State ex rel. Bowers v. Superior Court In and For County of Navajo
| Decision Date | 30 July 1992 |
| Docket Number | CA-SA,No. 1,1 |
| Citation | 839 P.2d 454,173 Ariz. 34 |
| Parties | STATE of Arizona, ex rel. Melvin R. BOWERS, County Attorney for the County of Navajo, Petitioners, v. SUPERIOR COURT OF the State of Arizona, in and for the COUNTY OF NAVAJO, the Honorable Warner G. Leppin, a judge thereof, Respondent, Shawn SPENCER, Real Party in Interest. 92-0094. |
| Court | Arizona Court of Appeals |
In this special action, the state seeks review of the trial court's rejection of a plea agreement on the ground that it contained a stipulated sentence, and from the trial court's order striking the state's allegations of Hannah priors on the ground that it would subject the real party in interest (defendant) to cruel and unusual punishment if A.R.S. § 13-604(H) were applied to him in this case. We previously entered an order granting relief in part and denying relief in part with an opinion to follow. This is that opinion.
On August 30, 1991, defendant was charged by information with three counts of third degree burglary, class 3 felonies; three counts of second degree burglary, class 4 felonies; four counts of theft, class 1 misdemeanors; one count of theft, a class 4 felony; and two counts of criminal damage, class 2 misdemeanors. On October 16, 1991, the state filed an "Addendum to Information," alleging that each of the felony counts were prior convictions for purposes of enhanced sentencing, pursuant to A.R.S. § 13-604(H) and State v. Hannah, 126 Ariz. 575, 617 P.2d 527 (1980).
On February 5, 1992, the parties submitted a plea agreement to the trial court for approval. The agreement provided that defendant would plead guilty to three counts of third degree burglary, class 4 felonies. Based upon how the parties treated the various counts as prior convictions, the partial effect of the agreement was that defendant would have to serve minimum concurrent sentences of eight years imprisonment, but be eligible for release after six years. Defendant also agreed to pay restitution not to exceed $100,000 to all victims, including those in the dismissed counts, and the state offered defendant the opportunity to obtain immunity for any other property offenses he had committed if he disclosed the details, made restitution to the victims, and assisted the police in retrieving the property.
At the change of plea hearing, the trial court, before determining the voluntariness of the plea or its factual basis, rejected the plea agreement out of hand for the following reason:
THE COURT: Counsel, I'm not going to accept the Plea Agreement on the basis that it's a stipulated sentence....
Show the court rejects the Plea Agreement on the basis that the Plea Agreement provides what the court will sentence the defendant to, with no discretion left to the Court whether to mitigate or aggravate the sentence....
Defendant filed a motion for reconsideration, arguing that rejection of the plea agreement left defendant facing trial on charges that could range from a minimum sentence of 72.5 years, a presumptive of 88.5 years, and a maximum of 119.5 years. Defendant also filed a "Response in Opposition of Allegation of Hanna[h] Priors," requesting that the court strike the state's allegation of priors because the potential sentencing range would constitute cruel and unusual punishment as applied to this defendant. The sentence would be cruel and unusual, it was argued, because the potential range of sentencing defendant would face is disproportionate to that imposed in this jurisdiction for other crimes and to that imposed in other jurisdictions for the same crimes.
At the hearing on both motions, the court ruled as follows regarding its rejection of the plea agreement:
I don't know how many times I have to put this on the record. The Court, regarding the Motion for Reconsideration, does not think that rule 17 or 17.2, eliminates the right of the Court to reject summarily a Plea Agreement, which the Court is not willing to accept on the face of the Agreement.
On the face of the Agreement in this matter, there is absolutely no discretion by the Court regarding any of the charges that the defendant is pleading guilty to. I do not know whether I would sentence that defendant to more or less....
But there is no question in the Court's mind that this particular Plea Agreement absolutely eliminates the need for the court. You may as well do it without me. I'm not going to sit up here and be a shill for the attorneys, and what they agree to, when I know that they are not fettering the Court's discretion, they are taking it away and eliminating it completely.
