David C. Shinn v. Az boec/freeman

                                  IN THE

 SUPREME COURT OF THE STATE OF ARIZONA

                             DAVID C. SHINN,
                             Plaintiff/Appellant,

                                      v.

                ARIZONA BOARD OF EXECUTIVE CLEMENCY,
                          Defendant/Appellee.


                            NEVADA FREEMAN,
                           Real Party in Interest.


                           No. CV-21-0275-PR
                         Filed December 21, 2022


           Appeal from the Superior Court in Maricopa County
               The Honorable Randall H. Warner, Judge
                          No. CV2020-007052
                    REVERSED AND REMANDED

      Memorandum Decision of the Court of Appeals, Division One
                      No. 1 CA-CV 20-0617
                        Filed Oct. 19, 2021
                            VACATED



COUNSEL:

Daniel P. Struck, Nicholas D. Acedo (argued), Jacob B. Lee, Struck Love
Bojanowski & Acedo, PLC, Chandler, Attorneys for David C. Shinn

Mark Brnovich, Arizona Attorney General, Dena Benjamin, Assistant
Attorney General, Phoenix, Attorneys for Arizona Board of Executive
Clemency

Lindsay Ann Herf, Katherine Puzauskas, Karen Singer Smith (argued),
Arizona Justice Project, Phoenix; and Michael L. Piccarreta, Piccarreta Davis
Keenan Fidel PC, Tucson, Attorneys for Nevada Freeman

Howard R. Cabot, Austin C. Yost, Perkins Coie LLP, Phoenix; Noel Fidel,
Law Office of Noel Fidel, Phoenix; and Randal McDonald, Arizona Justice
Project, Phoenix, Attorneys for Amicus Curiae Everett Berry

Timothy J. Eckstein, Travis Hunt, Osborn Maledon PA, Phoenix, Attorneys
for Amicus Curiae Rudolph Turner

Colleen Clase, Arizona Voice for Crime Victims, Phoenix, Attorney for
Amicus Curiae Arizona Voice for Crime Victims

Timothy J. Myers, Civil Litigation Clinic, Public Interest Law Firm, Phoenix,
Attorney for Amici Curiae Marcia Freeman and Carrie Davis



JUSTICE LOPEZ authored the Opinion of the Court, in which VICE CHIEF
JUSTICE TIMMER and JUSTICES BOLICK, BEENE, MONTGOMERY,
KING, and PELANDER (RETIRED) * joined.


JUSTICE LOPEZ, Opinion of the Court:

¶1             We consider whether a trial court’s nunc pro tunc order
modifying a criminal sentence for first degree murder—issued almost thirty
years after the sentence was imposed and in the absence of any clerical
mistake or error in the record—is subject to collateral attack. In addressing
this issue, we delineate courts’ authority to enter orders or judgments nunc
pro tunc and also clarify this Court’s jurisprudence on the voidability of
judgments. We hold that courts lack authority to enter a nunc pro tunc
order absent clerical error or mistake in the record, rendering such an order
void and subject to collateral attack.

                             BACKGROUND

¶2        From 1973 to 1984, Arizona’s sentencing statute for first
degree murder provided that “[a] person guilty of first degree

*     Chief Justice Robert Brutinel has recused himself from this case.
Pursuant to article 6, section 3 of the Arizona Constitution, Justice John
Pelander (Ret.) of the Arizona Supreme Court was designated to sit in this
matter.

                                     2
murder . . . shall suffer death or imprisonment in the custody of the
department of corrections for life, without the possibility of parole until the
completion of the service of twenty-five years . . . .” A.R.S. § 13-703(A)
(1984) (now codified as A.R.S. § 13-751). In 1985, the legislature amended
the sentencing statute, eliminating the word “parole” and replacing it with
the phrase “without possibility of release on any basis.” A.R.S. § 13-703(A)
(1985). In 1993, the legislature further amended § 13-703(A), adding a
“natural life” sentence as another sentencing option. See A.R.S. § 13-703(A)
(1993). In that same year, the legislature amended A.R.S. § 41-1604.09 to
eliminate parole for all felony offenses committed by adult offenders on or
after January 1, 1994. See A.R.S. § 41-1604.09 (1993).

