Buccheri, Application of

• Citation: 431 P.2d 91,6 Ariz.App. 196
• Decision Date: 04 August 1967
• Docket Number: No. 2,CA-HC,2
• Parties: Application of Angelino Paul BUCCHERI for a Writ of Habeas Corpus. 53.
• Court: Court of Appeals of Arizona

Page 91

431 P.2d 91

6 Ariz.App. 196

Application of Angelino Paul BUCCHERI for a Writ of Habeas Corpus.

No. 2 CA-HC 53.

Court of Appeals of Arizona.

Aug. 4, 1967.

Giles & Moore, by Charles M. Giles, Tucson, for petitioner.

Darrell F. Smith, Atty. Gen., James S. Tegart, Asst. Atty. Gen., Phoenix, for respondent.

MOLLOY, Judge.

The petitioner applied to this court for a writ of habeas corpus after the summary denial of a petition for habeas corpus in the superior court, Pinal County. The factual allegations of the petition filed in this court raised some doubt as to the validity of the petitioner's conviction because of the constitutional issues presented. We therefore concluded that, had a like petition been filed in the superior court, a summary denial of the petition, without a hearing, may have been erroneous.

The Supreme Court of Arizona is vested with authority to issue writs of habeas corpus and make such writs returnable before a superior court of judge thereof. Art. 6, § 5, Ariz.Const., A.R.S.; A.R.S. § 13--2003. Although the court of appeals has jurisdiction to issue writs of habeas corpus, A.R.S. § 12--120.21, subsec. A(4), there is no statute vesting this court with authority to make such writs returnable to the superior court. See State v. Sheppard, 2 Ariz.App. 242, 407 P.2d 783 (1965). As indicated in Sheppard, this court does not have proper facilities for conducting facttaking hearings. (2 Ariz.App. at 245, 407 P.2d 783.) Substance being of the essence, the appellate courts of this state authorized to grant relief by extraordinary writs are inclined to grant appropriate relief notwithstanding the writ applied for is labeled otherwise, Goodman v. State, 96 Ariz. 139, 140, 393 P.2d 148 (1964); State ex rel. Ronan v. Superior Court, 95 Ariz. 319, 390 P.2d 109 (1964). Though the petitions for habeas corpus filed contest the legality of the petitioner's detention in the state prison in Pinal county, they are in essence a collateral attack upon a judgment of conviction and sentence rendered in a criminal action in the superior court in Maricopa county. Oswald v. Martin, 70 Ariz. 392, 397, 222 P.2d 632 (1950). Accordingly, we have issued a writ of certiorari to review both the denial of the habeas corpus petition in Pinal county and the judgment and conviction in Maricopa county.

We believe we act within the scope of our authority in so doing. This is a statutory court, and there is but a 'single' court of appeals in this state, A.R.S. § 12--120, subsec. A. There is also but a 'single' superior court in this state, Art. 6, § 13, Ariz.Const. Venue has been held not to be jurisdictional. Sil-Flo Corporation v. Bowen, 98 Ariz. 77, 402 P.2d 22 (1965). We conceive that the responsibility for this case is with this division through the filing of a writ of habeas corpus invoking jurisdiction granted by A.R.S. § 12--120.21, subsec. A(1), and that the venue is appropriate because of allegations that the petitioner is legally detained in Pinal county, one of the seven counties in which appeals from the superior court are taken to this division. A.R.S. § 12--120.21, subsec. B. Though admittedly we are exploring new ground procedurally, under these particular circumstances, we reject the State's contention that we were without jurisdiction to issue a writ of certiorari as to a proceeding which occurred in the superior court sitting in Maricopa county.

An examination of the record in the Pinal county court establishes that the petition for habeas corpus filed in that court differs substantially from that filed here. The main thrust of the petition in the lower court is that the petitioner was held for twenty-three days after his arrest on a felony charge without 'arraignment' ¹ before a magistrate in violation of A.R.S. § 13--1417, ² and that this in itself invalidated the conviction, partial reliance being taken upon McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943).

It has been held in this state that a 'flagrant' (92 Ariz. at 73, 373 P.2d 583) violation of the counterpart statute, A.R.S. § 13--1418, pertaining to arrest without a warrant, for a period of 79 days, does not invalidate a conviction. State v. Maldonado, 92 Ariz. 70, 373 P.2d 583 (1962). It is understandable, therefore, that insofar as the petition below relied upon the failure to bring the accused 'without unnecessary delay' before a magistrate, the petition was denied.

However, in the lower court we also find included in the petition the following allegations, which cause us some concern:

'That such delay (delay in 'arraignment') was deliberate and purposeful, occurring for the reasons of intimidation and duress pursuant to a planned means of obtaining an induced plea of guilty * * *.

