IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

ARMANDO D. RODRIGUEZGONZALES; and WILLIAM RALPH

HIEBER

Appellants.

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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 Howard Fell, Judge Pro Tempore

DISMISSED

Terry Goddard, Arizona Attorney 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 for Appellants

E S P I N O S A, Chief Judge.
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¶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 that 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 Following a mistrial on multiple 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 partially aggravated prison term of twelve years enhanced by his prior

federal conviction for illegal reentry. In his Rule 32 petition, Rodriguez-Gonzalez 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 was subsequently sentenced to a presumptive, 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 which was an aggravated, five-year term on the aggravated 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 whether 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 decision filed June 4, 2002). The trial court

subsequently resentenced Hieber to a presumptive 3.5-year prison term for aggravated assault.

This appeal followed.

Subject Matter Jurisdiction

¶4 Appellants 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 appropriate because they are challenging sentences imposed

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

§ 13-4033(A)(2) or (A)(3). Under those provisions, a defendant may 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 on the grounds that it

is illegal or excessive.” § 13-4033(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 admission to a probation 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, 344, 935 P.2d 920, 922 (App. 1996); see also Ariz. R.

Crim. P. 17.1(e) (“By pleading guilty . . . in a noncapital case, a defendant waives the right 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 orders merely placed appellants in the position in

which they would have been had they been sentenced 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. Pyeatt, 135 Ariz. 141, 143, 659 P.2d

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

appellants are seeking direct review of a sentence entered pursuant to a plea agreement,

something this court has no jurisdiction to do. § 13-4033(B); Jimenez.

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

in which a defendant had pled guilty, 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 of subject matter jurisdiction, concluding that the court’s denial of the

defendant’s motion to modify the terms of his probation was not 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