¶3             These amendments effectively limited the sentencing options
for an adult defendant convicted of first degree murder committed on or
after January 1, 1994, to (1) death; (2) natural life; or (3) life without the
possibility of release until either the completion of twenty-five or thirty-five
years, depending on the age of the murder victim. See § 41-1604.09 (1993);
§ 13-703(A) (1993). Thus, a defendant could only be “released” through an
executive pardon or commutation of sentence. § 41-1604.09 (1993); § 13-
703(A) (1993).

¶4            On October 7, 1994, a jury convicted Nevada Freeman of first
degree murder committed on June 16, 1994. Judge John Kelly subsequently
sentenced Freeman to “[a] sentence of 25 calendar years without the
possibility of release until those years have been served.” Freeman’s
sentencing order reflected the trial court’s oral pronouncement, providing
that the sentence was “life, without the possibility of release before 25
calendar years have been served.”

¶5            On May 7, 2019, the Arizona Department of Corrections
Rehabilitation & Reentry (“ADCRR”) mistakenly certified Freeman as
parole eligible. On July 30, 2019, the Arizona Board of Executive Clemency
(the “Board”) voted unanimously to grant Freeman parole on house arrest.
On October 8, 2019, before Freeman was due to be released, ADCRR
discovered its error, rescinded its parole certification, and requested that
the Board rescind its order. The Board held a rescission hearing on
October 23, 2019, and took the matter under advisement pending this
Court’s decision in Chaparro v. Shinn, 

 (2020). 1

1In Chaparro, we held that we lacked subject matter jurisdiction to correct
an illegally lenient sentence that improperly granted parole eligibility
because the State’s failure to appeal the sentence rendered it final. 248 Ariz.
at 139–40 ¶¶ 1–2, 143 ¶¶ 22–23.
                                       3
¶6           After we issued the Chaparro opinion, the Board held a second
rescission hearing on May 12, 2020. There, ADCRR argued it had
erroneously certified Freeman as parole eligible and requested that the
Board rescind its grant of parole. Freeman presented a letter from Judge
Kelly (since retired), dated April 29, 2020, which stated that he had
“inten[ded] that Mr. Freeman be eligible for all avenues of release,
including parole, after twenty-five years,” not just “through the executive
function of commutation of sentence.” Freeman also submitted a letter
from the Pima County Attorney’s Office, dated April 4, 2020, which
surmised that the original prosecutor in Freeman’s case (now deceased),
likely intended that Freeman would be parole eligible. The Board
ultimately denied ADCRR’s request to rescind Freeman’s parole. Despite
the Board’s decision, ADCRR continued to detain Freeman.

¶7            On June 18, 2020, ADCRR Director David C. Shinn filed a
verified complaint for declaratory and special action relief in the Maricopa
County Superior Court, seeking a declaration that the Board lacked
authority to grant Freeman parole because neither his sentence nor the law
authorized it. In response, Freeman raised various counterclaims and
moved for a preliminary injunction, requesting immediate reinstatement of
his release order. On August 14, 2020, Judge Randall H. Warner denied
Freeman’s motion for a preliminary injunction, ruling that Freeman was
unlikely to prevail on the merits because his sentencing order did not
authorize parole.

¶8             On September 3, 2020, Freeman, through counsel, and the
State of Arizona, through the Pima County Attorney’s Office, entered into
a stipulation filed in the Pima County Superior Court regarding Freeman’s
sentence. The stipulation stated that at the time of Freeman’s sentencing in
1994, “all Parties involved—Judge Kelly, the State, and Mr. Freeman—
believed and intended that after twenty-five years in prison, Mr. Freeman
would be eligible for parole, and, if granted parole by [the Board], [] would
be released on parole.” Thus, the parties requested that Freeman’s
“sentencing order be corrected to include the word ‘parole’ as a form of
release as intended by the Sentencing Court.” The State also stipulated that
it would not appeal the amended sentencing order. That same day, Judge
Deborah Bernini entered a nunc pro tunc order pursuant to Rule 24.4 of the
Arizona Rules of Criminal Procedure amending Freeman’s criminal
sentence, effective on the date of the original sentencing, to: “Life without
the Possibility of Parole and any other type of release, before twenty-five
calendar years have been served.”


