IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

v.

MANUEL DAVID PEREZ-GUTIERREZ,

Appellant.

No. CR-23-0137-PR

Filed May 31, 2024

Appeal from the Superior Court in Maricopa County

The Honorable Geoffrey H. Fish, Judge

No. CR2020-135003-001

REMANDED

Opinion of the Court of Appeals, Division One

255 Ariz. 232 (App. 2023)

VACATED WITH INSTRUCTIONS

COUNSEL:

Kristin K. Mayes, Arizona Attorney General, Alice M. Jones, Deputy 

Solicitor General, Section Chief of Criminal Appeals, Ashley Torkelson 

Levine (argued), Assistant Attorney General, Criminal Appeals Section, 

Phoenix, Attorneys for State of Arizona

James J. Haas, Maricopa County Public Defender, Aaron J. Moskowitz 

(argued), Maricopa County Deputy Public Defender, Phoenix, Attorneys 

for Manuel Perez-Gutierrez.
STATE V.PEREZ-GUTIERREZ

Opinion of the Court

2

JUSTICE BEENE authored the Opinion of the Court, in which CHIEF 

JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER and JUSTICES 

BOLICK, LOPEZ, MONTGOMERY, and KING joined.

JUSTICE BEENE, Opinion of the Court:

¶1 Most errors made by a trial court fall into one of two 

categories: trial error or structural error. See State v. Ring, 204 Ariz. 534, 552 

¶ 45 (2003). If a criminal defendant does not object to trial error when it 

occurs, the error is only reversable on appeal if it is “fundamental” and 

prejudicial. State v. Escalante, 245 Ariz. 135, 140 ¶ 12 (2018). Conversely, if 

a defendant can establish that structural error occurred, the error results in 

automatic reversal, regardless of whether the error prejudiced the 

defendant—and regardless of whether an objection was lodged at trial. See 

Ring, 204 Ariz. at 552 ¶ 45.

¶2 But not all trial errors require an appellate court to reverse or 

affirm the trial court’s disposition. Consequently, Arizona courts have 

developed a limited-remand practice. This practice does not require a 

showing of prejudice, but it also does not necessarily result in reversal. 

Courts have not always agreed on when it is appropriate to deploy this 

limited-remand practice.

¶3 This case calls for us to decide whether an unobjected-to

violation of A.R.S. § 13-711(A)—which requires courts to explain certain 

sentencing decisions on the record—is amenable to: (1) fundamental-error 

review, (2) structural-error review, or (3) the limited-remand practice 

developed in cases like State v. Anzivino, 148 Ariz. 593 (App. 1985), and State 

v. Harrison, 195 Ariz. 1 (1999). Because violations of § 13-711(A) are akin to 

administrative errors that a trial court can correct without affecting the 

disposition, we hold that a remand for the limited purpose of statutory 

compliance is appropriate.

BACKGROUND

¶4 A jury convicted Manuel Perez-Gutierrez of eight counts of 

sexual conduct with a minor. Perez-Gutierrez’s victim was under the age 

of fifteen for counts one and two, resulting in two twenty-year terms of 

imprisonment. He received one-year sentences for the remaining six 
STATE V.PEREZ-GUTIERREZ

Opinion of the Court

3

counts. The court ordered Perez-Gutierrez to serve all sentences 

consecutively.

¶5 Arizona law compelled the trial court to impose consecutive 

sentences for counts one and two. See A.R.S. § 13-705(E), (P), (T); A.R.S.

§ 13-1405. But the court had discretion to impose the remaining sentences 

consecutively or concurrently. See §§ 13-711(A), -1405. When deciding 

whether to impose sentences consecutively or concurrently, however, the 

court was statutorily required to “state on the record the reason for its 

determination.” § 13-711(A). The trial court here failed to do so. 

Perez-Gutierrez did not object, but he did appeal on that basis. State v. 

