                                                                  FILED BY CLERK
                       IN THE COURT OF APPEALS
                           STATE OF ARIZONA                          JUN 11 2010
                             DIVISION TWO
                                                                      COURT OF APPEALS
                                                                        DIVISION TWO
THE STATE OF ARIZONA,            )
                                 )
                       Appellee, )                2 CA-CR 2009-0205
                                 )                DEPARTMENT B
         v.                      )
                                 )                OPINION
JOHN GEORGE PONSART, JR.,        )
                                 )
                      Appellant. )
                                 )


           APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

                             Cause No. CR200401314

                       Honorable Janna L. Vanderpool, Judge

                                   AFFIRMED


Terry Goddard, Arizona Attorney General
 By Kent E. Cattani and Diane Leigh Hunt                                     Tucson
                                                              Attorneys for Appellee

Harriette P. Levitt                                                          Tucson
                                                              Attorney for Appellant


E C K E R S T R O M, Presiding Judge.
¶1            In 2004, appellant John Ponsart, Jr., was convicted after pleading no contest

to attempted molestation of a child. Pursuant to a stipulation in his plea agreement, the

trial court suspended the imposition of sentence and placed him on lifetime probation. In

2008, after a contested probation violation hearing, the court found Ponsart had violated

the terms of his probation, revoked it, and sentenced him to an aggravated prison term of

fifteen years. On appeal, Ponsart relies on State v. Schmidt, 220 Ariz. 563, 208 P.3d 214

(2009), to argue the court improperly sentenced him to an aggravated term. 1 For the

following reasons, we affirm.

                                           Jurisdiction

¶2            As an initial matter, the state challenges our jurisdiction to consider

Ponsart‟s claim by way of appeal. Generally, we have jurisdiction to review a sentence

challenged “on the grounds that it is illegal or excessive,” A.R.S. § 13-4033(A)(4), but, as

the state correctly points out, our jurisdiction is limited by § 13-4033(B), which provides

that a defendant in a noncapital case “may not appeal from a judgment or sentence that is

entered pursuant to a plea agreement or an admission to a probation violation.” Id. In

this appeal, Ponsart challenges a sentence within the range authorized by his plea

agreement and imposed following revocation of the probationary term entered pursuant




       1
       Initially, Ponsart also argued he was sentenced wrongly under former A.R.S.
§ 13-604.01, 2001 Ariz. Sess. Laws, ch. 334, § 7, based on our decision in State v.
Gonzalez, 216 Ariz. 11, 162 P.3d 650 (App. 2007). But, in his reply brief, he has
conceded Gonzalez is not relevant to his appeal.

                                             2
to his plea.2      We therefore must determine whether the legislature intended to

characterize such a sentence as one “entered pursuant to a plea agreement”—over which

we have no appellate jurisdiction—or whether, in preserving a defendant‟s right to appeal

from contested probation violation hearings, the legislature also intended to preserve a

pleading defendant‟s right to appeal a sentence imposed after a contested revocation of

probation.

¶3              In construing statutes, “our primary goal is to discern and give effect to the

legislature‟s intent.” State v. Fell, 203 Ariz. 186, ¶ 6, 52 P.3d 218, 220 (App. 2002).

Clear and unequivocal language “is determinative of [a] statute‟s construction,” Janson v.

Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991), but if “the statute‟s

language is not clear, we determine legislative intent by reading the statute as a whole,

giving meaningful operation to all of its provisions, and by considering factors such as

the statute‟s context, subject matter, historical background, effects and consequences, and

spirit and purpose.” Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230

(1996).

¶4              When determining legislative intent, we give words their “plain and

ordinary meaning” and “apply a practical and commonsensical construction.” State v.