                                     4
¶9             On September 23, 2020, Freeman renewed his claim for
injunctive relief in his case before Judge Warner, arguing that his
sentence—as amended by the nunc pro tunc order—clearly conferred
parole eligibility. On November 4, 2020, Judge Warner granted Freeman’s
renewed motion, finding that he was likely to prevail on the merits because
his sentence, as altered by the nunc pro tunc order, granted parole
eligibility. Judge Warner reasoned that Freeman’s modified sentence was,
like the one in Chaparro, illegally lenient but final because the State did not
appeal the nunc pro tunc order. On November 19, 2020, Judge Warner
ordered ADCRR to release Freeman on parole. On December 8, 2020,
ADCRR released Freeman. Shinn appealed the grant of preliminary
injunction.

¶10             The court of appeals affirmed, holding that Judge Warner did
not abuse his discretion by relying upon Chaparro to determine that
Freeman’s sentence, as modified by the nunc pro tunc order, conferred
parole eligibility. Shinn v. Arizona Board of Executive Clemency, 

, at *3 ¶¶ 13–15 (Ariz. App. Oct. 19, 2021) (mem. decision). The
court concluded that under Chaparro, Freeman’s modified sentence, even if
illegal, was no longer appealable and was, therefore, illegally lenient but
final. Id. ¶ 15. The court, relying primarily on State v. Johnson, 

(1976), also held that the nunc pro tunc order was procedurally proper
because it modified Freeman’s sentence to “accurately reflect[] the sentence
[Judge Kelly] believed he imposed” in 1994. Id. ¶ 13.

¶11          We granted review to consider the scope of a court’s nunc
pro tunc authority and the voidability of judgments, recurring issues of
statewide importance. We have jurisdiction under article 6, section 5(3) of
the Arizona Constitution.

                                 DISCUSSION

¶12           The task before us is to resolve competing views on the scope
of a court’s nunc pro tunc authority to alter a judgment or order and to
clarify our courts’ jurisprudence on the jurisdictional significance of our
post-trial motion procedural rules.

¶13           We review the trial court’s decision to grant a preliminary
injunction for an abuse of discretion. Valley Med. Specialists v. Farber,

, 366 ¶ 9 (1999). “An error of law constitutes an abuse of
discretion,” State v. Bernstein, 

, 228 ¶ 9 (2015), as does an order
unsupported by the record, Boyle v. Boyle, 

, 65 ¶ 8 (App. 2012).


                                       5
¶14           To grant a preliminary injunction the trial court must find
(1) a strong likelihood of success on the merits; (2) a possibility of
irreparable injury to the requesting party irremediable without relief;
(3) the balance of hardships favors the requesting party; and (4) public
policy favors the injunction. Fann v. State, 

, 432 ¶ 16 (2021).

¶15            Here, Shinn contends that the nunc pro tunc order is void and
subject to collateral attack because it exceeded the scope of Rule 24.4 by
impermissibly modifying Freeman’s sentence on the basis of a judicial,
rather than a clerical, error. Consequently, Shinn maintains that Judge
Warner erred in granting Freeman’s preliminary injunction because it was
premised upon the void nunc pro tunc order. See Fann, 

 ¶ 15
(explaining that a trial court commits error by applying “incorrect
substantive law” to the criteria for granting an injunction (citation
omitted)). On the other hand, Freeman argues that the nunc pro tunc order
merely corrected his criminal sentence to reflect Judge Kelly’s intent to
impose a parole eligible sentence. Therefore, even if the order was
erroneous or improper, it was voidable rather than void and, thus, not
subject to collateral attack.

                                          I.

¶16          We first address whether Judge Bernini’s order was a proper
nunc pro tunc order.

                                       A.

¶17            An order entered nunc pro tunc (Latin for “now for then”) is
one “[h]aving retroactive legal effect through a court’s inherent power.”
Nunc Pro Tunc, Black’s Law Dictionary (11th ed. 2019). This power “is a
common law power derived from a court’s jurisdiction over its records.”
Pirtle v. Cook, 

 (Mo. 1997) (citing 3 William Blackstone,
Commentaries on the Laws of England * 407 (1771)). The scope of this inherent
power is ministerial and, in its exercise, a “court may not do more than
make its records correspond to the actual facts; it cannot under the guise of
amending a minute entry correct any judicial error it may have made, or
cause an order or judgment that was never in fact made to be placed [on
the] record.” Rae v. Brunswick Tire Corp., 

 (1935). Thus, the
proper purpose of an order entered nunc pro tunc “is to record now for then
an order actually made or a judgment actually rendered which through some
oversight or inadvertence was never entered upon the records of the court
by the clerk or which was incorrectly entered.” Johnson, 

(emphasis added) (quoting Black v. Indus. Comm’n, 

 (1957),

                                      6
overruled in part by Hash’s Est. v. Henderson, 

 (1973)); see also Am.
Sur. Co. of N.Y. v. Mosher, 

 (1936) (The “office [of a nunc pro
tunc order] is not to supply omitted action by the court, but to furnish the
record of an action really had, where its recording was omitted through
inadvertence or mistake.”); State v. Pyeatt, 

 (App. 1982)
(“The object of [a nunc pro tunc] entry is to correct the record to make it
speak the truth and not to supply judicial action.”).