Perez-Gutierrez, 255 Ariz. 232, 232 ¶ 1 (App. 2023). On appeal, he

argued—for the first time—that “the superior court erred by failing to 

explain why it imposed consecutive sentences as required by A.R.S. 

§ 13-711(A).” Id. at 234 ¶ 6.

¶6 A split court of appeals agreed with Perez-Gutierrez, 

remanding the case with instructions for the trial court to put the reasons 

for its sentencing determination in the record. Id. at 238 ¶ 27. Relying on 

the Anzivino and Harrison lines of cases, the court of appeals’ majority 

explained that § 13-711(A) requires a judge to: (1) articulate at sentencing 

the factors he or she considered, and (2) explain how those factors led to the 

sentence he or she imposed. See id. at 235 ¶ 13. The court of appeals held 

that if a judge fails to substantially comply with these requirements, the 

case must be remanded for the trial court to satisfy § 13-711 by providing 

its sentencing reasons. Id. at 235 ¶ 14.

¶7 The dissenting judge agreed that the superior court had 

violated § 13-711(A) but believed that remand was unnecessary. Id. at 238

¶¶ 28–29 (Catlett, J., dissenting). Instead, the dissent maintained that the 

court of appeals’ usual trial error framework should apply. Id. ¶ 29. That 

is, if a trial court violates § 13-711(A), appellate courts should review for 

harmless error if the defendant objects, and fundamental error if the 

defendant does not. Id. And here, because Perez-Gutierrez did not object 

at trial, the dissent argued that the court of appeals should review for 

fundamental error and affirm the sentences. Id.

¶8 A separate court of appeals’ panel subsequently issued State 

v. Garcia, 256 Ariz. 434, 436 ¶ 2 (App. 2023), which explicitly endorsed the 
STATE V.PEREZ-GUTIERREZ

Opinion of the Court

4

dissent’s analysis in Perez-Gutierrez. We granted review to resolve this 

conflict, and because the standard of review for violations of § 13-711(A) is 

a recurring issue of statewide importance. We have jurisdiction pursuant 

to article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

¶9 This Court reviews the interpretation of sentencing statutes 

de novo, Allen v. Sanders, 240 Ariz. 569, 571 ¶ 9 (2016), but reviews a “trial 

judge’s reason[s] for imposing . . . consecutive sentences” for an abuse of 

discretion, see State v. Meeker, 143 Ariz. 256, 266 (1984); see also § 13-711(A).

I.

¶10 When imposing multiple sentences of imprisonment, 

sentencing courts are governed by § 13-711, which reads in relevant part:

A. Except as otherwise provided by law, if multiple 

sentences of imprisonment are imposed on a person at the 

same time, the sentences imposed by the court may run 

consecutively or concurrently, as determined by the court. The

court shall state on the record the reason for its determination.

§ 13-711(A) (emphasis added). The final sentence of this section imposes a 

duty on sentencing courts to explain, on the record, their reasons for 

imposing sentences either consecutively or concurrently.

¶11 Sentencing courts are also governed by the Arizona Rules of 

Criminal Procedure promulgated by this Court. One such rule, concerned 

with consecutive sentences, reads in relevant part:

If the court imposes separate sentences of imprisonment on a 

defendant for two or more offenses, the sentences run 

consecutively unless the judge expressly directs otherwise. This 

rule applies even if the offenses are not charged in the same 

indictment or information. There is no presumption favoring 

consecutive sentences rather than concurrent sentences.
STATE V.PEREZ-GUTIERREZ

Opinion of the Court

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Ariz. R. Crim. P. 26.13 (emphasis added). Unlike § 13-711(A), this rule does 

not require a sentencing court to state its reasons for imposing consecutive 

sentences.

¶12 Section 13-711(A) and Rule 26.13 both apply to sentencing 

procedures, and the duty to explain sentencing decisions required by 

§ 13-711(A) ostensibly conflicts with Rule 26.13. And “in the event of 

irreconcilable conflict between a procedural statute and a 

[Court-promulgated] rule, the rule prevails.” Seisinger v. Siebel, 220 Ariz. 

