NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Appellee
,

v.

DANIEL WAYNE GIBSON
, Appellant

.
No. 1 CA

- CR 21

- 0448

Appeal from the Superior Court in Mohave County

No. S8015CR201800464 The Honorable Richard D. Lambert
, Judge

APPEAL DISMISSED

COUNSEL
Arizona Attorney General’s Office , Phoenix By Gracynthia Claw Counsel for Appellee

Law Firm of Daniel B. Kaiser
, Flagstaff By Daniel B. Kaiser C ounsel for Appellant FILED 6-2-2022STATE v. GIBSON Decision of the Court

2 MEMORANDUM DECISION
Judge Brian Y. Furuya delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.

F U R U Y A , Judge:

¶1 Daniel Wayne Gibson appeals from a restitution order entered pursuant to a guilty plea

. We dismiss the appeal for lack of jurisdiction.

FACT S AND PROCEDURAL HISTORY

¶2 The State charged Gibson with burglary in the third degree, theft, transporting a motor vehicle to a chop shop, and two counts of theft of means of transportation. Gibson accepted the State’s offer to plead guilty to an amended charge of attempted theft of means of transportation . The plea agreement stipulated that Gibson be sentenced to two years’ imprisonment and that he pay “restitution to the victims on all counts, including any and all dismissed counts, with [a] restitution cap of $242,000.00 .” Gibson further agreed he would have no “right to appeal from the judgment or sentence imposed as a result of th[e] stipulat ed guilty plea.” In exchange for Gibson’s plea, the State agreed to dismiss the other charges.

¶3 The superior court accepted Gibson’s plea
, sentenced him to two years’ imprisonment with 41 2 days’ presentence incarceration credit
, dismissed the other charges, and scheduled a restitution hearing. The hearing was continued multiple times, and Gibson moved, after he had been released from prison for more than a year, to deny any restitution order on account of unreasonable delay. The court denied Gibson’s motion, held a restitution hearing
, and entered a n order requiring him to pay $31,013.26 in restitution.

¶4 Gibson appealed, arguing that the court lacked jurisdiction to order restitution after his sentence had expired
, that the delay between the imposition of sentence and order of restitution was unreasonable, and that the amount of restitution ordered exceeded the victims’ economic loss. The State dispute s Gibson’s claims.STATE v. GIBSON Decision of the Court

3 DISCUSSION

¶5 The Arizona Constitution guarantees criminal defendants a right to appeal. Ariz. Const. art. 2, § 24. But for defendants who plead guilty in noncapital cases
, the constitutional right to appeal may only be exercised through a proceeding for post

- conviction relief. See State v. Smith , 184 Ari z. 456, 458 (1996)

. Th at limitation is expressed in our statutes and rules. Subsection (B) of Arizona Revised Statutes (“ A.R.S. ”) § 13

- 403 3 states : “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.” Arizona Rule of Criminal Procedure (“Rule”) 17.1(e) provides: “A defendant who pleads guilty or no contest in a noncapital case waives the right to file a notice of appeal and to have an appellate c ourt review the proceedings on a direct appeal under Rule 31. A defendant who pleads guilty or no contest may seek relief under R ule 33 by filing a Notice Requesting Post

- C onviction Relief and a Petition for Post

- Conviction Relief in the trial court.” Cons istent with those provisions, Gibson received a notice when he was sentenced informing him he had no right to a direct appeal if he had pleaded guilty

. ¶6 Gibson and the State both assert in their briefs that we have jurisdiction over Gibson’s appeal under A. R.S. § 13

- 4033(A)

— the statute
enumerat ing what decisions are appealable by a criminal defendant

. Neither party addresses the applicability of § 13

- 4033(B) or Rule 17. 1(e)

. We have an independent duty to assess and confirm our appellate jurisdiction, which “ is provided and limited by law” and which may not be conferred by the parties’ agreement or error

. State v. Serrano
, 234 Ariz. 491, 493, ¶ 4 (App. 2014)

. ¶7 In Hoffman v. Chandler ex rel. Cnty

. of Pima , 231 Ariz. 362 (2013),
our supreme c ourt considered w hether a post

- judgment restitution order entered after the defendant pleaded guilty was appealable under § 13

- 4033(A)(3) ( appeal o f post

- judgment order affecting the defendant ’ s substantial rights ) or subject to § 13

- 4033(B)’s limitation on direct appeal

. The court held that “when subsection (B) [of § 13

- 4033] applies, subsection (A) cannot be invoked to authorize a direct appeal.” Id. at 365, ¶ 16. Reasoning that the legislature intended a post

- judgment restituti on order contemplated by a plea agreement to be treated as part of the defendant’s “sentence” under § 13

- 4033(B), id. at 364, ¶¶ 9

– 11, the supreme court held that § 13

- 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 up to a capped amount. Any appellateSTATE v. GIBSON Decision of the Court

4 review must be obtained through post

- conviction relief proceedings.” Id. at 362

– 63, ¶ 1.

¶8 We see no meaningful distinction between this case and Hoffman that would cast doubt on Hoffman ’s applicability here. Like the defendant in Hoffman
, Gibson agreed, in accepting the plea offer, to pay restitution up to a capped amount and to waive the right to a direct appeal. Id. at 365, ¶ 17. Also as in Hoffman
, the restitution in Gibson’s case was contested and ordered after the sentencing hearing

. Id. at 363, ¶ 3. Neither of those facts altered the Hoffman court’s decision that the restitution order

was not appealable

.
CONCLUSI ON

¶9 Because the restitution order in Gibson’s case was entered pursuant to a plea agreement that contemplated the payment of restitution up to a capped amount, Gibson ’s direct appeal of the order is barred by A.R.S. § 13

- 4033(B) and Rule 17.1(e). We therefore dismiss the appeal for lack of jurisdiction

.