State v. Anderson

CORCORAN, Justice,

specially concurring:

I concur with the court’s resolution of the jurisdictional issue in this case. I would not, however, remand this case for resentencing.

This case does not present the issue of a trial court’s imposition of an unknown, additional penalty upon a defendant after his oral sentencing. Here, the defendant, in his written plea agreement, agreed to pay the $100 felony assessment. In addition, the trial court orally notified the defendant at his change of plea hearing that he was required to pay the $100 assessment under the terms of the plea agreement. Furthermore, the court told the defendant that it was “required by law [A.R.S. § 13-812] to impose [the] mandatory assessment of $100.” (Emphasis added.) The defendant affirmatively stated that he understood the $100 felony assessment requirement. Unfortunately, at defendant’s sentencing hearing, the overworked trial judge forgot to orally mention the $100 felony assessment. Neither defendant, his lawyer, nor the prosecutor brought this omission to the attention of the trial judge. However, the $100 assessment was imposed in the written Sentence of Imprisonment signed by the judge.

We are now two published opinions and 24 months removed from this non-event— the trial court’s failure to orally tell the defendant to pay the $100 assessment. After this lengthy period, this court remands this case for resentencing under the authority of State v. Powers, 154 Ariz. 291 , 742 P.2d 792 (1987), which held that “the proper method of correcting an illegal sentence is not by minute entry. Correction of the sentence should have been in open court with the defendant present.” 154 Ariz. at 295 , 742 P.2d at 796 , citing rule 26.9, Arizona Rules of Criminal Procedure. Presumably, this oral sentencing requirement is based on the fact that the $100 felony assessment is a “sentence,” State v. Sheaves, 155 Ariz. 538, 542 , 747 P.2d 1237, 1241 (App.1987), and a defendant must be present at sentencing. Rule 26.9; State v. Davis, 105 Ariz. 498, 502 , 467 P.2d 743, 747 (1970) (defendant must be present when sentence is pronounced or sentence is invalid). However, I would not require oral resentencing regarding the $100 felony assessment because such resentencing is *37 wasteful and violates the spirit of the rules of criminal procedure.

Rule 1.2, Arizona Rules of Criminal Procedure, states that the rules of criminal procedure “are intended to provide for the just, speedy determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, the elimination of unnecessary delay and expense, and to protect the fundamental rights of the individual while preserving the public welfare.” I do not believe that the court’s decision to remand this case for resentencing furthers the goals listed in rule 1.2.

The resentencing requirement accomplishes the following: defendant must be (1) taken from his cell at the Arizona State Prison; (2) driven to Phoenix in a security vehicle; (3) housed at the Madison Street Jail for two or more days; (4) brought before the sentencing judge at the Maricopa County Courthouse in the presence of defendant’s attorney, a deputy county attorney, and a court reporter; (5) told by the sentencing judge that he must pay the $100 felony assessment that he already agreed to pay in the written plea agreement and that he was ordered to pay in the written Sentence of Imprisonment; and (6) transported back to his cell at the Arizona State Prison. These actions will simply burden the state with the unnecessary expense of transporting the defendant, burden an already overworked trial judge and two busy lawyers with an additional hearing, and place the public at risk from the enhanced possibility of defendant’s escape while he is being transported around the state. Certainly this resentencing procedure does not simplify procedure, eliminate unnecessary delay and expense, or preserve the public welfare.

Moreover, I do not believe that this procedure protects “the fundamental rights of the [defendant].” See rule 1.2. Here, the defendant agreed to pay the $100 felony assessment, and the trial court was required by law to mandate the defendant’s payment of the assessment. Because the assessment was mandatory and defendant agreed to pay the assessment, the trial court’s imposition of the assessment through the Sentence of Imprisonment was not a violation of defendant’s “fundamental” or “substantial” rights. Certainly, if a criminal defendant in a felony proceeding may be arraigned by mail, see rule 14.2 (as amended February 18, 1992), defendant’s “fundamental” or “substantial” rights are not involved here. Because a mere irregularity which does not affect substantial rights of a defendant is not grounds for setting a sentence aside, Davis, 105 Ariz. at 502 , 467 P.2d at 747 , I would allow the Sentence of Imprisonment to stand as defendant’s sentence. If defendant must be orally resentenced as to the $100 felony assessment, I would have it done by telephone conference.

I agree with the New York Court of Appeals’ conclusion that the trial court has the “inherent .power to correct [an] error made at sentencing ... ‘which is, plainly, the result of some inadvertence on [the judge’s] part, and which our reason tells us is a mere mistake.’ ” People v. Wright, 56 N.Y.2d 613, 614 , 435 N.E.2d 1088, 1089 , 450 N.Y.S.2d 473, 474 (1982) (citation omitted). In this case, the trial court “corrected” its failure to orally order defendant to pay the $100 assessment by including the $100 assessment in its Sentence of Imprisonment.

Because the court holds that the trial court must orally resentence defendant, I would have this court amend rule 26.9 to provide that a sentencing judge need not orally impose in open court penalties set forth in the plea agreement which are truly minutia, such as mandatory costs and assessments. Furthermore, I would have this court amend the rules of criminal procedure to provide that a defendant pleading guilty waives his right to appeal and may only seek review of his sentence by filing a rule 32 petition for post-conviction relief with the trial court. Such a rule would have, in this case, allowed the trial court to correct defendant’s sentence, orally if necessary, nearly two years ago. A guilty plea is supposed to “mark[] the end of a criminal case, not a gateway to further litigation.” People v. Taylor, 65 N.Y.2d 1 , *38 5, 478 N.E.2d 755 , 757, 489 N.Y.S.2d 152 , 154 (1985).