85, 89 ¶ 8 (2009). This is because our constitution vests this Court—and it 

alone—with the “[p]ower to make rules relative to all procedural matters 

in any court.” Ariz. Const. art. 6, § 5(5); see also id. art. 3 (delineating 

Arizona’s separation of powers).

¶13 Here, however, we avoid this potential constitutional conflict

by prospectively adopting § 13-711(A)’s on-the-record requirement. See 

generally In re Pima Cnty. Juv. Action No. S-933, 135 Ariz. 278, 281 (1982) 

(avoiding a potential constitutional issue by adopting A.R.S. § 8-538(A)’s

statutory on-the-record requirement); cf. Seisinger, 220 Ariz. at 89 ¶ 11

(explaining that courts will construe statutes to avoid constitutional 

violations when possible). Section 13-711(A)’s procedural requirement is 

reasonable, workable, and enables meaningful appellate review. 

Henceforth, regardless of whether a sentencing judge imposes sentences 

consecutively or concurrently, the judge must state on the record the reason 

for his or her determination.

II.

¶14 Having adopted § 13-711(A)’s procedural requirement, we 

now address the merits of Perez-Gutierrez’s appeal.

A.

¶15 As a threshold matter, we note that this requirement regulates 

secondary conduct which occurs during the sentencing process. Cf. 

Landgraf v. USI Film Prods., 511 U.S. 244, 275 (1994) (“[R]ules of procedure 

regulate secondary rather than primary conduct . . . .”). And neither the 

State nor Perez-Gutierrez have a vested interest in matters of procedure. 

See id.; accord Aranda v. Indus. Comm’n, 198 Ariz. 467, 470 ¶ 11 (2000). Thus, 

we may apply § 13-711(A) to Perez-Gutierrez’s ongoing appeal without 
STATE V.PEREZ-GUTIERREZ

Opinion of the Court

6

impermissibly interfering with the parties’ vested rights. See Aranda, 198 

Ariz. at 470 ¶ 11.

B.

¶16 As previously noted, § 13-711(A) requires a sentencing court 

to “state on the record the reason[s] for its [sentencing] determination.” 

Failure to substantially comply with this requirement is error. Cf. Harrison, 

195 Ariz. at 4 ¶ 12. In this context, substantial compliance requires the trial 

court to sufficiently (1) articulate the relevant factors it considered, and (2)

explain how those factors led to the court’s sentencing determination. See 

id. Here, the record is bereft of any discussion of relevant factors and how 

they led to the sentence imposed. The trial court, therefore, erred by failing 

to substantially comply with § 13-711(A). The appropriate remedy for this 

error depends on the nature of the violation and how courts review 

violations of a similar nature.

¶17 Appellate courts review violations of “certain basic, 

constitutional guarantees that should define the framework of any criminal 

trial” for structural error. See Weaver v. Massachusetts, 582 U.S. 286, 295 

(2017); accord Ring, 204 Ariz. at 552–53 ¶¶ 45–46. These violations are 

uncommon—and highly consequential. See State v. Torres, 208 Ariz. 340, 

344 ¶ 11 (2004) (listing examples of structural error, including “complete 

denial of counsel [and] a biased trial judge”). Structural errors can corrupt 

the framework of a criminal trial so thoroughly that the trial cannot reliably

determine whether a defendant is guilty or innocent. Ring, 204 Ariz. at 552 

¶ 45. Put simply, structural error is so significant that the affected 

disposition is necessarily unreliable. If a defendant can establish that a 

structural error has occurred—even if the defendant did not object at 

trial—the only remedy is reversing the affected disposition. Id.; see also 

Weaver, 582 U.S. at 294–95.

