IN THE COURT OF APPEALS STATE OF ARI

ZONA DIVI SION

TWO

THE STATE OF

ARIZONA, Appellee,

v.ARMANDO D. RODRIGUEZGONZALES; and WILLIAM RALPH HIEBER Appellants. ) ) ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2002-0285

2 CA-CR 2002-0431 (Consolidated) DEPARTMENT B O P I N I O N

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 Att orney General By Randall M. Howe and Diane Leigh Hunt Isabel G. Garcia, Pima County Legal Defender By Joy Athena Tucson Attorneys for

Appellee

Tucson Attorneys fo r Appellan ts E S P I N O S A, Chief Judge.2

¶1 In consolidated di rect appeals,

appellants Armando Rodri gue z-Gon zalez and William Hieber challenge

their sent ences. Both had

originally been sentenced following guilty pleas but had b e en granted new sentenci ng hearings through s

uccessful post

-conviction proceedings pursuant to Rule 32, Ariz. R . Crim. P., 17 A .R.S. Appellants argue tha t this court has subject matter jurisd iction and that they

are not requir

ed to engage in furt

her Rule 32 pr oce edings to challenge t heir new sentences. For the reasons set

forth below, we disagr

ee and dismiss the appeals. Facts and Procedural Background ¶2 Followin g a mistrial on m ultiple narcotics charges, Rodriguez-Gonzal ez pled guilty to possessing her oin for sal e, a class two felony, with one prior convict

ion. The trial court sentenced him to a partia llyaggravated prison term of twelve years enhanced by his pri

or federal conviction for illegal reentry. I n his Rule 32 petition, R odriguez-G onzalez ar gued his sentence was unlawfully enhanced because there is no Arizona offense e quivalent to ill egal reentry. See A.R.S. § 13-604(N). The trial court agreed

and granted Rodriguez-Gonzal ez a new sentencing hearing. He wa s subsequ ently sentence d to a presu mptive, five- year term to be served consecuti

vely to t he term i mposed in his feder

al case, and fi

led a timely

notice of appeal. ¶3 Hieberhad pled guilty to aggravated

assault, endangerment, and misdemeanor driving while under the inf

luence of an intoxi

cant. The tria

l court sentenced hi

m to concurrent prison terms, the

longest of w hich was an aggrav ated, five-year term on the a ggravated assault charg e. This court grant ed Hieber partial

relief i n his petit

ion for review of t

he trial co

urt’ s3

summary denial of his

Rule 32 petition, finding he had ra ised colorabl e claims of wheth er his aggravated

assault sent

ence had been unlawfully aggravated by char

ges that were then pendi

ng and whether the evidence s upported the amount

of restitution imposed. State v. Hieber , No. 2 CA-CR2001-0408-PR (memorandum de cision filed Ju ne 4, 2002). The trial court subseque ntly resentenced Hieberto a presum ptive 3.5-yea r prison term fo r aggravate d assault. This appeal foll

owed. Subject Matter Jurisdict ion ¶4 Appellan ts acknowledge that defendant s who plead g uilty a re 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 propri ate becaus e they are chal lenging sentences

imposed during new sentencinghearings. A ppellants contend they have r ights of dir

ect 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 trialor from an order made af ter judgment aff

ecting the substantial

rights of t

he party,” § 13-4033(A)(2), or fr om “[a] sentence o n the grou nds that it is illegal or excessive.” § 13-403 3(A)(3). ¶5 As the state poi nts out, the pr

ovisions of § 13-4033(

A)(2) and (3) are l

imited by subsection B to c er tain defendants. That subsection states, “[i]n noncapital cases a defendant

may not appeal fr

om a judgment or sentence that is ent

ered pursuant to a

plea agreement

or an adm ission to a pro bati on violati on.” Accordingly, a ny right of a

ppeal

a ppellants have under subsection (A)(2) or (A)(3) “is restricted by subsect ion (B), whi c h precludes a direct appeal from a judgment or sent ence entered pursuant

to a plea agreement.”4

State v. J

imen ez , 188 Ar iz. 342, 34 4, 935 P .2d 920, 922 (Ap p. 1996); see also Ariz. R. Crim. P. 17.1(e) (“By p leading guilty . . . in a nonc apital case, a d efendant w aives the righ t to have the appellat

e courts revie

w the proceedings by way of direct appeal , and may seek review only by filing

a petition f

or post-convict

ion relief pursuant to Rule 32 and, if denied, a pet

ition for review.”). Here, t

he new sent encing 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 . 2 01, 204, 688 P.2d 1093, 1096 (App. 1984) (af ter sentences

vacated by appellate court and case r em anded, trial

court “was not modify ing previously

imposed sentences . . . but rathe

r was sentencing anew”); State v. Py eatt , 135 Ariz. 141, 143, 659 P.2d 1286, 1288 (A pp. 1982 ) (“An il lega l sentence is no sentence at al

l.”). Consequentl

y, the appellants are s e eking direc t review of a sentence e ntered purs uant to a ple a agreeme nt, something this court has no jurisdictio n to do. § 1 3-4033(B ); Jimenez

. ¶6 In seeking to avoid t his 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 tri

al court’s denial of a moti on to modify the conditions of probation. The cour t dismissed t

he appeal for want o f subject ma tter jurisdiction, concludin g that th e court’ s denial of t he defendant’s motion to m odify the terms o f his probatio n was no t an order af fecting his substantial

rights. The court

then stat ed, “If the trial court’s order

had actually

changed or modified the judgment or sentence originall y imposed, we assume def endant would have had the right of dir

ect appeal.” Jimenez , 188 Ariz. at 345, 935 P.2d at 923. Buthere, the resentenc ing orders were not changes or modificati

ons of the sentence s originall y imposed,5

but new orders, replaci

ng the original unl

awful orders as if they had not existed. See Thomas; Pyeatt. ¶7 We conclude we do not have appellate jurisdicti on of these con solidated appeals; they are the

refore dismi ssed.

PHILIP G. ESPINOS A, Chief Judge CONCURRING:

JOHN PELANDER, Presiding J udge

PETER J. ECKERSTROM , Judge