                    SUPREME COURT OF ARIZONA
                            En Banc


FRANK HOFFMAN,                    )    Arizona Supreme Court
                                  )    No. CV-12-0149-PR
                      Petitioner, )
                                  )    Court of Appeals
                 v.               )    Division Two
                                  )    No. 2 CA-SA 12-0010
THE HONORABLE TERRY L. CHANDLER, )
JUDGE OF THE SUPERIOR COURT OF    )    Pima County
THE STATE OF ARIZONA, in and for )     Superior Court
the County of Pima,               )    No. CR20113674
                                  )
                Respondent Judge, )
                                  )
THE STATE OF ARIZONA; TUCSON CITY )    O P I N I O N
PROSECUTOR'S OFFICE,              )
                                  )
        Real Parties in Interest. )
__________________________________)


          Appeal from the Superior Court in Pima County
             The Honorable Terry L. Chandler, Judge


                            AFFIRMED

________________________________________________________________


           Order of the Court of Appeals Division Two
                       Filed April 3, 2012

________________________________________________________________


MARY C. TREJO, TUCSON PUBLIC DEFENDER                          Tucson
     By   Kristina Julie Bohn, Deputy Public Defender
Attorney for Frank Hoffman
MICHAEL G. RANKIN, TUCSON CITY ATTORNEY                    Tucson
     By   Baird S. Greene, Deputy City Attorney
          William F. Mills, Principal Assistant
          Prosecuting City Attorney
Attorneys for State of Arizona and Tucson City Prosecutors
Office
________________________________________________________________

T I M M E R, Justice

¶1          Subsection     (A)(3)    of       A.R.S.   §   13-4033      authorizes    a

defendant    to    appeal     a     post-judgment          order     that      affects

substantial rights, while subsection (B) prohibits a defendant

in   noncapital    cases    from    directly      appealing       any    judgment    or

sentence entered pursuant to a plea agreement.                       We today hold

that subsection (B) bars a defendant from directly appealing a

contested post-judgment restitution order entered pursuant to a

plea agreement that contemplated payment of restitution up to a

capped amount.      Any appellate review must be obtained through

post-conviction relief proceedings.

                                          I.

¶2          The State charged Frank Hoffman with several offenses

stemming from his involvement in a traffic accident that injured

another person.      Pursuant to a plea agreement, Hoffman pleaded

no contest to driving under the influence (“DUI”) and, among

other things, agreed to pay restitution up to $53,653.45.                           The

Tucson City Court adjudicated Hoffman guilty, imposed a term of

probation, and ordered him to pay fines, fees, and restitution

in   an   amount   to    be   determined         later,     but    not    to   exceed

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$53,653.45.

¶3            Approximately      three    months       later,    the    court    held    a

contested     restitution       hearing      and   entered      an   order     requiring

Hoffman to pay $40,933.45 in restitution.                       Hoffman appealed to

the superior court, which subsequently dismissed the appeal on

the State’s motion.             Relying on A.R.S. § 13-4033(B) and Rule

17.1(e) of the Arizona Rules of Criminal Procedure, the court

ruled    that    Hoffman   waived      his     right    to   directly     appeal       the

restitution order by entering into the plea agreement and could

challenge the order only through Rule 32 post-conviction relief

proceedings.        Hoffman      sought    special      action       relief    from    the

court of appeals, which declined jurisdiction.

¶4            We granted review to clarify the scope of § 13-4033(B)

a    purely     legal   issue     of     statewide       importance.            We    have

jurisdiction pursuant to Article 6, Section 5(3) of the Arizona

Constitution and A.R.S. § 12-120.24.

                                          II.

¶5            The   Arizona      Constitution       guarantees         defendants       in

criminal prosecutions “the right to appeal in all cases.”                            Ariz.

Const. art. 2, § 24.             Before 1992, a defendant could directly

appeal    a     judgment   or    sentence       entered      pursuant     to     a    plea

agreement.       A.R.S. § 13-4033 (1989).              But the increasing number

of these appeals was straining our appellate justice system.

Ariz. State S., Fact Sheet for H.B. 2481, 40th Leg., 2d Reg.