¶18            Rule 24.4, as the modern procedural vehicle of the common
law inherent power to enter orders or judgments nunc pro tunc, governs
the power’s exercise. The rule provides that a “court on its own or on a
party’s motion may, at any time, correct clerical errors, omissions, and
oversights in the record.” (Emphasis added.) Rule 24.4’s text expressly
limits its application to clerical mistakes or errors, and it mirrors the
Arizona jurisprudential rule—orders or judgments entered nunc pro tunc
may not embody judicial action. See State v. Serrano, 

, 493 ¶ 6
(App. 2014) (concluding that Rule 24.4 does not permit the court “to supply
judicial action”).

                                            B.

¶19           Having established the narrow parameters of a court’s nunc
pro tunc authority, we now turn to the facts of this case. Judge Bernini ruled
that Rule 24.4 authorized the entry of the nunc pro tunc order modifying
Freeman’s criminal sentence. Thus, the propriety of the order turns on
whether it merely corrected a clerical error or remedied a judicial error.

¶20              The record establishes that the nunc pro tunc order essentially
remedied Judge Kelly’s purported judicial error—his misapprehension of
the law at the time of sentencing that the term “release,” as used in
Freeman’s sentence, included the possibility of parole. Arguably, Judge
Kelly’s misapprehension of the legal meaning of “release” was not a
mistake at all because he consistently used the term throughout the
sentencing and, at the time, Freeman was ineligible for parole as a matter
of law. See § 13-703(A) (1993). In any event, even if the court’s
misapprehension regarding the legal effect of the term “release” could be
construed as judicial error, it is distinguishable from a clerical error, which
would appear in the recording, rather than the rendering, of the judgment.
See, e.g., State v. Hanson, 

, 304 (App. 1983) (“A clerical mistake
involves a failure to record accurately a statement made or action taken by
the court or one of the parties.” (quoting 8A Moore’s Federal Practice
¶ 36.02 at 36–2)). Here, the 1994 criminal case record reveals no clerical
errors concerning Freeman’s sentence. Indeed, Freeman’s sentencing order

                                        7
mirrored the court’s oral pronouncement at sentencing. There, the court
pronounced the sentence as “25 calendar years without the possibility of
release until those years have been served,” and the sentencing order
provided that Freeman serve “life, without the possibility of release before
25 calendar years have been served.” Moreover, there is no evidence in the
record that evinced Judge Kelly’s intent to impose a parole-eligible
sentence. Thus, absent contemporaneous evidence that Judge Kelly meant
to sentence Freeman to life, without the possibility of parole before
25 calendar years had been served, and because the sentencing order
mirrored the court’s oral pronouncement, there was no clerical error.

¶21            Freeman, like the court of appeals, relies on Johnson for an
alternative rule—one that allows for the correction of clerical and judicial
errors if they reflect the “intentions” of the parties or the court at the time
the original judgment or order issued. See 

. In Johnson, we
observed:

       The purpose of a nunc pro tunc order is to make the record reflect
       the intention of the parties or the court at the time the record was
       made: “We have consistently held that the function of an order
       or judgment [n]unc pro tunc is to make the record speak the
       truth and that such power is inherent in the court. We have
       made it clear that the court cannot do more than to make the
       record correspond with the actual facts. It cannot cause an
       order or judgment that was never previously made or
       rendered to be placed upon the record of the court. It is to
       record now for then an order actually made or a judgment
       actually rendered which through some oversight or
       inadvertence was never entered upon the records of the court
       by the clerk or which was incorrectly entered.”

 (quoting Black, 

) (emphasis added).

¶22            Johnson affords Freeman no relief. In context, the italicized
sentence Freeman invokes for his “intentions” test was dicta—a mere
incidental phrase that the following passage contradicts. The remainder of
the paragraph clarifies that a nunc pro tunc order is confined to correcting
clerical errors and does not extend to the parties’ unexpressed intentions.
Moreover, the nunc pro tunc order that we ultimately affirmed in Johnson
concerned a scrivener’s error by omission evident in the record, not a
judicial error. 

