State ex rel. Dean v. City Court of City of Tucson

• Court: Arizona Court of Appeals
• Writing for the Court: FERNANDEZ; LACAGNINA
• Citation: State ex rel. Dean v. City Court of City of Tucson, 778 P.2d 1310, 161 Ariz. 414 (Ariz. App. 1989)
• Decision Date: 28 February 1989
• Docket Number: Nos. 2,CA-CV,s. 2
• Parties: The STATE of Arizona ex rel. Frederick S. DEAN, Tucson City Attorney, Plaintiff/Appellee, v. The CITY COURT OF the CITY OF TUCSON, and the Honorable Rita Jett, a magistrate thereof, Respondents, Raymond M. KRUGER and George Pacheco, Real Parties in Interest/Appellants. 88-0327,CA -CV 88-0328.

Page 1310

778 P.2d 1310

161 Ariz. 414

The STATE of Arizona ex rel. Frederick S. DEAN, Tucson City Attorney, Plaintiff/Appellee, v. The CITY COURT OF the CITY OF TUCSON, and the Honorable Rita Jett, a magistrate thereof, Respondents Raymond M. KRUGER and George Pacheco, Real Parties in Interest/Appellants.

Nos. 2 CA-CV 88-0327,CA -CV 88-0328.

Court of Appeals of Arizona Division 2, Department B.

Feb. 28, 1989.

Redesignated as Opinion and Publication Ordered March 16, 1989.

Review Denied Sept. 19, 1989.

Frederick S. Dean, Tucson City Atty. by R. William Call, Tucson, for plaintiff/appellee.

Law Office of Dunscomb and Shepherd, P.C. by Robb P. Holmes, Tucson, for real parties in interest/appellants.

OPINION

FERNANDEZ, Judge.

The sole issue raised in these consolidated cases is whether appellants' lack of counsel in their prior convictions for driving under the influence of intoxicating liquor (DUI) may be collaterally attacked when the convictions are used to enhance the sentence in their present DUI convictions.

In February 1987, appellant Raymond Kruger was arrested for driving under the influence and driving with a blood alcohol content greater than .10. The state alleged a prior conviction for DUI based upon Kruger's plea of no contest entered in Tucson City Court on March 22, 1985. When that plea was entered, Kruger was not represented by an attorney. He did not challenge his prior conviction either by appeal or by post-conviction proceedings. Before accepting his plea of no contest, the magistrate advised Kruger of the constitutional rights he was giving up by entering a plea, including his right to be represented by counsel. Kruger acknowledged that he was advised of the rights he was relinquishing by signing a form entitled "Proceeding on Acceptance of Plea." The form contains the following language 3. That the Defendant understands that the following constitutional rights are given up:

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--(B) The right to the assistance of an attorney at all stages of the proceeding, and in certain cases to an appointed attorney, to be furnished free of charge if the Defendant cannot afford one.

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Alternate 8.

--Defendant is not represented by an attorney and waives his/her right to be represented by an attorney in this proceeding.

In May 1987, respondent magistrate granted Kruger's motion to strike the prior conviction allegation in the present charges, ruling that the plea entered in March 1985 "was not made with full knowledge of the potential benefits which could enure to him if he were advised or represented by an attorney." The state filed a petition for special action in superior court.

Appellant George Pacheco was arrested in January 1986 for DUI, driving on a suspended license and failing to have proof of insurance. The state alleged a prior conviction for DUI that was entered in April 1984. At the time of the prior conviction, Pacheco was not represented by an attorney. Pacheco neither appealed the prior conviction nor sought post-conviction relief. Before Pacheco entered his plea, the city magistrate advised him of the constitutional rights he was giving up by entering a plea, including his right to be represented by an attorney, in the same manner in which Kruger was advised of his rights. Pacheco acknowledged the rights he relinquished by signing a "Proceeding on Acceptance of Plea" form identical to the form Kruger signed. Respondent magistrate granted Pacheco's motion to set aside the prior conviction because he had not been represented by counsel at the time he pled, ruling that "Court re-asserts its position that a change of plea which does not advise a Defendant of that information recommended by the Arizona Supreme Court is deficient." The state then filed a petition for special action in the superior court.

The cases were consolidated in superior court. After argument, the court granted the petitions, vacated the magistrate's orders and remanded the cases for further proceedings, ruling that the records indicate appellants knowingly,...