz. 471, ¶¶ 7-8, 73 P.3d 602, 605 (App. 2003) (interpreting subsections to conclude statute governing cities does not apply to unincorporated areas). Thus, we must read
¶ 47 The issue is definition and timing. Although the clause “entry of judgment and sentence” appears in eight different rules,5 it generally is used in the same manner as
Rule 26.16 Entry of judgment and sentence; warrant of authority to execute sentence
a. Entry of Judgment and Sentence. The judgment of conviction and the sentence thereon are complete and valid as of the time of their oral pronouncement in open court.
Most important, the text of the rule specifies when judgment and sentence are complete: “as of the time of their oral pronouncement in open court.”
¶ 48 An equally clear statement of entry of judgment and sentence is contained in Form 23.
¶ 49 The majority acknowledges that the specific admonition in Form 23 directly contradicts its reading of
¶ 50 In 2003, the Limited Jurisdiction Committee recommended deletion of the forms accompanying the rules of criminal procedure. See Amended Petition to Amend Forms Appended to the Rules of Criminal Procedure (“Amended Petition“), No. R-03-0029 (filed Nov. 1, 2006); Arizona Supreme Court Rules Agenda (June 1, 2004). The Arizona Supreme Court deferred action on the petition and created the Criminal Rules Review Committee to review all of the forms to determine if they should be updated. Amended Petition at 2; Arizona Supreme Court Minutes (June 1, 2004). The Committee was comprised of trial judges and criminal law specialists. Amended Petition, Attachment I. After an extensive review and revision of the forms, the Committee recommended retention of the forms for statewide use. See
¶ 51 In summary on this point, I do not believe it necessary to look beyond
The history of the pertinent rules shows the intent of the Arizona Supreme Court to mark the time to appeal from sentencing.
¶ 52 The majority is correct that Arizona law before 1973 required oral pronouncement and written entry in the court minutes before the case could be appealed. See, e.g., State v. Johnson, 108 Ariz. 116, 118, 493 P.2d 498, 500 (1972);
¶ 53 More important, rather than suggesting an ambiguity as the majority argues, the historical context of the rules shows the intent of our supreme court. In 1973, the court abrogated all 367 rules of criminal procedure, replacing them with the current rules. Promulgating Order, 17 A.R.S. Rules of Criminal Procedure at XXX (1973). The 1973 rules were proposed by an Advisory Committee consisting of criminal law practitioners and academics from across the state. Proposed Rules, Committee Roster; John M. Greacen, The Proposed New Rules of Criminal Procedure—A Preview of The State Bar Committee‘s Convention Presentation, 7 Ariz. B.J., 11, 11 (Spring 1972). The Advisory Committee was assisted by three full-time attorneys working under a federal grant. Greacen, supra, at 11. The mission of the Advisory Committee was to start “from scratch” to reorganize and to make “substan-
¶ 54 Before 1973, a defendant generally was not required to be present at sentencing. See
You have a right to appeal from a final judgment of conviction, from an order denying a post-trial motion, or from a sentence which is illegal or excessive.
In order to exercise this right:
1. You must file a NOTICE OF APPEAL (Form XXIV(a)) within 20 DAYS of the entry of judgment and sentence. If you do not file a notice of appeal within 20 days you will lose your right to appeal. The entry of judgment and sentence occurs at the time of sentencing. If you do not appeal you may not ever have another opportunity to have any errors made in this case corrected by another court.
¶ 55
¶ 56 Equally telling, our supreme court rejected the Advisory Committee recommendation to adopt the federal rule regarding entry of judgment and sentence. The Advisory Committee suggested that the “notation of the exact terms of the judgment and sentence by the clerk in the docket shall constitute the entry of judgment and sentence.” Proposed Rules, at 132. The proposed comment had explained: “This section is derived from
¶ 57 In response to the observation that its holding adopts many aspects, but not all,9 of the federal rule, the majority argues our supreme court may have been concerned about sentence finality rather than appellate timing. For instance, the majority cites State v. Falkner, 112 Ariz. 372, 373, 542 P.2d 404, 405 (1975), for the proposition that the 1973 changes were a complement to a general preference for finality.10 Falkner is inapposite because it neither relies on nor references
Does interpreting “entry of judgment and sentence” to mean the same as “filing of the minute entry” cause conflicts or confusion with respect to other rules of criminal procedure?
¶ 58 The majority interprets the phrase “entry of judgment and sentence” in
¶ 59 The majority‘s interpretation also causes potential confusion for trial judges and defendants regarding the admonishment that must be given under
¶ 60 Finally, the majority‘s interpretation plainly conflicts with the statement in Form 23 that the “entry of judgment and sentence occurs at the time of sentencing.” Should trial courts amend their Form 23 to conform to the holding in this case? As discussed earlier, supra ¶ 56, I do not believe a lower court has authority to invalidate a criminal procedure form that our supreme court has found “sufficient to meet the requirements of these rules.” See
Would defendants be unfairly prejudiced if “entry of judgment and sentence” means the date of sentencing?
¶ 61 My colleagues’ conclusions in this regard emanate, in part, from understandable concern that confusion about when the time for filing a notice of appeal begins to run could unfairly penalize defendants despite the diligent efforts of their attorneys. Fortunately, this is an area in which defendants have strong protection.
¶ 62 Finally, while I do not doubt for a moment my colleagues’ intent to remedy what they conclude are “confusing and seemingly contradictory rules and forms,” supra ¶ 20, today‘s holding will cause more problems for defense attorneys and their clients. A twenty-day deadline that runs from the time of sentencing is clear, while also protecting defendants’ rights. With the mandatory presence of defendant and his attorney at sentencing, the court informs everyone (including victims and observers) by oral pronouncement and in writing that defendant has twenty days from that date to file a notice of appeal.
¶ 63 Under the majority‘s holding, however, simplicity is lost. For any case in which the defendant does not make an immediate decision to appeal, defense counsel is burdened with unnecessary post-sentencing tasks. He or she must closely monitor the filings to determine the exact date the sentencing minute entry is filed. Counsel is then required to give written notification of the deadline to a client who is typically in transit between penal institutions. The client in turn must communicate to defense counsel whether he or she wishes to appeal. In a high-volume criminal defense practice, this type of complexity does not benefit attorneys or their clients. It also conflicts with a primary purpose of the rules “to secure simplicity in procedure.” See
Conclusion
¶ 64 Since 1973, defendants have been told by trial judges, and in a written form, that they have twenty days from sentencing to file a notice of appeal; otherwise, they will lose the right to appeal. I believe this is the proper procedure based on a simple reading of an unambiguous rule. I would dismiss the appeal for lack of jurisdiction, which would allow Whitman to confer with counsel regarding post-conviction relief.