                              IN THE COURT OF APPEALS
                                  STATE OF ARIZONA
                                    DIVISION TWO


THE STATE OF ARIZONA,                          )
                                               )          2 CA-CR 2002-0285
                                  Appellee,    )          2 CA-CR 2002-0431
                                               )          (Consolidated)
                    v.                         )          DEPARTMENT B
                                               )
ARMANDO D. RODRIGUEZ-                          )          O P I N IO N
GONZALES; and WILLIAM RALPH                    )
HIEBER                                         )
                                               )
                                Appellants.    )
                                               )


           APPEALS FROM THE SUPERIOR COURT OF PIMA COUNTY

                          Cause Nos. CR-65642 and CR-20000093

                            Honorable Deborah Bernini, Judge
                         Honorable H oward Fell, Judg e Pro Tempo re

                                        DISMISSED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Diane Leigh Hunt                                              Tucson
                                                                       Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender
  By Joy Athena                                                                     Tucson
                                                                   Attorneys fo r Appellan ts


E S P I N O S A, Chief Judge.
¶1            In consolidated direct appeals, appellants Armando Rodriguez-Gonzalez and

William Hieber challenge their sentences. Both had originally been sentenced following guilty

pleas but had been granted new sentencing hearings through successful post-conviction

proceedings pursuant to Rule 32, Ariz. R . Crim. P., 17 A .R.S. Appellants argue tha t this court

has subject matter jurisdiction and that they are not required to engage in further Rule 32

proceedings to challenge their new sentences. For the reasons set forth below, we disagree

and dismiss the appeals.

                             Facts and Procedural Background

¶2             Followin g a mistrial on m ultiple narcotics charges, Rodriguez-Gonzalez pled

guilty to possessing heroin for sale, a class two felony, with one prior conviction. The trial

court sentenced him to a partia lly aggravated prison term of twelve years enhanced by his prior

federal conviction for illegal reentry. In his Rule 32 petition, R odriguez-G onzalez argued his

sentence was unlawfully enhanced because there is no Arizona offense equivalent to illegal

reentry. See A.R.S. § 13-604(N). The trial court agreed and granted Rodriguez-Gonzalez a

new sentencing hearing. He wa s subsequ ently sentence d to a presu mptive, five-year term to

be served consecutively to the term imposed in his federal case, and filed a timely notice of

appeal.

¶3             Hieber had pled guilty to aggravated assault, endangerment, and misdemeanor

driving while under the influence of an intoxicant. The trial court sentenced him to concurrent

prison terms, the longest of w hich was an aggrav ated, five-year term on the a ggravated assault

charge. This court granted Hieber partial relief in his petition for review of the trial court’s

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summary denial of his Rule 32 petition, finding he had raised colorable claims of wheth er his

aggravated assault sentence had been unlawfully aggravated by charges that were then pending

and whether the evidence supported the amount of restitution imposed. State v. Hieber, No. 2

CA-CR 2001-0408-PR (memorandum de cision filed June 4, 2002).                    The trial court

subseque ntly resentenced Hieber to a presum ptive 3.5-yea r prison term fo r aggravate d assault.

This appeal followed.

                                 Subject Matter Jurisdiction

¶4             Appellan ts acknowledge that defendants who plead guilty are not entitled to

direct review in this court, see A.R.S. § 13-4033(B); Ariz. R. Crim. P. 17.1(e), 16A A.R.S., but

argue that direct appeal is now ap propriate because they are challenging sentences imposed

during new sentencing hearings. A ppellants contend they have rights of direct review under

§ 13-4033(A)(2 ) or (A)(3). Under those pro visions, a defendant ma y take an appeal from “[ a]n

order denying a motion for a new trial or from an order made after judgment affecting the

substantial rights of the party,” § 13-4033(A)(2), or from “[a] sentence o n the grounds that it

is illegal or excessive.” § 13-403 3(A)(3).

¶5             As the state points out, the provisions of § 13-4033(A)(2) and (3) are limited

by subsection B to certain defendants. That subsection states, “[i]n noncapital cases a

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

agreement or an adm ission to a pro bation violation.” Accordingly, any right of appeal

appellants have under subsection (A)(2) or (A)(3) “is restricted by subsection (B), which

precludes a direct appeal from a judgment or sentence entered pursuant to a plea agreement.”

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State v. Jimenez, 188 Ariz. 342, 34 4, 935 P.2d 920, 922 (Ap p. 1996); see also Ariz. R.

Crim. P. 17.1(e) (“By pleading guilty . . . in a nonc apital case, a d efendant w aives the righ t 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.”). Here, the new sentencing ord ers merely plac ed appellan ts in the position in

which they would have b een had they been se ntenced correctly in the first place. See State v.

Thomas, 142 Ariz . 201, 204, 688 P.2d 1093, 1096 (App. 1984) (after sentences vacated by

appellate court and case remanded, trial court “was not modifying previously imposed

sentences . . . but rather was sentencing anew”); State v. Py eatt, 135 Ariz. 141, 143, 659 P.2d

1286, 1288 (A pp. 1982 ) (“An illegal sentence is no sentence at all.”). Consequently, the

appellants are seeking direc t review of a sentence e ntered purs uant to a plea agreeme nt,

something this court has no jurisdictio n to do. § 1 3-4033(B ); Jimenez.

¶6             In seeking to avoid this result, appellants rely on Jimenez, a Division One case

in which a defen dant ha d pled g uilty, was placed on probation, and then appealed from the trial

court’s denial of a motion to modify the conditions of probation. The court dismissed the

appeal for want o f subject ma tter jurisdiction, concludin g that the court’s denial of the

defendant’s motion to modify the terms o f his probatio n was no t an order affecting his

substantial rights. The court then stated, “If the trial court’s order had actually changed or

modified the judgment or sentence originally imposed, we assume defendant would have had

the right of direct appeal.” Jimenez, 188 Ariz. at 345, 935 P.2d at 923. But here, the

resentencing orders were not changes or modifications of the sentences originally imposed,

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but new orders, replacing the original unlawful orders as if they had not existed. See Thomas;

Pyeatt.

¶7            We conclude we do not have appellate jurisdiction of these consolidated appeals;

they are therefore dismissed.



                                               PHILIP G. ESPINOSA, Chief Judge

CONCURRING:




JOHN PELANDER, Presiding Judge




PETER J. ECKERSTROM, Judge




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