                                           3
Sess.        (Mar.     19,     1992).          Consequently,            the        legislature

amended § 13-4033            and,    among    other       changes,      added       subsection

(B), which provides:                “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.”                                    1992

Ariz. Sess. Laws 779.               The legislature, however, did not change

what    is    now    subsection       (A)(3),      which    permits         a    defendant     to

appeal       from    “[a]n     order    made       after    judgment            affecting     the

substantial rights of the party.”                   § 13-4033(A)(3).

¶6             After the legislature added subsection (B), this Court

amended Rule 17.1(e) to provide that a defendant in a noncapital

case who pleads guilty or no contest “waives the 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, a petition

for     review.”        Order       Amending       Rule    17.1,       Arizona       Rules     of

Criminal Procedure (Apr. 7, 1992).                        We have since held that a

petition         for         post-conviction           relief          is         “the       only

constitutionally         guaranteed          appeal”      after    a    defendant        enters

into a plea agreement.               State v. Smith, 184 Ariz. 456, 458, 910

P.2d 1, 3 (1996); see also State v. Regenold, 226 Ariz. 378, 379

¶ 5, 249 P.3d 337, 338 (2011) (“[Rule] 32.1 provides the review

process for defendants who plead guilty.”).

¶7             Hoffman argues § 13-4033(A)(3) authorizes his appeal

                                               4
from the restitution order as a post-judgment order affecting

his substantial rights.            The city court entered a “judgment” by

adjudicating        Hoffman   guilty      of       DUI.        See       Ariz.   R.     Crim.    P.

26.1(a) (defining “judgment” as including a court’s adjudication

of guilt upon a defendant’s plea).                           Read in isolation, § 13-

4033(A)(3) would authorize Hoffman to directly appeal the post-

judgment      restitution     order       as       it       indisputably         affected       his

“substantial rights.”           But we must “strive to construe a statute

and    its    subsections     as    a   consistent             and       harmonious       whole.”

State v. Wagstaff, 164 Ariz. 485, 491, 794 P.2d 118, 124 (1990).

Thus, the issue is whether the restitution order is part of

Hoffman’s “sentence” and thus not appealable under § 13-4033(B)

¶8            We interpret § 13-4033(B) to effect the legislature’s

intent, looking first to the language of the provision.                                  Kent K.

v.    Bobby   M.,    210   Ariz.    279,       283      ¶    14,    110    P.3d     1013,    1017

(2005).        If    the   terms    are        ambiguous,           we     employ       secondary

principles of statutory interpretation.                            Id.     We review issues

of statutory interpretation de novo.                           State v. Arellano, 213

Ariz. 474, 477 ¶ 9, 143 P.3d 1015, 1018 (2006).

¶9            The    language      of   subsection             (B)       does     not     reflect

whether a restitution order contemplated by a plea agreement but

entered after entry of judgment is part of a “sentence,” and the

legislature has not defined the term in A.R.S. §§ 13-105, -4033,

or elsewhere.         Several reasons, however, convince us that such

                                               5
an order is part of a “sentence” for purposes of subsection

§ 13-4033(B).          First,   considering      a   post-judgment     restitution

order as part of a sentence furthers the legislative goal of

eliminating direct appeals involving plea agreements.                         A.R.S.

§ 13-104 (providing statutes “must be construed . . . to . . .

effect the objects of the law”); Yslava v. Hughes Aircraft Co.,

188 Ariz. 380, 385, 936 P.2d 1274, 1279 (1997) (stating courts

should interpret unclear statutes “to conform with general goals

expressed     in   the     legislative        history”).      Before    the    1992

amendment     to   §     13-4033,    defendants       who   entered    into    plea

agreements    commonly      challenged        restitution   orders     on   appeal.

See, e.g., State v. Nosie, 150 Ariz. 498, 499, 724 P.2d 584, 585

(App. 1986); State v. O’Connor, 146 Ariz. 16, 17, 703 P.2d 563,

564 (App. 1985).         Although the legislature was presumably aware

of such appeals when it sought to reduce the burden on appellate

courts, cf. Taylor v. Travelers Indem. Co. of Am., 198 Ariz.

310, 317 ¶ 21, 9 P.3d 1049, 1056 (2000) (assuming legislature’s

knowledge of case law and insurance coverage needs), it did not

expressly exclude restitution orders from the ambit of § 13-

4033(B)

¶10          Second,     excluding    a   post-judgment      restitution       order

entered pursuant to a plea agreement from the reach of § 13-

4033(B) would create a hybrid system of appellate review.                      Under

Hoffman’s view of § 13-4033(B), a defendant who pleads guilty

                                          6
could     seek    appellate         review         of    a    contested      post-judgment

restitution      order    on    direct     appeal         but    would    have     to     pursue

review of remaining issues through Rule 32 proceedings.                                       This

dual-track       review      would     unnecessarily             burden     the        appellate

justice system and could lead to inconsistent results.                                 State v.

