State v. Allen

• Decision Date: 08 December 2009
• Docket Number: No. CR-08-0368-PR.,CR-08-0368-PR.
• Citation: 220 P.3d 245
• Parties: STATE of Arizona, Appellee, v. Robert Eugene ALLEN, Jr., Appellant.
• Court: Arizona Supreme Court

220 P.3d 245

STATE of Arizona, Appellee, v. Robert Eugene ALLEN, Jr., Appellant.

No. CR-08-0368-PR.

Supreme Court of Arizona, En Banc.

December 8, 2009.

Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, Sarah E. Heckathorne, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

James J. Haas, Maricopa County Public Defender by Christopher V. Johns, Deputy Public Defender, Phoenix, Attorneys for Robert Eugene Allen, Jr.

OPINION

BERCH, Chief Justice.

¶ 1 This case addresses whether a court must engage a defendant who stipulates to the elements of a criminal offense in a colloquy like that afforded a defendant who pleads guilty. We conclude that, unless the defendant pleads guilty to an offense, no specific colloquy is required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), or Arizona Rule of Criminal Procedure 17.

I. FACTS AND PROCEDURAL BACKGROUND

¶ 2 Two undercover Phoenix police officers heard screams as they drove through their assigned neighborhood on December 8, 2006. They saw Robert Eugene Allen, Jr., carrying a gun and chasing a woman, who was screaming "help, help me."

¶ 3 The officers followed the two into a parking lot, where they saw Allen standing over the kneeling woman, holding the gun to her head. When the officers identified themselves and drew their weapons, Allen fled. The officers went to the woman, who identified herself as Allen's mother.

¶ 4 Two other officers pursued Allen and saw him throw an object into a dumpster and heard a sound "like metal on metal." They later retrieved a .38 caliber revolver from the dumpster. After apprehending Allen, they found some marijuana and thirteen rounds of .38 special ammunition in his pockets.

¶ 5 Allen admitted carrying the gun while chasing his mother, but denied pointing it at her. Allen also admitted that he was prohibited from possessing a firearm and that the marijuana belonged to him.

¶ 6 The State tried Allen on one count each of aggravated assault, disorderly conduct, misconduct involving a weapon, and possession of marijuana. On the second day of trial, the parties asked the judge to read two stipulations to the jury:

The defendant and the State stipulate that the defendant is a prohibited possessor.

The defendant and the State stipulate that the defendant was in possession of a usable amount of marijuana on December 8th, 2006.

¶ 7 The jury found Allen guilty of all four charges, but the court dismissed the disorderly conduct charge as subsumed in the aggravated assault verdict. At the sentencing hearing, Allen admitted having two prior felony convictions. The court sentenced him to varying concurrent prison terms, the longest of which was ten years for the aggravated assault conviction.

¶ 8 The court of appeals affirmed Allen's convictions and sentences for aggravated assault and misconduct involving weapons, but remanded the conviction and sentence for possession of marijuana. State v. Allen, 220 Ariz. 430, 431 ¶ 1, 207 P.3d 683, 684 (App. 2008). The court held that because Allen's stipulation regarding marijuana possession was the "functional equivalent of a guilty plea," the superior court committed fundamental error by not "engaging defendant in a Rule 17-type colloquy and ascertaining that he voluntarily and intelligently entered the stipulation regarding the marijuana charge." Id. at 435 ¶ ¶ 21-22, 207 P.3d at 688.

¶ 9 The court observed that Allen was bound by his counsel's tactical stipulations, absent some "exceptional circumstance." Id. at 433-34 ¶ 18, 207 P.3d at 686-87 (citing State v. West, 176 Ariz. 432, 447, 862 P.2d 192, 207 (1993), overruled on other grounds by State v. Rodriguez, 192 Ariz. 58, 961 P.2d 1006 (1998)). Because defense counsel had strategically decided to stipulate to Allen's prohibited possessor status to avoid the prejudice that might result from the jurors hearing why Allen was prohibited from possessing a weapon, the court held that no exceptional circumstance required his personal waiver and thus no colloquy was required. Id. at 434 ¶ 18, 207 P.3d at 687. But because the court could think of no strategic reason for stipulating to two out of three elements of the marijuana offense and not contesting the third, it concluded that the stipulation was "the functional equivalent of a guilty plea," presenting an exceptional circumstance that required a plea colloquy. Id. at ¶ ¶ 19-22, 207 P.3d at 687-88.¹ The court held that the trial judge's failure to engage Allen in a plea colloquy constituted fundamental error and remanded the case for a determination of whether the lack of a colloquy prejudiced Allen. Id. at 435 ¶ 22, 207 P.3d at 688.