¶18 Most other trial deficiencies constitute “trial error.” Ring, 204 

Ariz. at 552 ¶ 45. A defining feature of trial error is that appellate courts 

may quantitatively assess the prejudice caused by these errors to determine 

whether the error harmed the defendant. See id. When a defendant

properly objects to a trial error, we review for “harmless error,” and the 

state must “prove beyond a reasonable doubt that the error did not 

contribute to or affect the verdict or sentence.” State v. Henderson, 210 Ariz. 
STATE V.PEREZ-GUTIERREZ

Opinion of the Court

7

561, 567 ¶ 18 (2005). When a defendant does not object to a trial error, 

however, he or she forfeits appellate relief unless the defendant can 

establish “fundamental error by showing that (1) the error went to the 

foundation of the case, (2)the error took from the defendant a right essential 

to his defense, or (3) the error was so egregious that he could not possibly 

have received a fair trial.” Escalante, 245 Ariz. at 142 ¶ 21. If the defendant 

establishes fundamental error under either of the first two prongs, a 

separate showing of prejudice is required, but if fundamental error is 

shown under the third prong, prejudice is presumed, and the reviewing 

court must reverse the affected disposition. Id.

¶19 Given these definitions, it is apparent that violations of 

§ 13-711(A) are neither structural nor trial error. This error is not structural 

error for two reasons. First, § 13-711(A) is not a basic constitutional 

guarantee. Second, and more importantly, sentences are not rendered 

unreliable simply because a court did not articulate its reasons for imposing 

them consecutively. To be sure, compliance with § 13-711(A) assists 

appellate review, but violations of this statute merely complicate review,

rather than affect the reliability of a sentencing disposition. Thus, 

§ 13-711(A) violations are not structural errors.

¶20 Section 13-711(A) violations are also not ordinary trial errors. 

This is because appellate courts may quantitatively review trial errors to 

determine if they affected the trial court’s disposition. See Ring, 204 Ariz. 

at 552 ¶ 45; see also State v. Smith, 219 Ariz. 132, 136 ¶ 20 (2008) (explaining 

that sentence-enhancement errors, which necessarily affect a sentencing 

disposition, are amenable to fundamental-error review). But § 13-711(A) 

violations do not affect the reliability of a sentence nor influence the 

sentencing court’s disposition. And—because these violations do not 

influence a sentence’s disposition—their effect cannot be quantitatively 

reviewed for prejudice. Cf. Smith, 219 Ariz. at 136 ¶ 22 n.8 (noting that, if a 

sentence-enhancement error occurred, the court of appeals can assess

“whether it resulted in prejudice”). Thus, § 13-711(A) violations are not 

trial errors thatrequire reversal under either harmless error or fundamental 

error review.

¶21 This conclusion—that a sentencing court’s failure to comply 

with § 13-711(A) is neither structural nor ordinary trial error—comports 

with our conclusion in Harrison. In Harrison, we concluded that failure to 
STATE V.PEREZ-GUTIERREZ

Opinion of the Court

8

comply with an analogous statute was not amenable to quantitative review. 

195 Ariz. at 5 ¶ 17 (rejecting “a harmless error analysis” for violations of 

A.R.S. § 13-702, which requires a sentencing court to place findings and 

reasons for imposing an aggravated or mitigated sentence on the record). 

Similarly, in Anzivino, the court of appeals correctly concluded that failure 

to comply with A.R.S. § 13-708 (which was renumbered as § 13-711 and 

required a sentencing court to “state [its] grounds for imposing consecutive 

sentences”) did “not fit neatly into th[e] definition of fundamental error.” 

148 Ariz. at 597–98. We agree.

¶22 The State nevertheless suggests that we implicitly overruled 

Anzivino and Harrison when we clarified fundamental error review in 

Henderson. This suggestion is incorrect. In Henderson, we addressed what 

an appellant must show to prevail under a fundamental-error standard, not 

when an appellate court should apply fundamental-error review. See id.

at 568 ¶ 21. Accordingly, Henderson is not inconsistent with, and did not 

overrule, either Anzivino or Harrison. Cf. Shinn v. Ariz. Bd. of Exec. Clemency, 

254 Ariz. 255, 263 ¶ 31 (2022) (declining to assume this Court had overruled

“longstanding . . . jurisprudence by implication”).