 There, the state moved to dismiss a criminal complaint
due to a jurisdictional error, but erroneously failed to include the words
“without prejudice” in the proposed order, which the court signed. 

                                        8
at 508–09. The court later issued a nunc pro tunc order clarifying that
dismissal of the complaint was without prejudice. 

 On appeal, this Court
held that the nunc pro tunc order was proper because the record reflected
that both the court and the prosecution intended that the dismissal be
without prejudice as the “prosecutor clearly intended to refile and the court
understood this to be the case.” 

 Johnson does not supplant Rule 24.4’s
unambiguous text cabining a court’s nunc pro tunc authority to correcting
clerical error.

¶23           We conclude that the trial court exceeded its authority under
Rule 24.4 because it did not remedy a clerical error, omission, or oversight
in the record. See Rae, 45 Ariz. at 142–43; Ariz. R. Crim. P. 24.4.

                                         II.

¶24           We next consider whether the improper nunc pro tunc order
is void or voidable.

                                         A.

¶25           Confusion between void and voidable orders or judgments
has marked our jurisprudence for decades. See, e.g., Cockerham v. Zikratch,

, 234–35 (1980); Collins v. Superior Court, 

, 392–93
(1936). We have surmised this lack of clarity “may stem from courts’ often
loose usage of the word ‘void.’” Cockerham, 

. This imprecise
usage has led Arizona courts to occasionally “conflate[]” jurisdictional
errors with other legal errors, compounding the existing confusion in this
area of law. State v. Espinoza, 

, 425 ¶ 19 (App. 2012). We
endeavor here to clarify the distinctions between void and voidable orders
or judgments.

¶26            The fundamental difference between void and voidable
orders or judgments is their legal effect and susceptibility to challenge. A
void order or judgment has no legal effect and “may be set aside or vacated
at any time,” Rico Consol. Mining Co. v. Rico Expl. Co., 

 (1922)
(emphasis added), rendering it subject to “collateral attack,” Tube City
Mining & Milling Co. v. Otterson, 

, 310–11 (1914). Voidable
orders or judgments, in contrast, are “binding and enforceable,” enjoy “all
[of] the ordinary attributes of a valid [order or] judgment until [they are]
reversed or vacated,” State v. Bryant, 

, 517 ¶ 13 (App. 2008)
(quoting State v. Cramer, 

, 153 ¶ 16 (App. 1998)), and may “only
be modified on [direct] appeal or by [a] proper and timely post-judgment
motion,” Chaparro, 

 ¶ 22 (quoting Bryant, 219 Ariz. at 517–18

                                       9
¶¶ 13, 15). See also Ariz. R. Crim. P. 24. In sum, unlike void orders or
judgments, voidable ones are not subject to “collateral attack.” See Walker
v. Davies, 

 (1976).

¶27            The test for whether an order or judgment is void—and
subject to collateral attack—was established nearly a century ago in
Arizona. See, e.g., Lisitzky v. Brady, 

, 342–43 (1931); Hill v. Favour,

, 573–74 (1938); Hershey v. Banta, 

 (1940); Hughes
v. Indus. Comm’n, 

 (1949); Walker, 

; In re.
Adoption of Hadrath, 

 (1979). Hughes provides the
analytical framework our courts use to determine voidness in Arizona. In
Hughes, we reiterated that “a judgment or order is void upon its face and,”
therefore, “subject to attack at any time,” if the court entering the order or
judgment fails to satisfy “three elements.” 

. “These elements
are (1) jurisdiction of the subject matter of the case, (2) of the persons
involved in the litigation, and (3) to render the particular judgment or order
entered.” 

 If a court fails to satisfy any one of these three elements, the
order or judgment is void and subject to collateral attack. 

 However, if
a court satisfies these elements, even if an order or judgment is erroneous,
it is merely voidable and immune from collateral attack. See Cockerham,

 (“It is important to remember that, at least with respect to
jurisdiction, ‘void’ is not synonymous with ‘wrong’ or ‘erroneous.’”).

                                        B.

¶28          We now apply the Hughes test to determine whether the nunc
pro tunc order is void and, thus, subject to collateral attack.