Estrada, 201 Ariz. 247, 250-51 ¶ 16, 34 P.3d 356, 359-60 (2001)

(stating court interprets and applies statute “in a way that

will avoid an untenable or irrational result”).                              Cf. State v.

Ovante,    231    Ariz.      180,    184   ¶       10,    291    P.3d    974,     978     (2013)

(construing Rule 17.1(e) so as to avoid bifurcated appeals in

capital cases).

¶11          Third,      the    legislature             mandates   restitution           when    a

crime victim has suffered economic loss.                           A.R.S. § 13-603(C).

Because this mandatory provision applies when a defendant enters

into a plea agreement, and restitution is typically imposed at

the time of sentencing, State v. Holguin, 177 Ariz. 589, 591,

870 P.2d 407, 409 (App. 1993), the term “sentence” in § 13-

4033(B) is most reasonably construed to include a post-judgment

restitution order.

¶12          Hoffman points out that after the 1992 amendment to

§ 13-4033,        appellate          courts         have        continued         to      assume

jurisdiction      over    direct       appeals           of   post-judgment        orders       by

defendants       who   had     entered     plea          agreements.        But        with   two

exceptions, see infra ¶¶ 13-14, none of the cases Hoffman cites

                                               7
concerned       a        challenge       to     an          order   entered       as    a   direct

consequence         of    a    plea    agreement’s            terms.        See   Regenold,    226

Ariz. at 380 ¶ 12, 249 P.3d at 339 (reviewing sentence imposed

as consequence of a contested probation violation); State v.

Ponsart, 224 Ariz. 518, 521-22 ¶¶ 2-12, 233 P.3d 631, 634-35

(App. 2010) (same); State v. Delgarito, 189 Ariz. 58, 59, 938

P.2d     107,       108       (App.    1997)           (involving      a     challenged      order

designating         an     offense       as        a       felony   although      offense     left

undesignated at time of guilty plea and disposition).                                    Moreover,

since 1992, appellate courts have routinely dismissed appeals of

post-judgment orders that challenged plea agreement terms.                                    See,

e.g., Fisher v. Kaufman, 201 Ariz. 500, 501 ¶¶ 5-6, 38 P.3d 38,

39 (App. 2001) (noting that § 13-4033(B) precludes direct appeal

of     post-judgment           order     requiring            defendant      to   continue     sex

offender registration because registration was contemplated in

plea agreement); State v. Jimenez, 188 Ariz. 342, 344-45, 935

P.2d     920,       922-23       (App.        1996)         (stating       that   §     13-4033(B)

prohibited pleading defendant from directly appealing denial of

motion to modify conditions of probation imposed at sentencing).

¶13           Hoffman cites two cases involving challenges to orders

entered as a direct consequence of plea agreements.                                    In State v.

Foy, 176 Ariz. 166, 167, 859 P.2d 789, 790 (App. 1993), the

court    of     appeals        reviewed        a       post-judgment        restitution      order

entered pursuant to a plea agreement.                               But because the court

                                                       8
assumed jurisdiction without commenting on the impact of § 13-

4033(B),       that      decision        is    not       persuasive             with   regard     to   the

statute’s meaning.

¶14            In State v. Unkefer, the court of appeals addressed

the propriety of an order authorizing the state and a victim to

record and enforce a restitution order twenty years after the

trial court had ordered the defendant to pay the restitution

amount pursuant to a plea agreement’s terms.                                     225 Ariz. 430, 432

¶¶ 3-5, 239 P.3d 749, 751 (App. 2010).                                    In a footnote, without

explanation         or    citation        to     §       13-4033(B),             the     court    assumed

jurisdiction pursuant to § 13-4033(A)(3).                                       Id. at 433 ¶ 6 n.4,

239 P.3d at 752 n.4.                     As with Foy, because Unkefer did not

consider § 13-4033(B), it does not alter our interpretation of

that provision.            To the extent Foy and Unkefer conflict with our

interpretation of § 13-4033 in circumstances like the one before

us, we disapprove those cases.

