State v. Raffaele

249 Ariz. 474

471 P.3d 685

STATE of Arizona, Appellee,

v.Shane Alan RAFFAELE, Appellant.

No. 1 CA-CR 19-0226

Court of Appeals of Arizona, Division 1.

FILED August 6, 2020

Arizona Attorney General's Office, Phoenix, By Joshua C. Smith, Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix, By Scott L. Boncoskey, Counsel for Appellant

Judge Joshua D. Rogers¹ delivered the opinion of the Court, in which Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.

ROGERS, Judge:

¶1 Shane Alan Raffaele appeals from his conviction and sentence for transportation of marijuana for sale in an amount over two pounds. Raffaele asserts that the superior court erred by (1) denying his motion to suppress, (2) denying his request for a continuance so that he could retain counsel, and (3) imposing a two-dollar "penalty assessment." We ordered supplemental briefing to address whether we have jurisdiction over this appeal, given that Raffaele absconded. See A.R.S. § 13-4033(C). As set forth below, we find that we have jurisdiction over this appeal because A.R.S. § 13-4033(C) requires the State to affirmatively show in the superior court that a defendant has knowingly, voluntarily, and intelligently waived his or her right to an appeal. Because the superior court made no findings of a knowing, voluntary, and intelligent waiver, we have jurisdiction to hear the appeal. On the merits, we affirm Raffaele's conviction and sentence but vacate the two-dollar penalty assessment.

FACTS AND PROCEDURAL BACKGROUND

¶2 In August 2013, a Department of Public Safety officer saw what appeared to be a rental car with California plates. Because the driver's posture "appeared to be rigid" and he did not acknowledge the officer's presence, the officer followed the car. When the officer saw the driver commit a lane change violation, he pulled the car over. The officer approached the open passenger's side window and asked the driver to get out of the car with his license. The driver, Raffaele, complied. Away from the road, the officer introduced himself, explained the reason for the traffic stop, and stated that he would only be issuing a warning.

¶3 The officer noticed that although Raffaele was polite and did not have any issues communicating, he had some facial tremors and appeared nervous. Raffaele explained that he was coming back from a day trip to California after dropping off a former coworker.

¶4 After confirming that he was driving a rental car, Raffaele gave the officer permission to retrieve rental documents from the center console of the car. The officer then went into the car and smelled marijuana. The officer, however, later testified that he could not tell if he smelled burnt or unburnt marijuana. The officer then went to his patrol car, requested backup, and printed a written warning.

¶5 The officer gave Raffaele the warning and continued to ask him about his trip to California. During their discussion, Raffaele explained that his car was being repaired and that the car he was driving was rented in his mother's name because he did not have a credit card. The officer asked Raffaele when he last used marijuana, both generally and in the car. Raffaele responded that he last smoked two days earlier in the car and presented his medical marijuana card. The officer explained that although Raffaele had a medical marijuana card, the rental car would still need to be searched to ensure that any marijuana in the car was within the regulated amount.

¶6 The officer and Raffaele continued to talk while they waited for a second officer to arrive. A short time later, Raffaele admitted that he was transporting about seven pounds of marijuana from a California dispensary. Given this admission, the officer arrested Raffaele, searched the car, and found ten pounds of marijuana in the trunk.

¶7 Raffaele was charged with one count of illegally conducting a criminal enterprise and one count of transportation of marijuana for sale. During a pretrial proceeding, the court informed Raffaele that if he missed any of his court dates "a warrant [could] be issued for [his] arrest. ... The case [could] also go to trial without [him] being present. [He could] end up having been convicted and lose [his] right to appeal." Raffaele's written release order stated that if he was convicted, he would be required to appear for sentencing; if he failed to appear, he could lose his right to a direct appeal.

¶8 Before trial, Raffaele failed to appear, and the court issued a bench warrant. In October 2017, Raffaele was tried in absentia, and the jury found him guilty of transporting two pounds or more of marijuana for sale.² He was arrested pursuant to a bench warrant in February 2019 and sentenced to 12.75 years in prison in April 2019. Raffaele timely appealed.

DISCUSSION

I. THIS COURT HAS APPELLATE JURISDICTION PURSUANT TO A.R.S. § 13-4033(A)(1).

¶9 This court has an independent duty to determine whether we have jurisdiction over matters on appeal. State v. Perry , 245 Ariz. 310, 311, ¶ 3, 428 P.3d 509, 510 (App. 2018). "Our jurisdiction is prescribed by statute and we have no authority to entertain an appeal over which we do not have jurisdiction." State v. Limon , 229 Ariz. 22, 23, ¶ 3, 270 P.3d 849, 850 (App. 2011). Appellate jurisdiction cannot be created by agreement of the parties, nor can the parties waive its absence. Natale v. Natale , 234 Ariz. 507, 509, ¶ 8, 323 P.3d 1158, 1160 (App. 2014).

