                                                                   FILED BY CLERK
                           IN THE COURT OF APPEALS                     JUN 30 2006
                               STATE OF ARIZONA                        COURT OF APPEALS
                                 DIVISION TWO                            DIVISION TWO


THE STATE OF ARIZONA,                      )
                                           )
                              Appellee,    )        2 CA-CR 2005-0248
                                           )        DEPARTMENT A
                   v.                      )
                                           )        OPINION
PABLO RODRIGUEZ CELAYA,                    )
                                           )
                             Appellant.    )
                                           )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                              Cause No. CR20021971

                        Honorable Michael Cruikshank, Judge

                               APPEAL DISMISSED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Aaron J. Moskowitz                                   Phoenix
                                                              Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender
  By Alex Heveri                                                              Tucson
                                                              Attorneys for Appellant


V Á S Q U E Z, Judge.
¶1            Pablo Celaya pled guilty to one count of aggravated assault with a deadly

weapon or dangerous instrument, a class three felony and domestic violence offense, and

was sentenced to a partially aggravated prison term of ten years. In a petition for post-

conviction relief that followed, Celaya argued he was entitled to be resentenced because the

trial court had failed to state on the record its reasons for departing from the presumptive

prison term. See A.R.S. § 13-702(B); State v. Harrison, 195 Ariz. 1, ¶¶ 9-10, 985 P.2d

486, 488-89 (1999). The state agreed Celaya was entitled to be resentenced and requested

a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

¶2            The trial court ordered a jury trial to determine the existence of aggravating

factors. After the jury found physical and emotional harm to the victim as aggravating

factors, the court sentenced Celaya to a partially aggravated, nine-year prison term. See

A.R.S. § 13-702(C)(9). On appeal from his resentencing, Celaya argues, as he did below,

that “empaneling a . . . jury to determine aggravating factors rather than imposing the

presumptive term violated” his protection against double jeopardy. Finding that we lack

jurisdiction, however, we dismiss Celaya’s appeal.

¶3            “The court of appeals, as a court of limited jurisdiction, has only the

jurisdiction conferred on it by statute.” McDougall v. Superior Court, 170 Ariz. 474, 475,

826 P.2d 337, 338 (App. 1991). Under A.R.S. § 13-4033(B), a defendant in a noncapital

case “may not appeal from a judgment or sentence that is entered pursuant to a plea

agreement.” “By pleading guilty or no contest in a noncapital case, a defendant waives the


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right to have the appellate courts review the proceedings by way of direct appeal, and may

seek review only by filing a petition for post-conviction relief pursuant to Rule 32 and, if

denied, by a petition for review.” Ariz. R. Crim. P. 17.1(e), 16A A.R.S. Moreover, the

state’s failure to move to dismiss this appeal or otherwise challenge Celaya’s claims based

on lack of jurisdiction cannot confer jurisdiction on us. See Kadera v. Superior Court, 187

Ariz. 557, 562, 931 P.2d 1067, 1072 (App. 1996) (“Arizona law has established that parties

may not confer subject matter jurisdiction on a court that it does not otherwise have.”).

¶4             Celaya asserts in his opening brief that we have “jurisdiction under A.R.S.

§§ 12-120.21, 13-4031, and 13-4011.” The state agrees this court has jurisdiction, citing

article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-

4033(A). But neither the constitutional provision nor these statutes confer direct appellate

jurisdiction of this case.

¶5             Article VI, § 9 merely states that this court has jurisdiction “as provided by

law.” And the general provisions for this court’s jurisdiction found in §§ 12-120.211 and

13-40312 are modified by the express exception in § 13-4033(B) quoted above. See Merrick


       1
        Section 12-120.21(A)(1) states: “The court of appeals shall have . . . [a]ppellate
jurisdiction in all actions and proceedings originating in or permitted by law to be appealed
from the superior court, except criminal actions involving crimes for which a sentence of
death has actually been imposed.”

       Section 13-4031 states: “[A]ny party to a prosecution by indictment, information
       2

or complaint, may appeal as prescribed by law and in the manner provided by the rules
of criminal procedure, except criminal actions involving crimes for which a sentence of
death has actually been imposed may only be appealed to the supreme court.” (Emphasis

                                              3
v. Lewis, 192 Ariz. 272, ¶ 13, 964 P.2d 473, 475-76 (1998) (specific statutes control over

general statutes); State v. Rodriguez-Gonzales, 208 Ariz. 198, ¶ 5, 92 P.3d 424, 426 (App.

2004) (“[T]he provisions of § 13-4033(A)(2) and (3) are limited by subsection B to certain

defendants.”). Section 13-4033(B) was added in 1992, see 1992 Ariz. Sess. Laws, ch. 184,

§ 1, long after the general grants of jurisdiction in the other statutes. See 1964 Ariz. Sess.

Laws, ch. 102, §§ 1 and 3; In re Manny, 211 Ariz. 301, ¶ 7, 120 P.3d 1111, 1113 (App.

2005) (newer, specific statute prevails over older, general statute). Finally, § 13-4011, on

which Celaya also relies, assigns responsibility for the costs of a criminal action removed to

a different county before trial and does not grant this court jurisdiction in this case.

¶6            That Celaya received a jury trial on aggravating factors after his first petition

for post-conviction relief does not alter the fact that he expressly waived a jury trial and pled

guilty to the underlying offense. In so doing, Celaya waived his right to a direct appeal of

his conviction and sentence. The rule announced in Blakely is not substantive, but

procedural. See State v. Febles, 210 Ariz. 589, ¶ 14, 115 P.3d 629, 634 (App. 2005). In

Blakely, the supreme court “reallocated certain factfinding authority from the judge to the

jury.” Febles, 210 Ariz. 589, ¶ 16, 115 P.3d at 634. It did not, however, address the

method by which a defendant may obtain review of his or her sentence or conviction

following a plea agreement. And nothing in Blakely or its progeny alters or invalidates the

provisions of § 13-4033(B).


added.)

                                               4
¶7           Celaya’s sentence was entered pursuant to his plea agreement; therefore, we

lack jurisdiction and dismiss his appeal. Cf. Rodriguez-Gonzales, 208 Ariz. 198, ¶ 7, 92

P.3d at 426 (dismissing for lack of jurisdiction non-Blakely-based direct appeals of

defendants’ resentencings ordered in proceeding for post-conviction relief); Nikont v.

Hantman, 211 Ariz. 367, ¶ 6, 121 P.3d 873, 875 (App. 2003) (Rule 10.4(b), Ariz. R. Crim.

P., 16A A.R.S., which renews right to change of judge on remand for “new trial,” does not

renew right to change of judge on remand for resentencing based on Blakely).




                                            ____________________________________
                                            GARYE L. VÁSQUEZ, Judge

CONCURRING:



____________________________________
JOHN PELANDER, Chief Judge



____________________________________
JOSEPH W. HOWARD, Presiding Judge




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