The Court will not do it. Take me up. And if the Court of Appeals wants to say that this can be done, that's okay. I don't think the right of the County Attorney gives the County Attorney the right to be judge, jury and trier of the facts and sentencing judge at the same time.
On the constitutionality of the Hannah priors, the court ruled:
The Court rejected the Plea Agreement on the basis that the same was a stipulated sentence and was an infringement on the power of the Court's discretion as to this matter and rejected the Plea Agreement. The State now wishes to use Hannah Priors to enhance punishment which the State does not contest could subject this 19 year old person with no prior felony convictions to a minimum term of 72.5 years and a maximum of 119.5 years. Further, the State does not contest that in the Defendant's listed memo the maximum/minimum range of penalties would be approximately half or less of that proposed by the State in this particular case. The Court has reviewed the cases of Sole[m], Harmelin, and State v. Bartlett and both the Federal and State Constitutions and finds in this particular case based on the inherent gravity of the offenses in this case, the sentence imposed for similar offenses in this jurisdiction and sentences imposed for similar crimes in other jurisdictions, that by allowing the application of Hannah priors that the same would create disproportionality as to punishment to such an extent that it would shock the conscience of this Court under the particular circumstances of this case. Further, the Court finds that the extreme sentence that could be imposed is grossly disproportionate to the spree crime involved, and therefore
IT IS ORDERED that the allegations of Hannah priors is denied.
The state has sought review of both orders by special action.
Both challenged actions of the trial court are non-appealable. The state has no right to appeal from a rejection of a plea agreement because interlocutory appeals are not permitted in criminal cases. See Nalbandian v. Superior Court, 163 Ariz. 126, 128, 786 P.2d 977, 979 (App.1989), cert. denied, 498 U.S. 997, 111 S.Ct. 554, 112 L.Ed.2d 562 (1990). We recognize that an order striking an allegation of prior convictions is appealable after sentencing as an illegal sentence under A.R.S. § 13-4032(6), if after conviction, the trial court refuses to impose an enhanced sentence based on those priors. State ex rel. McDougall v. Crawford, 159 Ariz. 339, 340-41, 767 P.2d 226, 227-28 (App.1989); see, e.g., State v. Sands, 145 Ariz. 269, 276-77, 700 P.2d 1369, 1376-77 (App.1985). Such an issue could also be raised after sentencing by cross-appeal under A.R.S. § 13-4032(4) as a "ruling on a question of law adverse to the state when the defendant was convicted and appeals from the judgment." Crawford, 159 Ariz. at 341 n. 2, 767 P.2d at 228 n. 2. However, in this case, the trial court has stricken the allegation of prior convictions prior to trial. Such an order will prevent the state from obtaining a conviction on the allegation of priors, so special action jurisdiction is appropriate to allow the state to contest the denial of this prosecutorial function. 1 Id. at 340-41, 767 P.2d at 227-28.
Furthermore, the state contends, and defendant concedes, that the issues raised in this case are of first impression and are a matter of statewide importance because they could routinely recur in future cases. For these reasons, in the exercise of our discretion, we accept special action jurisdiction.
As a preliminary matter, we note the unique procedural posture of this special action in which the state, by arguing that the trial court's rejection of the plea agreement was an abuse of discretion, is also arguing, in effect, that the court's subsequent denial of defendant's motion for reconsideration was error. The state is therefore in the position of supporting defendant's motion in the trial court. We believe, however, that the state "has standing to object when the court attempts to proceed in apparent disregard of the plea agreement." State v. Superior Court, 125 Ariz. 575, 578, 611 P.2d 928, 931 (1980). Therefore, because the state has an interest in reinstating a plea agreement to which it is a party in an effort to protect its resources and enhance judicial economy, the state is a proper party to bring this action. Id. However, the state has also sought to have defendant judicially estopped in this special action from taking a position inconsistent with his arguments in the motion for reconsideration. Because this would effectively rob this court of an adversarial presentation, and because defendant may now believe that his bargaining position may have improved because of the court's action, we do not believe this is an appropriate case to apply judicial estoppel. We therefore will consider defendant's arguments in response to the state's petition.
The state first contends that the trial court erred in...
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