'During the period, December 29, 1965, to January 19, 1966, petitioner was subjected again to many periods of interrogation, whereat he (petitioner) was informed that other charges would be filed if he succeeded in beating the charges that had been filed, and that one way or another petitioner was going to prison this time and that the longer it took the police to nail him (petitioner) the greater the sentence would be, in the end.

'On or about 17th or 18th, petitioner who was going through this procedure for the second time, ³ thus having sufficient reason to believe that the police would one way or another finally get him convicted of some crime, agreed to plead to the crime of attempted burglary without the prior, then and only then did the interrogations and false accusations cease.'

In this court, the petitioner's pleading includes these assertions and is directed more at the contention of a coerced plea of guilty. The petition is verified and is supported by an affidavit containing factual allegations not contained in the petition below. Among these additional facts are:

(1) Direct quotations purportedly made by arresting officers which might indicate that the failure to bring the petitioner promptly before a magistrate for 'arraignment' was deliberate and intentional in order to induce a confession from the petitioner;

(2) That when the petitioner was furnished counsel at his 'arraignment' before the magistrate, he was informed by his counsel that in view of his agreement to plead guilty, it would be 'futile' to insist upon a trial;

(3) 'That Petitioner does not believe himself to be guilty of anything more than possibly being intoxicated on a public street';

(4) 'That Petitioner did not want to enter a guilty plea but did so because of fear (of a long prison term) and the intensive pressure upon him to plead guilty';

(5) 'That Petitioner in every way (except the plea) and to everyone has maintained his innocence'; and

(6) 'That he was not aware nor was he ever informed that prior to sentencing he could change his plea and that Superior Court Judges do not penalize a defendant for exercising his right to trial by jury.'

The writ of certiorari to the Maricopa county court has produced records which do not necessarily refute the petitioner's allegations, as in Application of Parham, 6 Ariz.App. 191, 431 P.2d 86 (1967), but, to the contrary, in some respects corroborate them. At the time of the acceptance of plea of guilty, there is very little to substantiate that the defendant was acknowledging his guilt as to a crime as to which he himself conceived himself guilty. The transcript reveals that the only dialogue touching upon actual guilt is the following:

'THE COURT: Mr. Buccheri, have you had a chance to discuss this with counsel?

'DEFENDANT BUCCHERI: Yes, I have.

'THE COURT: Are you aware, if you enter a plea of guilty, that this case will be assigned to a judge for imposition of sentence?

'DEFENDANT BUCCHERI: That's correct, sir.

'THE COURT: And, depending on that judge, he may give you time or he may give you probation?

'DEFENDANT BUCCHERI: That's correct.

'THE COURT: Do you wish to proceed with a plea of guilty in this cause?

'DEFENDANT BUCCHERI: I do, sir.

'THE COURT: The record may show the entry of the plea of guilty.'

The record further reveals that though the warrant for the arrest of the defendant from the felony charge of which he stands convicted was issued on December 29, 1965, it was not served until January 20, 1966, the day upon which he was brought before a magistrate. Further, the record discloses that the charge of a prior conviction was dropped at time of sentence. The petitioner's assertion that he was held continuously in custody from December 29, 1965, to January 20, 1966, is unrefuted in the record.

We are presented with the problem of whether either one or both of these petitions alleged sufficient grounds for the holding of a factual hearing to determine the validity of a plea of guilty when charges of 'fraud and duress' have been made. These petitions are collateral attacks upon a final judgment, and, as such, demand consideration only to the extent that they raise questions which render the judgment void. State v. Court of Appeals, Division Two, 101 Ariz. 166, 416 P.2d 599 (1966); Franklin v. Eyman, 3 Ariz.App. 501, 415 P.2d 899 (1966); Applications of Oppenheimer, 95 Ariz. 292, 389 P.2d 696 (1964), cert. den. 377 U.S. 948, 84 S.Ct. 1359, 12 L.Ed.2d 311 (1964).

In contemplating such an attack as this, presumptions favor the regularity and validity of the judgment rendered below. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954); McKinney v. United States, 93 U.S.App.D.C. 222, 208 F.2d 844 (1953); Twining v. United States, 321 F.2d 432 (5th Cir. 1963), cert. den. 376 U.S. 965, 84 S.Ct. 1126, 11 L.Ed.2d 982 (1964); Aiken v. United States, 191 F.Supp. 43 (D.C.1961), aff'd 296 F.2d 604 (4th Cir. 1961).

However, the presumption of regularity must yield, at least to the extent of granting a factual hearing, to verified assertions of fact not conclusively rebutted by the record which show that a plea of guilty was 'involuntary,' thus rendering the plea void. The degree...