¶ 10 The State petitioned for review, which we granted to determine whether a Boykin or Rule 17 colloquy is required when a defendant stipulates to elements of a charged criminal offense. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution.

II. DISCUSSION

¶ 11 Parties routinely stipulate to easily proven facts, and courts encourage such stipulations "to narrow issues and to promote judicial economy." West, 176 Ariz. at 447, 862 P.2d at 207. Although stipulations may bind the parties and relieve them of the burden of establishing the stipulated facts, stipulations do not bind the jury, and jurors may accept or reject them. State v. Virgo, 190 Ariz. 349, 353, 947 P.2d 923, 927 (App.1997).²

¶ 12 Allen argues that because he stipulated to two out of three elements of the marijuana offense (possession of a usable quantity of marijuana) and did not contest the third element (that his possession was "knowing"), his stipulation was the practical equivalent of a guilty plea, and therefore due process concerns similar to those inherent in pleading guilty should have triggered Boykin and Rule 17 colloquy requirements.

A. Federal Constitutional Requirements: Boykin v. Alabama

¶ 13 Pleading guilty to a criminal offense has significant consequences. As the Supreme Court has explained, a "plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment." Boykin, 395 U.S. at 242, 89 S.Ct. 1709 (citing Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927)). Because, a defendant waives several constitutional rights when pleading guilty — including the privilege against self-incrimination, the right to trial by jury, the right to proof of guilt beyond a reasonable doubt, and the opportunity to confront accusers — the trial judge, to satisfy due process concerns, must ensure that the defendant understands the rights being waived and enters the plea agreement knowingly and voluntarily. Id. at 242-43, 89 S.Ct. 1709.

¶ 14 Allen acknowledges that he did not enter a guilty plea. Nonetheless, he argues, because he stipulated to most of the elements of the crime of possession of marijuana, the court should have advised him of his rights before reading the stipulation to the jury. But stipulations to facts combined with "not guilty" pleas are "simply not equivalent to a guilty plea for Boykin purposes, even if the stipulation is to all elements necessary to a conviction and even if it might appear to a reviewing court that the stipulation serves little purpose." Adams v. Peterson, 968 F.2d 835, 842 (9th Cir.1992); see also Florida v. Nixon, 543 U.S. 175, 188, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (finding defense counsel's statements to jury conceding defendant's guilt not "the functional equivalent to a guilty plea"). The constitution does not compel a full Boykin colloquy in the absence of a formal guilty plea. See Adams, 968 F.2d at 841; see also id. at 845 (Kozinski, J., concurring) (observing that Boykin established a prophylactic rule rather than a constitutional requirement). Thus, Boykin does not require a colloquy in this case.

B. The "Tantamount to a Guilty Plea" Standard

¶ 15 Allen contends, and the court of appeals concluded, that a colloquy was required because Allen's stipulation on the marijuana charge gave up so much that it was the practical equivalent of a guilty plea. Allen, 220 Ariz. at 434 ¶ 19, 207 P.3d at 687. At one time, Arizona cases extended the Boykin colloquy requirement to a stipulation that was "tantamount to a guilty plea." See, e.g., State v. Woods, 114 Ariz. 385, 388, 561 P.2d 306, 309 (1977); State v. Gaines, 113 Ariz. 206, 207, 549 P.2d 574, 575 (1976); State v. Crowley, 111 Ariz. 308, 310, 528 P.2d 834, 836 (1974). Nearly thirty years ago, however, we explicitly rejected the "tantamount to a guilty plea" standard as unworkable. State v. Avila, 127 Ariz. 21, 23, 617 P.2d 1137, 1139 (1980).

¶ 16 In Avila, the defendant submitted his case to the court for determination based solely on the preliminary hearing transcript and a police report. Id. at 22, 617 P.2d at 1138. We noted that while "it must appear from the record that the waiver was knowingly, intelligently and voluntarily made," defining when a submission became the functional equivalent of a guilty plea had proven difficult. Id. at 25, 617 P.2d at 1141. We observed that if a proffered submission does not concede all elements of an offense, the judge may not know when it is offered whether it is "tantamount to a guilty plea," or whether the defendant will instead vigorously contest the remaining elements of the charge. Id. at 24, 617 P.2d at 1140. We also noted "the unfair advantage permitted the accused" provided by the "tantamount to a guilty plea" standard. Id. It allowed a defendant to essentially plead guilty, yet retain rights typically waived when entering a guilty plea, such as the "right to test searches, [the] right to challenge the voluntariness of pretrial admissions, and [the] right to test identification on appeal." Id.

¶ 17 The standard creates other problems as well. It may cause...