       2
         In 2004, the trial court accepted Ponsart‟s plea agreement, which provided by
stipulation that, upon conviction, he would be placed on lifetime probation. The
agreement further stated: “If probation is violated, the Defendant may be sentenced for
up to the maximum fine and the maximum term of imprisonment [for] each offense.” An
addendum to the agreement provided that the applicable statutory range of prison
sentences for the offense included a five-year minimum term, a ten-year presumptive
term, and a fifteen-year maximum term. As part of the agreement, Ponsart waived “his
right to appeal the judgment and sentence to a higher court.”
                                               3
Alawy, 198 Ariz. 363, ¶ 8, 9 P.3d 1102, 1104 (App. 2000). Here, we must assess

whether, in the context of our criminal procedure, Ponsart‟s sentence can be characterized

as one imposed “pursuant to” a plea agreement. In The American Heritage Dictionary

1006 (2d college ed. 1991), “[p]ursuant,” when used as an adjective, is defined as

“[p]roceeding from and conformable to; in accordance with”; when used as an adverb, it

is defined as “[a]ccordingly; consequently.”       According to Webster’s Third New

International Dictionary 1848 (1971), “pursuant to” is a preposition that means “in the

course of carrying out : in conformance to or agreement with : according to.”

¶5           On one hand, we recognize that Ponsart‟s sentence after revocation was a

consequence of his plea agreement in the general sense that the conviction arising from

the plea agreement was a necessary causal prerequisite to the ultimate sentence he

received. And, the sentencing was “in conformance to” the plea agreement to the extent

the agreement determined the range of potential sentencing options.

¶6           On the other hand, the post-revocation sentence did not proceed directly

from the agreement and was not imposed as a necessary or immediate consequence of the

agreement. Cf. State v. Fuentes, 26 Ariz. App. 444, 447, 549 P.2d 224, 227 (1976)

(finding full statutory sentencing range available after revocation of probation absent

indication stipulated sentencing range in plea agreement applied to post-revocation

sentence). Rather, Ponsart was exposed to the prison term here only after the trial court

had determined, following a contested hearing, that Ponsart had violated the terms and

conditions of his probation—events that were not consequences of his plea agreement.


                                            4
Because the legislature has not indicated whether it intended the phrase “pursuant to a

plea agreement” to refer to more general or direct causal consequences of a plea, we

cannot agree with the state that the plain language of § 13-4033(B) necessarily

characterizes Ponsart‟s sentence as one “entered pursuant to a plea agreement.”

¶7            We thus turn to a reading of the statute as a whole and consider its spirit

and purpose. See Zamora, 185 Ariz. at 275, 915 P.2d at 1230. In so doing, we cannot

overlook that the legislature expressly has restricted the right to appeal from sentences

imposed after a defendant has admitted a violation of probation.            § 13-4033(B)

(“[D]efendant may not appeal from a . . . sentence that is entered pursuant to . . . an

admission to a probation violation.”). At minimum, this suggests the legislature has

declined to similarly restrict a defendant‟s right to appeal a sentence imposed after the

defendant has contested whether he violated probation. Accordingly, we understand

§ 13-4033(B) to deprive us of appellate jurisdiction of sentences arising from a

defendant‟s admission that he has violated probation, but not of sentences imposed, as

here, after the defendant has contested that allegation.

¶8            A review of the statute‟s spirit and purpose reinforces this understanding of

our legislature‟s intent. As this court has observed in State v. Baca, 187 Ariz. 61, 64-65,

926 P.2d 528, 531-32 (App. 1996), “the underlying purpose” of § 13-4033(B) and

contemporaneous statutory and rule amendments “was to unclog an appellate system

burdened with guilty plea and probation violation admission appeals and divert such

cases to the Rule 32 process.” But the state‟s construction of § 13-4033(B) would not


                                              5
serve the legislative goal of diverting cases from appellate review.          As the state

acknowledges, any defendant, including one originally convicted pursuant to a plea

agreement, may appeal a contested finding that he violated the terms of his probation.

Limiting the same defendant to Rule 32 relief to challenge the resulting sentence would

thus necessitate two proceedings, by separate procedural paths to separate courts, for the

review of a single violation proceeding. Cf. State v. Medrano-Barraza, 190 Ariz. 472,

474, 949 P.2d 561, 563 (App. 1997) (determining non-pleading defendant who admitted

prior convictions entitled to appeal sentence, in part because, under contrary

interpretation of § 13-4033(B), “a defendant convicted by trial but sentenced after an

admission of prior convictions would generate two . . . proceedings: a direct appeal from

the conviction and a Rule 32 petition from the sentence”). Like the court in Medrano-

Barraza, “[w]e are confident that the legislature did not intend to require needless

multiplication of [review] proceedings.” 190 Ariz. at 474, 949 P.2d at 563.

