State v. Renner

868 P.2d 978, 177 Ariz. 395, 145 Ariz. Adv. Rep. 50, 1993 Ariz. App. LEXIS 158
CourtCourt of Appeals of Arizona
DecidedAugust 12, 1993
DocketNo. 1 CA-CR 92-0907
StatusPublished
Cited by2 cases

This text of 868 P.2d 978 (State v. Renner) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Renner, 868 P.2d 978, 177 Ariz. 395, 145 Ariz. Adv. Rep. 50, 1993 Ariz. App. LEXIS 158 (Ark. Ct. App. 1993).

Opinion

OPINION

FIDEL, Judge.

We hold in this opinion that neither the state constitution nor the rules of criminal procedure impede one judge from accepting a plea agreement rejected by another.

I. Factual and Procedural History

Todd Matthew Renner (defendant) entered an agreement to plead guilty to one count of aggravated assault, a class three felony. The State agreed in exchange to drop an additional charge of aggravated assault, a class two felony and dangerous crime against children. The agreement stipulated that defendant would serve time in prison and pay restitution. It specified that the crime carried a minimum sentence of 3.75 years, a presumptive sentence of five years, and a maximum sentence of ten years.

Judge Paul A. Katz rejected the plea agreement after an aggravation/mitigation hearing, commenting that a sentence to one year in jail and five years’ probation would provide better supervision of defendant and protection for the community. After granting the State’s resultant motion to withdraw from the plea agreement, Judge Katz set aside the guilty plea and transferred the case for reassignment to another judge. See 17A AR.S. Rules of Crim.P., Rule 17.4(e) and (g). Subsequently, Judge Maurice Portley, to whom the case was transferred, accepted the same plea agreement, sentenced defendant to [397]*397the presumptive term of five years in prison, and ordered him to pay restitution of $94,-294.91.

Defendant now appeals, arguing pursuant to article six, section thirteen, of the Arizona Constitution that the sentencing judge lacked jurisdiction to accept an agreement that had been rejected by a coequal judge. Alternatively, defendant argues that the sentencing judge abused his discretion by not reviewing the testimony that defendant presented in mitigation to the first judge.

II. Timeliness

The State challenges the timeliness of defendant’s appeal, arguing that this court lacks jurisdiction because defendant failed to meet the twenty-day requirement of Arizona Rule of Criminal Procedure 31.3. This contention is frivolous. The trial court sentenced defendant on May 18, 1992, and defendant filed his appeal on Monday, June 8, 1992. Although June 8th was the twenty-first day from sentence, the twentieth day was a Sunday. Arizona Rule of Criminal Procedure 1.3 provides in pertinent part:

In computing any period of time of more than 24 hours prescribed by these rules, ... [t]he last day of the period so computed shall be included, unless it is a Saturday, Sunday or legal holiday, in which case the period shall run until the end of the next day which is neither a Saturday, Sunday nor a legal holiday.

(emphasis added). Defendant’s filing met the requirements of Rule 1.3.

The State correctly points out that defendant did not separately appeal the denial of modification of sentence. See State v. Wynn, 114 Ariz. 561, 563, 562 P.2d 734, 736 (App.1977). Yet defendant’s failure to appeal the denial of modification does not deprive this court of jurisdiction to consider his appeal of the original sentence, which raises the same issues. We therefore proceed to the merits.

III. Jurisdiction __

Defendant argues that pursuant to article six, section thirteen, of the Arizona Constitution, the sentencing judge lacked jurisdiction to accept the agreement that a coequal judge had already rejected. The constitution says no such thing. Article six, section thirteen, ' provides:

The judgments, decrees, orders and proceedings of any session of the superior court held by one or more judges shall have the same force and effect as if all judges of the court had presided.

The purpose of this limited constitutional provision was explained as follows on the floor of the Arizona Constitutional Convention of 1910:

Mr. Franklin: I was a member of the judiciary committee, but there is a provision in section 5 which is new to me, and I do not quite understand it. “The judgments, decrees, orders, etc., shall be equally effectual as if all the judges had presided at said session.” I do not understand what is the purpose of that.
Mr. Lynch: I might suggest the reason for it is that in the California system there are often two judges in one county who divide the work into two departments. The purpose of this is to legalize the work of one judge, making the work of one department legal without the concurrence of the other judge in the same county.

The Records of the Arizona Constitutional Convention of 1910 at 335 (John S. Goff, ed., 1991).1

This court has encouraged trial judges in other contexts to avoid reconsideration of another judge’s ruling unless reconsideration is warranted by a change of circumstances. See, e.g., Hibbs v. Calcot, Ltd., 166 Ariz. 210, 214, 801 P.2d 445, 449 (App. 1990) (reconsideration inappropriate where the additional evidence was not “newly discovered or previously unavailable evidence, [398]*398and did not justify reexamination by a second judge”). We have never suggested, however, that a trial judge lacks jurisdiction to do so or that it would be unconstitutional to do so.

Moreover, Rule 17.4 of the Arizona Rules of Criminal Procedure expressly provides for a change of judge when a plea is rejected by the judge initially assigned.2 And the rule contains no limitation on the second judge’s discretion to entertain and independently review any plea that the parties may choose to enter. The trial judge’s discretion to accept or reject a plea is substantial. See State v. Superior Court, 173 Ariz. 34, 839 P.2d 454 (App.1992) (a judge must independently evaluate each plea bargain that is entered in his or her court “to see if the ends of justice and the protection of the public are being served”); State v. De Nistor, 143 Ariz. 407, 411, 694 P.2d 237, 241 (1985) (acceptance or rejection of a plea bargain is a discretionary ruling); State v. Whitehead, 122 Ariz. 535, 538, 596 P.2d 370, 373 (1979) (prior judge’s willingness to accept defendant’s proposal, which was not part of bargain, did not bind sentencing judge). Had the drafters of Rule 17.4 intended to limit such substantial discretion in the transferee judge, surely they would have so specified. Rather, we find it the evident purpose of the rule to permit the parties and new judge to write on a clean slate.

IV. Sentencing

Defendant alternatively claims that Judge Portley erred in sentencing defendant without first ordering and reading the transcript of the aggravation/mitigation hearing conducted before Judge Katz. Defendant, however, consented to proceed to the second sentencing without asking Judge Portley to order or review the transcript of the prior hearing.

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Cite This Page — Counsel Stack

Bluebook (online)
868 P.2d 978, 177 Ariz. 395, 145 Ariz. Adv. Rep. 50, 1993 Ariz. App. LEXIS 158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-renner-arizctapp-1993.