¶10 Arizona's Constitution provides that a criminal defendant has "the right to appeal in all cases." Ariz. Const. art. 2, § 24. This right is codified in A.R.S. § 13-4033(A), which specifies the kinds of orders a defendant may appeal. State v. Bolding , 227 Ariz. 82, 87, ¶ 13, 253 P.3d 279, 284 (App. 2011). As applicable here, a defendant may appeal from a "final judgment of conviction." A.R.S. § 13-4033(A)(1). Raffaele's notice of appeal from the final judgment of conviction clearly purports to invoke this right.

¶11 The right to appeal, however, is not without limits. A defendant forfeits the right to appeal from a final judgment of conviction "if the defendant's absence prevents sentencing from occurring within ninety days after conviction and the defendant fails to prove by clear and convincing evidence at the time of sentencing that the absence was involuntary." A.R.S. § 13-4033(C) ; see generally Ariz. R. Crim. P. 26.9 ; State v. Fettis , 136 Ariz. 58, 59, 664 P.2d 208, 209 (1983) ("[D]efendant must be present at his sentencing except in extraordinary circumstances ...."). This statute essentially authorizes "an implied waiver of a non-pleading defendant's right to a direct appeal." Bolding , 227 Ariz. at 87–88, ¶ 16, 253 P.3d at 284–85 (noting further that "[a] number of other jurisdictions similarly bar a criminal defendant's appeal when the defendant has absconded") (citing cases).

¶12 In order for this implied waiver of a defendant's constitutional right to appeal under § 13-4033(C) to become effective, however, there must first be a finding that the waiver was knowing, voluntary, and intelligent. See id. at 88, ¶ 20, 253 P.3d at 285. The burden of proving waiver of a constitutional right typically falls on the State. See, e.g. , State v. Greenawalt , 128 Ariz. 150, 158, 624 P.2d 828, 831 (1981) (waiver of right to counsel); State v. Duffy , 247 Ariz. 537, 547, ¶ 24, 453 P.3d 816, 826 (App. 2019) (waiver of the right to conflict-free counsel); State v. Jones , 119 Ariz. 555, 557, 582 P.2d 645, 647 (App. 1978) (waiver of right to remain silent); see also Brewer v. Williams , 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (observing that "the proper standard to be applied in determining the question of waiver as a matter of federal constitutional law—that it was incumbent upon the State to prove ‘an intentional relinquishment or abandonment of a known right or privilege’ " (citation omitted)); Barker v. Wingo , 407 U.S. 514, 529, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (stating that, for claimed waiver of fundamental rights, the Supreme Court has "placed the entire responsibility on the prosecution to show that the claimed waiver was knowingly and voluntarily made").

¶13 Raffaele's absence from trial delayed his sentencing by almost two years. Because the potential waiver authorized by section 13-4033(C) implicates a constitutional right, the State had the burden to show his waiver was knowing, voluntary, and intelligent. Further, we see no reason to depart from the procedural requirements that apply to a defendant's waiver of his right to trial by pleading guilty or no contest, i.e., that the superior court must find a knowing, voluntary, and intelligent waiver. See Ariz. R. Crim. P. 17.1(b) ("A court may accept a plea of guilty or no contest only if the defendant enters the plea voluntarily and intelligently. Courts must use the procedures in Rules 17.2, 17.3, and 17.4 to assure compliance with this rule."); see also Ariz. R. Crim. P. 17.3(a) (setting forth procedural requirements for acceptance of a plea of guilty).

¶14 As applied, the State failed to raise this issue in the superior court. As a result, the superior court made no such finding of a knowing, intelligent, and voluntary waiver applicable to this court's appellate jurisdiction. Accordingly, the record does not support the conclusion that Raffaele waived appellate jurisdiction.

¶15 To involve § 13-4033(C) requires a finding by the superior court that a defendant knowingly, intelligently, and voluntarily waived his or her right to an appeal by delaying sentencing by more than 90 days. The most logical time for the State to request such a finding to allow it to meet its burden for purposes of § 13-4033(C) would be at sentencing. During sentencing, the State would be required to present evidence that the defendant knowingly, voluntarily, and intelligently waived his right to appeal by delaying sentencing by more than 90 days. Once the State met its burden, the defendant could present...