¶9           In construing § 13-4033(B), this court has made clear that a pleading

defendant may not appeal from an order imposing probation upon conviction and may

challenge that order only in a Rule 32 proceeding. State v. Jimenez, 188 Ariz. 342, 344-

45, 935 P.2d 920, 922-23 (App. 1996). Similarly, under § 13-4033(B), a defendant who

admits violating the terms of his probation may not appeal from the sentence entered after

his probation is revoked. Baca, 187 Ariz. at 63, 66, 926 P.2d at 530, 533. But in

previous decisions, we have not hesitated to exercise our jurisdiction when a pleading

defendant has appealed from a sentence imposed after a contested probation violation


                                            6
hearing. E.g., State v. Forte, 222 Ariz. 389, ¶¶ 1, 28, 214 P.3d 1030, 1032, 1037 (App.

2009) (finding error in post-revocation sentencing proceeding harmless); State v. Ray,

209 Ariz. 429, ¶¶ 1, 6, 104 P.3d 160, 161, 162 (App. 2004) (distinguishing non-

appealable judgment and imposition of probation after acceptance of plea from

appealable order imposing sentence after contested violation hearing).

¶10           Moreover, we previously have found post-judgment orders appealable

when the basis for challenge “could not have been raised in connection with the original

judgment of guilt and imposition of probation.” State v. Delgarito, 189 Ariz. 58, 61, 938

P.2d 107, 110 (App. 1997). In Delgarito, we held that a pleading defendant is entitled to

appeal a post-judgment order designating his offense a felony because the issue is not one

“that would normally arise in an appeal from the original judgment and sentence.” Id. at

59, 60, 938 P.2d at 108, 109; see § 13-4033(A)(3) (providing right to appeal orders

“made after judgment affecting the substantial rights of the party”).         And we have

suggested, albeit in dicta, that if a trial court‟s post-judgment sentencing order changes or

modifies the sentence originally imposed, the defendant would have a right to appeal that

order even if the original judgment arose from a plea agreement. Jimenez, 188 Ariz. at

345, 935 P.2d at 923. Here, the sentence Ponsart challenges, a fifteen-year prison term,

considerably modifies his original disposition of lifetime probation, and his challenge to

it could not have been raised in the original proceedings because no such sentence had

yet been imposed.




                                             7
¶11          The state contends that our decision in State v. Rodriguez-Gonzales, 208

Ariz. 198, 92 P.3d 424 (App. 2004), supports its argument that we have no jurisdiction

over Ponsart‟s claim. There, pleading defendants had appealed from new sentences

imposed after their original sentences had been vacated in Rule 32 proceedings.

Rodriguez-Gonzales, 208 Ariz. 198, ¶ 1, 92 P.3d at 425. Each defendant had argued that

his new sentence was appealable as “an order made after judgment affecting [his]

substantial rights” under what is now § 13-4033(A)(3). Rodriguez-Gonzales, 208 Ariz.

198, ¶ 4, 92 P.3d at 425. In rejecting the defendants‟ argument, we distinguished the

defendants‟ sentences, imposed after their original sentences had been vacated, from an

order granting a motion to modify a sentence. Id. ¶¶ 5-6. We emphasized that “the

resentencing orders were not changes or modifications of the sentences originally

imposed, but new orders, replacing the original unlawful orders as if they had not

existed” and, thus, must be considered as sentences entered pursuant to the defendants‟

plea agreements under § 13-4033(B). Id. ¶ 6; accord State v. Celaya, 213 Ariz. 282,

¶¶ 1-2, 6-7, 141 P.3d 762, 762, 763 (App. 2006).

¶12          In contrast to the new sentences imposed in Rodriguez-Gonzales and

Celaya, Ponsart‟s sentence of imprisonment did not replace his original probationary

term as if it had never existed. Rather, the trial court imposed the prison term after

intervening proceedings in which the court determined Ponsart had violated the terms of

his probation. In short, our rationale for rejecting appellate jurisdiction in Rodriguez-

Gonzales does not apply here.