¶23 The State further argues that § 13-711(A) violations are 

amenable to fundamental-error review because courts review violations of

other rules and statutes for fundamental error. See, e.g., State v. Smith, 250 

Ariz. 69, 91–92 ¶¶ 95–98 (2020) (reviewing trial court’s failure to comply 

with Rule 19.1(d) for fundamental error); State v. Delahanty, 226 Ariz. 502, 

504–05 ¶¶ 7–12 (2011) (reviewing trial court’s failure to comply with A.R.S. 

§ 13-754(A) for fundamental error). But this argument also misses the mark. 

These rules and statutes differ from § 13-711(A) because violations of these 

rules and statutes may affect a court’s disposition. More precisely, 

§ 13-711(A) imposes an administrative duty that assists appellate review, 

whereas Rule 19.1(d) and § 13-754(A) impose duties that protect a criminal 

defendant’s rights. See, e.g., Smith, 250 Ariz. at 91 ¶ 92 (recognizing that 

Rule 19.1(d) protects a defendant’s “right to a fair trial”). And because these 

rules and statutes implicate a defendant’s rights, violations may affect a 

court’s disposition—which means that appellate courts may review these 

violations for prejudice. See Part II(B) ¶ 20. Thus, courts may review

violations of these rules and statutes for fundamental error. We cannot say 

the same for violations of § 13-711(A).
STATE V.PEREZ-GUTIERREZ

Opinion of the Court

9

¶24 At bottom, § 13-711(A) violations are not meaningfully 

reviewable using our traditional standards of review. Accordingly, we 

conclude that violations of § 13-711(A) are not amenable to structural- or 

fundamental-error review, and we apply the limited-remand practice 

developed in Anzivino and Harrison. Once a party establishes a § 13-711(A) 

violation, appellate courts should stay the appeal and remand the case for 

the trial court to correct its administrative error by explaining its sentencing 

determination on the record. Thereafter, the appeal may proceed, and the 

court may address arguments regarding the trial court’s sentencing 

decision. This must occur regardless of whether a defendant objected 

during sentencing.1

C.

¶25 Though we approve of Anzivino’s and Harrison’s 

limited-remand practice, we must qualify our approval. This is because the

Anzivino and Harrison courts went too far by remanding the defendants’

cases for resentencing. A resentencing—and all that it entails—is not 

necessary to remedy a failure to substantially comply with § 13-711(A).

¶26 Indeed, as the State indicates, vacating or reversing sentences

for a § 13-711(A) violation may be unconstitutional. This is because article 

6, section 27 of the Arizona Constitution tells us that “[n]o cause shall be 

reversed for technical error in pleadings or proceedings when upon the 

whole case it shall appear that substantial justice has been done.” In this 

context, “technical errors” are errors that “do not affect the substantial 

rights of the accused.” State v. Lane, 72 Ariz. 220, 227 (1951). And errors 

affect “substantial rights” when there is “a reasonable probability that the 

error affected the outcome” of a proceeding. See United States v. Marcus, 560 

U.S. 258, 262 (2010).

1 To be clear, this is a unique remedy for a unique situation. If a defendant 

does not object to the imposition of consecutive sentences in the trial 

court—a different issue from substantially complying with 

§ 13-711(A)—the court of appeals must review for fundamental error. See 

State v. Carlson, 237 Ariz. 381, 400 ¶ 78 (2015). Alternatively, if the 

defendant objects, courts must review the objection under the 

harmless-error standard. Id. at 396 ¶ 52.
STATE V.PEREZ-GUTIERREZ

Opinion of the Court

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¶27 As explained above, § 13-711(A) violations do not affect 

courts’ dispositions. Because these violations do not affect the outcome

courts reach, they do not affect the substantial rights of the accused and are 

“technical errors” within the meaning of article 6, section 27. Thus, were 

we to vacate a sentence and remand for resentencing after a violation of 

§ 13-711(A)—as done in Anzivino—our constitution would be implicated. 

