On March 5, 2013, the Arizona Supreme Court clarified a statute that had been a gray area for over 20 years when it interpreted Arizona Revised Statute (“A.R.S.”) § 13-4033(B) as applied to post-judgment restitution.1 The Court held that A.R.S. § 13-4033(B) precludes defendants from challenging a post-judgment restitution order made pursuant to a plea agreement, when the agreement specifies a capped amount.2 The importance of this decision stems from the right of criminal defendants to “appeal in all cases” guaranteed by the Arizona Constitution.3 The Court’s decision carefully protects this right by allowing the defendants to petition for post-conviction relief under Rule 32 of the Arizona Rules of Criminal Procedure.4
The case began with a plea bargain entered into by the defendant, Frank Hoffman, following an injurious accident where he pleaded guilty to driving under the influence, received probation, and agreed to pay “fines, fees and restitution . . . not to exceed $53, 653.45.”5 A few months later, the Tucson City Court held a contested restitution hearing that resulted in an order for Hoffman to pay $40, 933.45.6 Hoffman appealed the restitution order to superior court, which dismissed the appeal, relying on A.R.S. § 13-4033(B) and Rule 17.1 of the Arizona Rules of Criminal Procedure.7 The superior court held that Hoffman had waived his right to appeal as part of the plea agreement.8 After the court of appeals declined jurisdiction, the Arizona Supreme Court granted review to clarify the meaning of A.R.S. § 13-4033(B).9
The confusion arose from the Legislature’s 1992 amendment of A.R.S. § 13-4033 in response to an overwhelming number of appeals from judgments entered pursuant to plea agreements.10 Part (B) of the statute now reads, “In noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or an admission to a probation violation.”11 Shortly after the 1992 amendment, the Arizona Supreme Court amended Rule 17.1(e) to mirror the legislature’s intent that direct appeals no longer be available after a plea bargain by allowing for only Rule 32 petitions for post-conviction relief in such cases.12
The Court narrowed the issue in Hoffman to whether post-conviction restitution orders fall within the meaning of “sentence” for the purposes for A.R.S. § 13-4033(B).13 The term is not defined in the Arizona Revised Statues, and restitution orders are not expressly covered by the amended language.14 The Court employed traditional tools of statutory interpretation to conclude that restitution orders are covered where the plea agreement sets a capped amount.15 In part, the Court explained that the opposite result would produce an absurd effect of dual appeal processes, one for the sentence and another for the restitution award.16 The outcome is consistent with a line of cases holding that “a petition for post-conviction relief is ‘the only constitutionally guaranteed appeal’ after a defendant enters into a plea agreement.”17 Additionally, the Court reasoned that, although the State may appeal restitution orders directly, the defendant’s option to petition for Rule 32 post-conviction relief obviates the need for the defendant to appeal directly.18
Finally, the Court addressed the contention that Rule 32 may not be broad enough to afford relief for restitution orders by explaining that the Arizona Constitution, in article 2, section 24 provides a constitutional right to appellate review.19 Therefore, because direct appeal is not available, the Court “trust[s] that the courts will broadly interpret Rule 32 to preserve the rights of pleading defendants.”20
Hoffman raised two seemingly contrary cases where the Arizona Court of Appeals granted review of post-judgment restitution orders, State v. Foy21 and State v. Unkefer,22 as evidence that direct appeal has been available since the 1992 amendment.23 The Court dispensed with both cases on the grounds that A.R.S. § 13-4033(B) was not mentioned in either opinion.24 The Court went a step further to say that “[t]o the extent that Foy and Unkefer conflict with our interpretation of A.R.S. § 13-4033 in circumstances like the one before us, we disapprove of those cases.”25
1 Hoffman v. Chandler ex rel. County of Pima, 295 P.3d 939 (Ariz. 2013).
2 Id. at ¶ 1.
3 Id. at ¶ 5 (quoting Ariz. Const. art. 2, § 24).
4 Id. at ¶ 1.
5 Id. at ¶ 2.
6 Id. at ¶ 3.
9 Id. at ¶ 4 (citing Ariz. Const. art. 6, § 5(3) & Ariz. Rev. Stat. § 12-120.24 as the bases for jurisdiction).
10 Id. at ¶ 5.
11 Id. (citing 1992 Ariz. Sess. Laws 779).
12 Id. at ¶¶ 5-6.
13 Id. at ¶ 7.
14 Id. at ¶ 9.
15 Id. at ¶¶ 7-11.
16 Id. at ¶ 10.
17 Id. at ¶ 6 (quoting State v. Smith, 184 Ariz. 456, 458, 910 P.2d 1, 3 (1996)) (additional citations omitted).
18 Id. at ¶ 15.
19 Id. at ¶ 18.
21 176 Ariz. 166, 167, 859 P.2d 789, 790 (App. 1993).
22 225 Ariz. 430, 432 ¶¶ 3-5, 239 P.3d 749, 751 (App. 2010).
23 Id. at ¶¶ 13-14.
25 Id. at ¶ 14.