784 P.2d 259 (Ariz. 1989), CR-88-0307, State v. Draper

Docket Nº:CR-88-0307-PR.
Citation:784 P.2d 259, 162 Ariz. 433
Opinion Judge:[10] Corcoran
Party Name:STATE of Arizona, Respondent, v. Martin Hale DRAPER, Petitioner.
Attorney:[7] Richard M. Romley, Maricopa County Atty. by H. Allen Gerhardt, Deputy County Atty., Phoenix, for respondent. [8] John C. Williams, Prescott, for petitioner.
Case Date:December 06, 1989
Court:Supreme Court of Arizona

Page 259

784 P.2d 259 (Ariz. 1989)

162 Ariz. 433

STATE of Arizona, Respondent,


Martin Hale DRAPER, Petitioner.

No. CR-88-0307-PR.

Supreme Court of Arizona.

December 6, 1989

Page 260

In Banc.

Page 261

[162 Ariz. 435] Richard M. Romley, Maricopa County Atty. by H. Allen Gerhardt, Deputy County Atty., Phoenix, for respondent.

John C. Williams, Prescott, for petitioner.


CORCORAN, Justice.

We granted the state's petition for review to consider whether a criminal defendant entering an Alford plea of guilty can voluntarily and intelligently forego the right to interview the victim as part of a plea agreement with the state. We hold that, under certain circumstances, a defendant can permissibly enter a plea agreement on the condition that defendant not interview the victim. We decline to adopt a per se rule prohibiting such a condition. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 12-120.24.


Petitioner Martin Hale Draper (defendant) pleaded guilty, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to attempted child molestation, and was sentenced to 15 years of imprisonment. Pursuant to rule 32, Arizona Rules of Criminal Procedure, defendant filed a petition for post-conviction relief, alleging that the state's offer of a plea agreement was based on the impermissible condition that neither he nor his attorney interview the victim. Defendant argued that this condition violated his right to confront the witnesses against him, as guaranteed by the sixth amendment to the United States Constitution and art. 2, § 24 of the Arizona Constitution. Defendant also alleged that William B. DeMars, Jr., the deputy county attorney, insisted on no written record of this term of the plea agreement. An affidavit from defendant's trial attorney, Phillip G. Noland, a deputy public defender who participated in the plea agreement and the secrecy condition, supported these allegations, which were not contested by the state. The trial judge, who had sentenced defendant but had not presided at the change of plea hearing, summarily dismissed the petition without an evidentiary hearing and denied defendant's later motion for rehearing.

Defendant then petitioned the court of appeals for review of the trial court's action. See rule 32.9(c). The court accepted review and set aside the plea on several bases.

First, the court of appeals held that "the right to due process of law, the right to effective assistance of counsel, and public policy generally, forbid the prosecution from requiring, as a condition of a plea agreement, that a defendant forego his right to interview witnesses before deciding whether to accept a plea agreement." State v. Draper, 158 Ariz. 315, 316, 762 P.2d 602, 603 (App.1988). Second, the court of appeals held that both counsel improperly withheld knowledge of this condition from the court when the plea was entered. Draper, 158 Ariz. at 316, 762 P.2d at 603. The court of appeals remanded with directions to vacate defendant's guilty plea and sentencing and to allow the state to reinstate the original charges against defendant. The state petitioned this court for review of that decision.


The court of appeals adopted a per se prohibition against any plea agreement including the condition that a defendant not interview the victim prior to entry of a guilty plea. Although the court acknowledged that it could not cite any authority directly on point, it reasoned:

Our decision is based on our belief that to forbid a defendant the right to attempt to interview witnesses undermines the adversary system and threatens the

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[162 Ariz. 436] foundation of our system of justice. Such a condition violates the right to due process of law as guaranteed by the Fifth Amendment to the Constitution of the United States and article 2 § 24 of the Arizona Constitution, and the right to the effective assistance of counsel as guaranteed by the Sixth Amendment to the Constitution of the United States and article 2 § 24 of the Arizona Constitution. Even if the condition were not violative of these constitutional rights, it nonetheless is against public policy.

Draper, 158 Ariz. at 317, 762 P.2d at 604. We decline to adopt this broad prohibition under all circumstances, and address each of these grounds in an effort to delineate when a promise not to interview a victim permissibly could be made as part of a written plea agreement disclosed to the court.

  1. Due Process of Law

    As the court of appeals noted, due process requires that a defendant be able to assess intelligently "the numerous factors which bear upon his choice of whether to formally admit his guilt or to put the state to its proof." Draper, 158 Ariz. at 317, 762 P.2d at 604, quoting United States ex rel. Healey v. Cannon, 553 F.2d 1052, 1056 (7th Cir.1977).

    An Alford guilty plea is constitutionally permissible if the trial court finds substantial evidence of guilt, even if a defendant maintains that he did not commit the crime. Alford, 400 U.S. at 36-37, 91 S.Ct. at 167, 27 L.Ed.2d at 171. Alford pleaded guilty to a lesser charge after weighing the state's circumstantial evidence and the potential threat of a death penalty if convicted on the greater charge. The Supreme Court upheld the plea "[i]n view of the strong factual basis for the plea demonstrated by the State and Alford's clearly expressed desire to enter it despite his professed belief in his innocence." Alford, 400 U.S. at 38, 91 S.Ct. at 168, 27 L.Ed.2d at 172.

    Thus, in determining the validity of any Alford plea, we examine two factors. First, the state's factual basis must show substantial evidence that defendant committed the crime; second, the record must reflect that defendant made a voluntary, knowing, and intelligent decision to enter a guilty plea although he maintained his innocence.

    Here, the first factor is met. The state properly established a complete factual basis, containing every element of the crime, in its recitation to the trial court of what the state's evidence would show if the case had proceeded to trial. The change of plea transcript indicates the following factual basis:

    THE COURT: I assume that since this is an Alford plea that you do not agree that you have done what is charged here and that we therefore must have an independent basis, factual basis established.

    MR. DeMARS: Yes, Your Honor. I believe that Mr. Draper was severely intoxicated at the time he was arrested ... and that is the reason that we're having an Alford plea. The offense occurred on March 2nd, 1986 at approximately 3:15 a.m. ... [at] St. Joseph's Hospital.

    At that location, [the victim, a nine-year-old girl] ... was in the hospital for an operation and she was recovering from that operation. She was in her hospital room. At approximately 3:15 she was awakened by the defendant and she felt the defendant fondling her private parts, her vagina, her genitals, with his hand. And this was the information that she gave Officer Mich of the City of Phoenix Police Department. She was also interviewed by Sergeant Kiler of the City of Phoenix Police Department. She is an officer. And ... it was also ascertained in conversations that she had with the victim, ... that the man sat down beside her bed and touched her...

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