State ex rel. Collins v. Superior Court In and For Maricopa County

• Decision Date: 03 May 1988
• Docket Number: No. CV-87-0063-T,CV-87-0063-T
• Citation: 157 Ariz. 71,754 P.2d 1346
• Parties: STATE of Arizona ex rel. Thomas E. COLLINS, Maricopa County Attorney, Petitioner, v. SUPERIOR COURT OF the State of Arizona, In and For the COUNTY OF MARICOPA; Hon. Edmund G. Noyes, a judge thereof, Respondent Judge. Charles Lee POST, Real Party in Interest.
• Court: Arizona Supreme Court

Page 1346

754 P.2d 1346

157 Ariz. 71

STATE of Arizona ex rel. Thomas E. COLLINS, Maricopa County Attorney, Petitioner, v. SUPERIOR COURT OF the State of Arizona, In and For the COUNTY OF MARICOPA; Hon. Edmund G. Noyes, a judge thereof, Respondent Judge Charles Lee POST, Real Party in Interest.

No. CV-87-0063-T.

Supreme Court of Arizona, In Banc.

May 3, 1988.

Reconsideration Denied June 7, 1988.

Thomas E. Collins, Maricopa County Atty. by H. Allen Gerhardt, Phoenix, for petitioner.

Dan Roth, Robert A. Dodell, Scottsdale, for real party in interest.

MOELLER, Justice.

JURISDICTION

By special action filed with the court of appeals, the state challenged the trial court's order dismissing an allegation of a prior conviction. We granted the court of appeals' petition to transfer the special action to this court. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), Rule 7(f), Arizona Rules of Procedure for Special Actions, and Rule 19, Arizona Rules of Civil Appellate Procedure.

FACTS

The defendant was charged with one count of DUI and one count of driving with a blood alcohol content of .10 or more. The state alleged that the defendant had two prior DUI convictions, one in 1981 in the Phoenix Municipal Court, and one in 1983 in the Scottsdale City Court. Before trial, the defendant moved to dismiss the allegation concerning the 1983 conviction. He claimed that the prior conviction could not be used because the state could not show that the underlying guilty plea was entered into knowingly, intelligently, and voluntarily and was supported by a factual basis.

Originally, the trial court denied the defendant's motion to dismiss as premature, with leave to renew it when more information on the prior conviction became available. Subsequently, the parties stipulated that the only evidence of the 1983 conviction was the written plea agreement and the citation, which shows on its back the court's finding of guilty and the sentence imposed. The plea agreement is signed by defendant, his counsel, and the prosecutor. It is a printed form which contains the following language: "I understand that by pleading guilty I will be giving up my right to a trial by jury, ... to confront, cross-examine and compel the attendance of witnesses, and my privilege against self-incrimination."

Based on this record, the defendant resubmitted the motion to dismiss the allegation. After considering the stipulation and oral argument, the trial court granted the defendant's motion to dismiss, ruling that based on the stipulated evidence, "there is no way the State can prove a valid September 27, 1983 D.W.I. conviction."

STATE'S STANDING IN THIS SPECIAL ACTION

The defendant first argues that the state has waived its right to present this special action by reason of the stipulation the parties filed with the trial court.

The pertinent part of the stipulation states The parties have agreed to stipulate to the fact that the proceedings of the Magistrate's Court were not recorded and there does not exist a Guilty Plea Proceeding, and further, the parties are stipulating that the Court rehear Defendant's Motion to Strike a Prior at the date and time of the Pre-Trial Conference presently set for December 4, 1986, at 8:30 o'clock A.M., and that the Court's ruling on said Motion with additional information available may be dispositive of the case.

The trial court's minute entry, made after considering the stipulation and oral argument, reads:

The parties have stipulated that the State has no evidence regarding [the 1983] conviction other than a plea agreement signed by Defendant and counsel and a citation that shows on its back side a finding of guilty and the sentence imposed. For reasons and authority advanced in Defendant's pleadings, the Court therefore finds that there is no way the State can prove a valid [1983] conviction and the allegation of that prior conviction is DISMISSED.

The stipulation does not suggest that either party waived any rights to challenge the trial court's ruling by petition for special action, appeal or otherwise. Nor do we find anything else in the record to suggest that either of the parties or the trial court intended that the stipulation would preclude all review by an appellate court. Consequently, we reject the defendant's argument that the state lacks standing to present this special action for our consideration.