¶29           Here, the parties do not contest the first two elements of the
Hughes test concerning the nunc pro tunc order; the trial court had subject
matter jurisdiction over Freeman’s criminal case, see State v. Maldonado,

, 311 ¶ 14 (2010) and Ariz. Const. art. 6, § 14, and personal
jurisdiction over Freeman and the State. Consequently, Shinn’s challenge
to the order necessarily centers on the third element of the Hughes test.

¶30            Hughes’ third element—the jurisdiction “to render the
particular judgment or order entered”—is the least examined in our
jurisprudence. 

. In fact, two cases seemingly imply that the
third jurisdictional element has fallen out of favor by omitting reference to
it while suggesting that void judgments result only from lack of subject
matter or personal jurisdiction. See Cockerham, 

 (“Void
judgments are those rendered by a court which lacked jurisdiction, either
of the subject matter or the parties,” while “[e]rroneous judgments,” on the

                                        10
other hand, “are those which have been issued by a court with jurisdiction
but which [were] subject to reversal on timely direct appeal.”); Bryant,

 ¶ 13. Nearly three decades after Cockerham, the court of
appeals in Bryant recited Hughes’ third element in the definition of a void
order but reinforced the notion that a court’s order may be void only if it
lacks jurisdiction over the subject matter or parties. See 

 ¶ 13
(“An order is voidable or erroneous . . . when the trial court has jurisdiction
over the subject matter and parties but the order ‘was subject to reversal on
timely direct appeal.’” (quoting Cockerham, 

)). Freeman
seizes on these cases to argue that the nunc pro tunc order modifying his
sentence, even if erroneous, is merely voidable because the court had
personal and subject matter jurisdiction. We disagree.

¶31             Cockerham did not jettison Hughes’ third element from the
voidness analysis. First, although Cockerham involved a voidness challenge
to the validity of a default judgment, the parties never raised, nor did the
decision implicate, Hughes’ third element. See 

. Second,
Cockerham cites to Tube City and cases that rely on Tube City, which itself
sets forth the three voidness elements later clarified in Hughes. See 

.
We will not assume that Cockerham overruled this Court’s longstanding
voidness jurisprudence by implication. Pace v. Pace, 

(App. 1981) (“[A] well-established and important legal principle will not be
deemed to have been overruled by implication in subsequent decisions . . .
unless the principle is directly involved and the inference is clear and
impelling.” (quoting 20 Am. Jur. 2d Courts § 232 (1965))).

¶32            The State argues that Hughes’ third element establishes that
Rule 24—the procedural rule governing post-trial motions—carries
jurisdictional consequence. We agree. Indeed, our jurisprudence proves
the point. See State v. Hill, 

 (1958) (holding that an order
granting a motion for a new trial “was void for lack of jurisdiction” after
being entered outside of the time limit prescribed by the Arizona Rules of
Criminal Procedure); State v. Guthrie, 

 (1974) (“[W]e have
held in the past the superior court has no jurisdiction to modify its original
judgment” after it has been affirmed on appeal); State v. Falkner, 

 (1975) (holding that “[t]he trial court exceeded its jurisdiction in
modifying the sentence imposed in the absence of such facts that would
satisfy the requirements of Rule 24.3.”). In fact, we explicitly established
this principle in Falkner after explaining that superior courts did not “have
inherent power to modify a sentence.” Falkner, 

.
Specifically, we held that “the trial court’s jurisdiction in post-trial motions
is limited to that set out in the Rules, and an exercise of that jurisdiction is


                                       11
permissible only upon the grounds specified therein.”          

 (emphasis
added).

¶33           Freeman challenges the notion that Rule 24 embodies
jurisdictional import, relying on Maldonado for the proposition that a
violation of a procedural rule merely constitutes a “reversible error” but
does not divest a court of its jurisdiction. See Maldonado, 

¶ 15. We are unpersuaded. Maldonado is correct—a court does not forfeit
subject matter jurisdiction by violating a procedural rule because subject
matter jurisdiction is conferred exclusively by the Arizona Constitution or
the Arizona Revised Statutes. Id. ¶ 14. But Maldonado involved a challenge
to subject matter jurisdiction, not a court’s “jurisdiction” to enter an order
modifying a sentence. Id. ¶¶ 11, 13. Because this case involves a court’s
authority to enter such an order rather than its subject matter jurisdiction,
Maldonado is inapposite.

