Duran v. Superior Court In and For County of Maricopa

• Court: Arizona Court of Appeals
• Writing for the Court: KLEINSCHMIDT; GRANT, C.J., and FIDEL
• Citation: Duran v. Superior Court In and For County of Maricopa, 782 P.2d 324, 162 Ariz. 206 (Ariz. App. 1989)
• Decision Date: 27 July 1989
• Docket Number: CA-SA,No. 1,1
• Parties: Fermin DURAN, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable John J. Trombino, a judge pro tempore thereof, Respondent Judge. The STATE of Arizona, Real Party in Interest. 89-023.

Page 324

782 P.2d 324

162 Ariz. 206

Fermin DURAN, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable John J. Trombino, a judge pro tempore thereof, Respondent Judge The STATE of Arizona, Real Party in Interest.

No. 1 CA-SA 89-023.

Court of Appeals of Arizona Division 1, Department D.

July 27, 1989.

Review Denied Nov. 21, 1989.

Dean W. Trebesch, Maricopa County Public Defender by Patrick E. McGillicuddy, Deputy Public Defender, Phoenix, for petitioner.

Richard M. Romley, Maricopa County Atty. by Lisa Mari Roberts, and David R. Cole, Deputy County Attys., Phoenix, for respondent.

OPINION

KLEINSCHMIDT, Judge.

The question that this special action presents is whether the trial court abused its discretion in denying the petitioner's motion to withdraw the guilty plea that he entered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). We previously accepted jurisdiction. We now hold that the trial court did abuse its discretion, and we grant relief.

The state charged the petitioner, Fermin Duran, with five felony counts of sexual conduct with a minor and with one felony count of sexual abuse. The charges arose out of separate incidents involving two young girls. The state's evidence was comprised of the testimony of these children and of medical evidence that was consistent with their allegations.

The state offered to dismiss all charges except the felony count of sexual abuse. The petitioner's attorney recommended accepting the agreement "because the alleged victims consistently maintained their allegations." He calculated that the petitioner faced a potential sentence in excess of 100 years if he was convicted on all five counts. Under the plea agreement, the maximum sentence that the petitioner could receive was fifteen years. Faced with this choice, the petitioner elected to accept the plea agreement and pled guilty pursuant to Alford.

After the defendant entered his plea, but before he was sentenced, one of the children recanted. She stated that she had lied to the police and the doctors and that the petitioner had "done nothing" to her. The petitioner moved to withdraw his plea. On the same day that the motion to withdraw was filed, the child retracted her recantation and stated that her original allegations had been true. The other child never waivered from her accusation. The trial court denied the petitioner's motion to withdraw his plea, and this special action followed.

Rule 17.5 of the Arizona Rules of Criminal Procedure provides that a judge may, in his discretion, allow a defendant to withdraw his plea when this is necessary to correct a "manifest injustice." The Rule is to be liberally interpreted, and doubts are to be resolved in favor of allowing withdrawal of the plea. See, e.g., State v. Ellison, 111 Ariz. 167, 168, 526 P.2d 706, 707 (1974); State v. Williams, 107 Ariz. 421, 425, 489 P.2d 231, 235 (1971); State v. Wilson, 95 Ariz. 372, 373, 390 P.2d 903, 904 (1964); State v. Corvelo, 91 Ariz. 52, 54, 369 P.2d 903, 904-05 (1962); State v. Wilson, 126 Ariz. 348, 351, 615 P.2d 645, 648 (App.1980); State v. Gibbs, 6 Ariz.App. 600, 602, 435 P.2d 729, 731 (1968); State v. Franklin, 2 Ariz.App. 414, 416, 409 P.2d 573, 575 (1966).

The state takes the position that the plea in question should not be set aside. It points out that the trial court need only find "substantial evidence" of guilt to accept an Alford plea of guilty. State v. Snodgrass, 117 Ariz. 107, 110-11, 570 P.2d 1280, 1283-84 (App.1977). It contends that in this instance substantial evidence of the petitioner's guilt exists. The state's contention is correct. The child retracted her recantation, and it appears that the recantation may have been the result of coaching by a person who was a relative of both the child and the petitioner. The other child never recanted, and the medical evidence corroborated the claims of sexual assault. The state argues that when the record is viewed in this light, it demonstrates that the petitioner has failed to satisfy the manifest injustice standard articulated in Rule 17.5.

The fact that there is substantial evidence of the defendant's guilt does not govern our inquiry. The key to our decision instead lies in the fact that the plea which the petitioner sought to withdraw was entered pursuant to Alford. Alford stands for the proposition that a trial court may, without violating the Constitution, accept a plea of guilty from a defendant who maintains that he did not commit a crime. Alford, 400 U.S. at 36-37, 91 S.Ct. at 167, 27 L.Ed.2d at 171. While an Alford plea is constitutionally permissible, we do not favor its use. Indeed, some courts have forbidden the use of Alford pleas altogether. See, e.g., Ross v. State, 456 N.E.2d 420, 423 (Ind.1983) (the acceptance of an Alford plea constitutes reversible error); People v. Butler, 43 Mich.App. 270, 279-81 & n. 2, 204 N.W.2d 325, 329-30 & n. 2 (1972) (the trial court may not accept a plea of guilty unless the defendant personally gives facts sufficient to constitute guilt); State v. Korzenowski, 123 N.J.Super. 454, 456 n. 1, 303 A.2d 596, 597 n. 1 (App.Div.) (citing a supreme court directive prohibiting the use of Alford pleas), cert. denied, 63 N.J. 327, 307 A.2d 100 (1973).

One writer, who ultimately concludes that Alford pleas should be permitted, has catalogued the various objections to them. These objections...