                                           8
                                        Sentence

¶13          Having concluded we have jurisdiction to consider Ponsart‟s appeal, we

reject Ponsart‟s claim that he received an illegal sentence. Relying on State v. Schmidt,

220 Ariz. 563, 208 P.3d 214 (2009), Ponsart argues his aggravated sentence is illegal

because it was “based almost entirely” on aggravating circumstances falling within the

catch-all provision of former A.R.S. § 13-702(C)(20), 2003 Ariz. Sess. Laws, ch. 225,

§ 1.3 In Schmidt, our supreme court held the “[u]se of the catch-all [provision in former

A.R.S. § 13-702(D)(13)] as the sole factor to increase a defendant‟s statutory maximum

sentence violates due process,” because that provision “is patently vague.” Schmidt, 220

Ariz. 563, ¶¶ 9-10, 208 P.3d at 217.4 But the court in Schmidt further explained:

                     When one or more clearly enumerated aggravators are
             found consistent with Apprendi [v. New Jersey, 530 U.S. 466
             (2000)], and they allow imposition of an aggravated sentence
             under the relevant statutory scheme, the “elements” of the
             aggravated offense will have been identified with sufficient
             clarity to satisfy due process. Subsequent reliance on other
             factors embraced by a catch-all provision to justify a sentence
             up to the statutory maximum comports with the traditional
             discretionary role afforded judges in sentencing.

Schmidt, 220 Ariz. 563, ¶ 11, 208 P.3d at 217.



      3
        Significant portions of the Arizona criminal sentencing code have been
renumbered, effective “from and after December 31, 2008.” See 2008 Ariz. Sess. Laws,
ch. 301, §§ 1-120. We refer in this opinion to the section number in effect at the time of
the principal offense in this case, on April 4, 2004.
      4
        The catch-all aggravating circumstance considered by the court in Schmidt was
nearly identical to the provision in force when Ponsart committed his offense. See 220
Ariz. 563, ¶ 8, 208 P.3d at 217.
                                            9
¶14           As the state points out, among other aggravating circumstances the trial

court considered at sentencing, it found “there was physical and emotional harm caused

to the victim,” an aggravating circumstance specifically enumerated by statute. See 2003

Ariz. Sess. Laws, ch. 225, § 1 (listing “[t]he physical, emotional and financial harm

caused to the victim” under former § 13-702(C)(9)). Thus, as long as sufficient evidence

supported this finding—a “clearly enumerated aggravator[]” under Schmidt—the court

did not err in considering other aggravating factors or in imposing an aggravated

sentence. Schmidt, 220 Ariz. 563, ¶ 11, 208 P.3d at 217.

¶15           In a conclusory fashion, Ponsart asserts “[t]here was no evidence that the

victim suffered physical or emotional harm,” and argues, “if this aggravating factor had

existed at the time [Ponsart] entered a guilty plea, he would surely not have been

sentenced to a term of probation.” But he cites no authority supporting the proposition

that a trial court must reject a plea agreement containing a stipulated disposition of

probation on the ground it later might find aggravating circumstances at sentencing.

Moreover, we agree with the state that the court‟s finding of emotional harm was

reasonably supported by the victim‟s impact statement, which reported the child victim

had experienced “nightmares, trouble sleeping[, and] crying for no reason,” and had

needed professional counseling as a result of the molestation. We “„defer to the trial

court‟s factual findings that are supported by the record and [are] not clearly erroneous,‟”

and we will overturn those findings “only if no substantial evidence supports them.”




                                            10
State v. Rodriguez, 205 Ariz. 392, ¶ 18, 71 P.3d 919, 924 (App. 2003), quoting State v.

Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 307 (App. 2000).

¶16          We find no error and no abuse of discretion in the trial court‟s imposition of

sentence. We therefore affirm the court‟s revocation of Ponsart‟s probation and the

sentence imposed.


                                            /s/ Peter J. Eckerstrom
                                            PETER J. ECKERSTROM, Presiding Judge

CONCURRING:


/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge


/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Judge




                                           11