¶34            Here, the trial court invoked Rule 24.4 to enter the nunc pro
tunc order modifying Freeman’s criminal sentence, but the court exceeded
its authority under the rule because it did not correct a clerical error.
Consequently, under Hughes’ third element, the order is void and subject to
collateral attack.

                                     C.

¶35            To eliminate confusion between subject matter and personal
jurisdiction—Hughes’ first and second elements—and a court’s power to
issue an order or judgment—Hughes’ third element—we urge courts to
describe the third element as a court’s authority to render a particular order
or judgment rather than its jurisdiction to do so. See Marvin Johnson, P.C. v.
Myers, 

 (1995) (acknowledging “imprecise use of the word
‘jurisdiction’” in cases involving non-jurisdictional errors). Through this
lens, it is apparent that Hill, Gutherie, and Falkner did not confuse courts’
authority to act under our procedural rules with subject matter jurisdiction,
but rather resolved their controversies under Hughes’ third element—
courts’ authority to render a particular order or judgment.


                                     D.

¶36          To further synthesize our jurisprudence, we note that our
holding is consistent with Black, our first case addressing “whether a nunc
pro tunc judgment may be attacked collaterally.” Black, 

. In
Black, we cautioned against the misuse of courts’ nunc pro tunc authority

                                     12
and announced a two-pronged test for determining when such an order is
subject to collateral attack:

      After a careful consideration of the danger inherent in the
      improper exercise of the power of the courts to enter orders
      or judgment[s] nunc pro tunc, we have reached the conclusion
      that if such orders or judgments are to be shielded from
      collateral attack, the court when directing an entry nunc pro
      tunc must: (1) make a record such that anyone who examines
      it may determine the nature of the clerical error sought to be
      corrected; and (2) place upon the face of the judgment or
      order a finding or recital to the effect that sufficient competent
      evidence was presented to sustain the order for entry nunc pro
      tunc. Under such circumstances it should not then be subject
      to collateral attack. Unless the judgment or the record does
      show such facts, it will be subject to collateral attack. Without
      this safeguard a judgment nunc pro tunc absolutely void for
      want of jurisdiction would be clothed with the same verity as
      a valid judgment. The law should never be thus
      circumscribed.

 Thus, we established that a nunc pro tunc order may only be used to
modify clerical errors and that a court reviewing the propriety of the order
may examine the entire record, as we did here, to determine whether the
order merely remedied a true clerical error established in the record. Under
Black, Judge Bernini’s nunc pro tunc order did not accurately record what
actually happened at Freeman’s sentencing; it changed what occurred. Id.;
see also City of Phoenix v. Geyler, 

 (1985).

¶37           We also clarify that Hash’s Estate’s cursory treatment of Black
did not overrule its central holding concerning the proper scope of nunc
pro tunc orders. See 

 (“Anything in the case of [Black] which
may be inconsistent with or contrary to the foregoing opinion is hereby
overruled.”). Thus, under Black, which is wholly consistent with Hughes,
the nunc pro tunc order here is subject to collateral attack because (1) it
embodied an attempt to correct a judicial rather than a clerical error and
(2) the record does not reflect any clerical error.
                              CONCLUSION

¶38         Freeman’s original sentence was lawful, but the nunc pro tunc
order sought to supplant the legal sentence with an illegally lenient one
because the sentencing court and the parties now contend—twenty-six


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years after the sentencing hearing—that Judge Kelly intended to impose an
illegal sentence. Crucially, the trial court record is devoid of any evidence
of this unexpressed intention. We cannot countenance this use of the nunc
pro tunc authority because it is wholly inconsistent with Rule 24.4’s express
terms and purpose, as well as our jurisprudence. Because the nunc pro tunc
order is void, we hold that Judge Warner erred in relying upon it to grant
Freeman’s preliminary injunction. See Fann, 

 ¶ 15 (“An
abuse of discretion exists where the trial court clearly erred in finding the
facts or applying them to the legal criteria for granting an injunction, or if
the trial court applied the incorrect substantive law.”) (citations omitted)
(internal quotation marks omitted). Our opinion, however, does not
foreclose the trial court’s consideration of any other grounds not before this
Court that may support injunctive relief.

¶39          For the reasons set forth, we vacate the court of appeals’
decision, reverse the trial court’s order granting preliminary injunctive
relief, and remand the case to the trial court to determine whether
Freeman’s requested injunctive relief should be granted for reasons other
than the void nunc pro tunc order.




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