But sending a matter back for clarification and compliance with the statute 

neither disturbs a sentence nor requires resentencing. And a limited 

remand also protects a victim’s right to a prompt conclusion after a 

conviction. See Ariz. Const. art. 2, § 2.1(10).

¶28 Accordingly, today’s holding does not disturb 

Perez-Gutierrez’s sentences. Instead, we vacate the court of appeals’ 

opinion and remand this matter to it with instructions to suspend 

Perez-Gutierrez’s appeal and revest jurisdiction in the trial court for the 

limited purpose of satisfying § 13-711(A)’s requirement that the court “state 

on the record the reason for its determination.” The trial court must correct 

the omission by placing on the record the reasons for its sentencing 

decisions. See generally Ariz. R. Crim. P. 24.4 (“The court . . . may, at any

time, correct clerical errors, omissions, and oversights in the record.”). 

Thereafter, jurisdiction revests with the court of appeals. That court must

then permit the defense an opportunity to argue that the trial court erred 

by imposing consecutive sentencing and permit the State to respond to such 

arguments. We abrogate Anzivino and Harrison to the extent they require

more than this.

III.

¶29 Because the circumstances presented here may recur, we 

delineate best practices for trial judges and defense counsel when 

confronted with a similar situation.

¶30 At the outset, there has been some confusion regarding 

whether a defendant must object to an error during his or her sentencing 

phase to preserve the objection on appeal. This confusion largely traces its 

origins to State v. Vermuele, where the court of appeals rejected “a 

requirement that counsel interrupt” a sentencing proceeding “simply to 

preserve the appellate record.” 226 Ariz. 399, 402 ¶ 8 (App. 2011). We 

disagree with Vermuele’s admonition. A defendant should always object in 
STATE V.PEREZ-GUTIERREZ

Opinion of the Court

11

a timely manner to any perceived error—including violations of 

§ 13-711(A). This will afford the trial court an opportunity to correct any 

error and avoid an issue on appeal. We disapprove of any statement in

Vermuele suggesting otherwise.

¶31 We do not, of course, suggest that counsel should

inappropriately interrupt the court during sentencing to preserve an error. 

But there is generally an opportunity to be heard at some point in the 

proceeding where a timely objection can be interposed. We also encourage 

trial judges to give the parties a final opportunity to be heard on the record

before the hearing concludes.

¶32 Finally, if counsel does not object to a § 13-711(A) violation at 

sentencing, he or she may seek a remedy directly from the trial court. 

Arizona Rule of Criminal Procedure 24.3(a) allows the court to “correct any 

unlawful sentence or one imposed in an unlawful manner.” This rule 

would allow the sentencing court to correct a § 13-711(A) violation prior to 

appellate review. We therefore encourage counsel to challenge 

non-compliance with § 13-711(A) with a Rule 24.3(a) motion if they fail to 

object at sentencing.

CONCLUSION

¶33 For the foregoing reasons, we (1) vacate the court of appeals’ 

opinion; (2) remand for that court to suspend this appeal and revest 

jurisdiction in the trial court for not more than fourteen days from the filing 

date of this Opinion for the limited purpose of stating its sentencing reasons 

on the record; (3) order the court of appeals to allow Perez-Gutierrez 

twenty-one days from the day the trial court complies with § 13-711(A) to 

amend his appeal and brief any alleged error revealed by the trial court’s 

reasons for imposing consecutive sentences; and (4) order the court of 

appeals to allow the State no more than seven days from the day 

Perez-Gutierrez files an amended appeal to respond.