¶15            Hoffman additionally argues that because the state may

appeal     a    post-judgment             restitution                   order    that     affects      its

substantial         rights      or      those     of          a    victim,       see     A.R.S.    §   13-

4032(4),       it       would     be     absurd          to        interpret       §     13-4033(B)     as

prohibiting         a    defendant        from       appealing             the    same     order.       We

disagree.       Because the state cannot file a Rule 32 petition to

obtain appellate review, it is not inconsistent in this context

to    authorize          direct        appeal     for             the    state     but     deny   it    to

                                                     9
defendants.        Both parties are given a single route for appellate

review.

¶16           Hoffman         further     argues          it    would      be    meaningless             for

§ 13-4033(A)(3)          to       authorize      a    direct         appeal      of     a    contested

restitution        order      entered      after          judgment       only      to    have       §    13-

4033(B) eliminate that right.                        Again, we disagree.                    Subsection

(A)(3) applies generally to all post-judgment orders affecting a

defendant’s        substantial           rights;          subsection            (B)     provides          an

exception      when       such       orders      are           entered      pursuant          to        plea

agreements.        See State v. Baca, 187 Ariz. 61, 66, 926 P.2d 528,

533 (App. 1996) (holding that § 13-4033(B) “impliedly amended”

now-renumbered           §        13-4033(A)(3)).                 In       other        words,          when

subsection     (B)       applies,        subsection            (A)     cannot      be       invoked       to

authorize a direct appeal.

¶17           We    reject          Hoffman’s         related          contention            that        the

restitution order in this case was not entered “pursuant to a

plea    agreement”           because     he   contested              the    amount.           Although

restitution was not precisely calculated in the plea agreement,

Hoffman agreed to pay restitution not to exceed a capped amount

and explicitly waived his right to pursue a direct appeal.                                               See

State    v.   Phillips,           152    Ariz.       533,      535,     733     P.2d        1116,       1118

(1987)    (holding           that    a   defendant             thoroughly        understands             the

consequences        of       an    agreement         to    make       restitution           when        plea

agreement caps the amount that may be ordered).                                          Even though

                                                 10
Hoffman contested the amount of restitution eventually entered,

because this amount did not exceed the cap, it was entered as a

direct    consequence      of     the    plea       agreement,     and    §    13-4033(B)

therefore applied.         Cf. Regenold, 226 Ariz. at 379 ¶ 8, 249 P.3d

at 338 (noting that when a plea agreement states a range of

sentences,      the    pleading       defendant      receives     sentence         “pursuant

to” the agreement when the sentence is ultimately imposed).

¶18          Finally, Hoffman argues that the grounds for relief

under    Rule   32.1     might    not    encompass       a   challenge        to    a   post-

judgment restitution order based on trial error that did not

deprive the defendant of constitutional rights.                          Therefore, he

contends, the legislature must have intended to permit direct

appeal of such orders pursuant to § 13-4033(A).                          We reject this

argument because its premise is flawed.                      As the State concedes,

Hoffman is entitled to challenge the restitution order through

Rule 32 proceedings because he has a constitutional right to

appellate review.         Ariz. Const. art. 2, § 24; Smith, 184 Ariz.

at    458,   910   P.2d    at     3    (observing        that    the   “constitutional

guarantee of appellate review in all cases is effectuated for

pleading defendants” through Rule 32).                          We trust that courts

will     broadly      interpret       Rule    32    to   preserve      the     rights      of

pleading defendants to appellate review.

                                             III.

¶19          For the foregoing reasons, we hold that A.R.S. § 13-

                                              11
4033(B) bars a defendant from directly appealing a contested

post-judgment     restitution    order    entered     pursuant    to     a   plea

agreement that contemplated payment of restitution and capped

the   amount.     In   such   situations,    a   pleading   defendant        must

vindicate   the   constitutionally       guaranteed    right     of    appellate

review through Rule 32 post-conviction relief proceedings.                    We

therefore affirm the superior court’s order dismissing Hoffman’s

appeal.


                              _______________________________________
                              Ann A. Scott Timmer, Justice

CONCURRING:


_____________________________________
Rebecca White Berch, Chief Justice


_____________________________________
Scott Bales, Vice Chief Justice


_____________________________________
A. John Pelander, Justice


_____________________________________
Robert M. Brutinel, Justice




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