COLLATERAL ATTACK ON PRIOR CONVICTIONS

The defendant does not challenge the authenticity of the plea agreement or the fact of his prior conviction. Rather, the defendant asks us to require the state to show affirmatively that his plea was entered into voluntarily, knowingly, and intelligently and was supported by a factual basis. The state alleges that this is an impermissible collateral attack on the prior conviction.

1. Collateral Attack Based on Federal Constitutional Grounds.

To mount a successful collateral attack on federal grounds, a defendant must show constitutional error--"a fundamental defect which inherently results in a complete miscarriage of justice, [or] an omission inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck, 441 U.S. 780, 783, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634, 638 (1979) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417, 421 (1962)); see also United States v. Lopez-Beltran, 619 F.2d 19 (9th Cir.1979), cert. denied, 445 U.S. 931, 100 S.Ct. 1322, 63 L.Ed.2d 765 (1980).

For several reasons, both of defendant's claims fail to meet this test. First, the federal constitution as interpreted by the United States Supreme Court in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), does not require state courts to establish a factual basis unless the defendant maintains his innocence while entering a guilty plea. Wallace v. Turner, 695 F.2d 545, 548 (11th Cir.1983); see also Wabasha v. Solem, 694 F.2d 155 (8th Cir.1982). Defendant does not contend that his prior plea was an "Alford " plea.

Second, although Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), requires the record on direct appeal to show affirmatively that the plea was voluntarily and knowingly entered, Boykin does not suggest that the absence of such an affirmative showing is grounds for a collateral attack. Moreover, a defendant represented by counsel is usually presumed to have entered his guilty plea voluntarily. Marshall v. Lonberger, 459 U.S. 422, 436-38, 103 S.Ct. 843, 852, 74 L.Ed.2d 646, 660 (1983); Henderson v. Morgan, 426 U.S. 637, 647, 96 S.Ct. 2253, 2258, 49 L.Ed.2d 108, 116 (1976).

Finally, and most significantly, petitioner cannot realistically allege "an omission The defendant here admittedly was represented by counsel in the 1983 proceeding. He claims no constitutional defects in that proceeding; he claims only that the state is presently unable to prove there were no constitutional defects. He could have directly attacked his prior conviction in a variety of ways but chose not to do so. Under these circumstances, the use of the prior conviction in no way violates any right guaranteed to defendant by the federal constitution.

                [157 Ariz. 74]  inconsistent with the rudimentary demands of fair procedure" when he had the options of post-conviction motions, appeal and post-conviction proceedings available to him and either failed to use them or was unsuccessful in using them.   See Timmreck, 441 U.S. at 784, 99 S.Ct. at 2087, 60 L.Ed.2d at 638.   The Supreme Court has sustained a constitutional challenge to a prior conviction only where the evidence indicates that the defendant was not represented by counsel and did not waive his right to counsel in the prior proceeding.   See Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980);   Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972);   United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972);   Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).  Even those grounds have been narrowly construed,  see Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), with grant or denial of relief based in part on the availability of judicial review of the first conviction.   See United States v. Mendoza-Lopez, --- U.S. ----, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987)
                

2. Collateral Attack Based on State Grounds.

We next address defendant's claim that the prior conviction was obtained in violation of Rule 17, Arizona Rules of Criminal Procedure. Rules 17.1, 17.2, and 17.3 require a judge accepting a guilty plea to inform defendant of his constitutional rights and to determine that his decision to plead guilty is voluntarily and knowingly made and is supported by a factual basis. Again, the defendant does not claim that the trial judge at the earlier proceeding did not fulfill the requirements of Rule 17. Instead, he only claims that the state is presently unable to prove that the trial judge complied with Rule 17. Neither the Rules of Criminal Procedure nor the cases interpreting them require a non-record court to memorialize its proceedings. Indeed, such a requirement would run counter to the whole concept of a non-record court. The fact that the conviction is from a non-record court does not bar the use of the conviction, nor does it impose any duty upon the state to prove the validity of a conviction which is regular on its face.

We now turn to the defendant's claim that his prior conviction is void under the Arizona Constitution, and therefore cannot be used in this proceeding. We agree that a constitutionally infirm conviction cannot be used to enhance a charge or sentence in a later proceeding. State v. Watson, 120 Ariz. 441, 448, 586 P.2d 1253, 1260 (1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979); State v. Miller, 108 Ariz. 303, 309, 497 P.2d 516, 522 (1972). However, defendant has not cited, nor has our research...