State v. Anderson, 6622-PR
| Decision Date | 09 December 1985 |
| Docket Number | No. 6622-PR,6622-PR |
| Citation | 710 P.2d 456,147 Ariz. 346 |
| Parties | STATE of Arizona, Appellee, v. Richard J. ANDERSON, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, R. Wayne Ford, Asst. Atty. Gen., Phoenix, for appellee.
Thomas Abram, Phoenix, for appellant.
We granted review in this case in order to examine the propriety of the trial court's refusal of defendant, Richard J. Anderson's request to withdraw a plea of no contest entered into with the state on April 26, 1983. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and Ariz.R.Crim.P. 31.19.
On March 14, 1983, the Maricopa County Grand Jury indicted defendant on three counts of sale of dangerous drugs and one count of knowingly possessing a dangerous drug for sale, all class two felonies. A.R.S. § 13-3404. The state then amended the indictment by allegations of prior felony offenses pursuant to State v. Hannah, 126 Ariz. 575, 617 P.2d 527 (1980).
The facts giving rise to defendant's arrest and indictment are as follows: Defendant operated a business out of his home. R.J. Anderson Distributing Company sold herb food supplements known as A.P.R.H. Tea Balls (tea balls) imported from Hong Kong. Defendant marketed tea balls claiming the product provided relief from arthritis. On August 20, 1982, the Arizona Department of Public Safety (DPS) received information from a private citizen who reported ill effects after ingesting tea balls. DPS agents, in an undercover capacity, purchased tea balls from defendant and had samples analyzed by their crime lab. The samples were found to contain chlordiazepoxide (librium), a dangerous drug, pursuant to A.R.S. § 13-3401(6)(c)(v). The record is in dispute as to whether the drug was found in a usable quantity as only qualitative tests were performed by the crime lab. Defendant claims to have had numerous laboratory tests performed on tea balls, all testing negative as to librium.
Defendant's counsel and the state agreed to have tea ball samples tested by an independent laboratory, the Center for Human Toxicology in Salt Lake City, Utah. The samples were submitted to the lab by DPS Agent James Welty. Prior to receiving the final test results from Salt Lake City the defendant entered into a plea agreement with the state. Defendant pled no contest to all four counts as class one misdemeanors. The parties stipulated to the following terms:
The settlement and release referred to the receipt of defendant's 1974 MG automobile received in full settlement and satisfaction of all claims, actions or demands which arose in related civil forfeiture proceedings concerning defendant's car and mobile home where tea balls were found.
In a subsequent report from the Salt Lake City Lab it was stated that no chlordiazepoxide was present in any of the submitted samples. Based on these reported findings defendant filed a motion to withdraw his no contest plea on May 23, 1983.
The trial court conducted an evidentiary hearing on August 1, 1983, with experts from each side reaching opposite conclusions as to the presence of chlordiazepoxide in the tea balls. A microbiologist testified on behalf of the defendant. He tested a sample of the tea balls and found no drugs present. Next, a forensic toxicologist from the Salt Lake City lab testified on defendant's behalf. While his initial testing done prior to the plea indicated the presence of the drug, on retest no amounts of the drug were present. The explanation for the initial positive results was a malfunction in the lab's gas chromotography/mass spectrometry equipment. He was, however, quite emphatic that the final tests were correct. Defendant's motion to withdraw his plea was based on this final test and was termed "newly discovered evidence" for purposes of the motion. See State v. Irwin, 106 Ariz. 536, 479 P.2d 421 (1971).
The state called five witnesses to substantiate its allegation that chlordiazepoxide was present in usable quantities in the tea balls. All the witnesses testified as to the presence of the drug in the samples. It is interesting to note that initial testing done by the Food and Drug Administration found no presence of drugs in the tea balls. Subsequent tests by the FDA reported positive results.
The trial court reviewed the plea proceedings and on August 3, 1983, ruled that substantial justice was done by the plea and there was no manifest injustice which needed to be corrected. The defendant was sentenced according to the plea agreement on August 12, 1983.
The defendant filed a timely appeal and subsequently filed a petition for post conviction relief. The appeal was stayed while defendant's petition for post conviction relief was considered and ultimately denied by the trial court. Both matters were consolidated for review on appeal. Defendant's counsel was permitted to withdraw from the proceedings and defendant filed a brief in propria persona. In a memorandum decision filed May 23, 1985, the Arizona Court of Appeals, Division One, affirmed the judgment and sentence. On June 6, 1985, defendant filed a petition for review to this Court. The sole issue on review is whether defendant received ineffective assistance of counsel in forming the basis for entering into his plea of no contest.
Throughout the course of events leading up to defendant's plea he was tendered several plea offers by the state. Defendant rejected each plea offer, vehemently proclaiming that the tea balls contained no chlordiazepoxide. On April 26, 1983, the parties were at court for a pretrial conference at which time the state tendered another plea agreement. After initially rejecting the offer, defendant agreed to the plea based on his belief that if the results from Salt Lake City were negative, he could withdraw the plea. Here is where the major confusion exists.
On April 26, 1983, the following colloquy took place between the trial court and defendant prior to the court's acceptance of the plea:
"THE COURT: ....
All right. It indicates you wish to enter a plea of guilty to the charge of Count I, II, III and IV, all Possession of Dangerous Drugs all being class 1 misdemeanors. Are those the four counts that you wish to enter a plea of guilty to here today?
....
....
....
....
Trial counsel further testified that prior to the acceptance of the plea there was no discussion with defendant regarding the permissible grounds for withdrawal of a plea or the legal standard (manifest injustice) used by the judge. Defendant testified that had he known that withdrawal was not a mere formality and that it was discretionary with the trial court he would not have entered into the plea.
A plea of guilty is a waiver of several constitutional rights, including the fifth amendment privilege against compulsory self-incrimination and the sixth amendment rights to insist on a jury trial and to confront one's accusers. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279 (1969). Like a guilty plea a plea of no contest "is an admission of guilt for the purposes of the case". Hudson v. United States, 272 U.S. 451, 455, 47 S.Ct. 127, 129, 71 L.Ed. 347 (1926); State v. Stewart, 131 Ariz. 251, 254, 640 P.2d 182, 185 (1982). It is clear, then, that there is no significant difference between a plea of guilty with a protestation of innocence and a plea of no contest, because by entering a plea of no contest, "a defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were guilty." Id.; North Carolina v. Alford, 400 U.S. 25, 35, 91 S.Ct. 160, 166, 27 L.Ed.2d 162, 170 (1970). For this waiver to be valid under the Due Process Clause, it must be "an intentional relinquishment or abandonment of a known right or...
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...induced a guilty plea. See, e.g., State v. Ysea, 191 Ariz. 372, 379, ¶¶ 23-24, 956 P.2d 499, 506 (1998); State v. Anderson, 147 Ariz. 346, 351-52, 710 P.2d 456, 461-62 (1985). But neither party cites, and we have not found, any published Arizona case addressing whether a defendant may seek ......
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State v. Bowers
...unprofessional errors, the result of the proceeding would have been different, i.e., was it prejudicial? State v. Anderson, 147 Ariz. 346, 351, 710 P.2d 456, 461 (1985). ¶12 The affidavits by the Petitioner and counsel regarding counsel's erroneous legal advice set forth a colorable claim o......
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State v. Rubiano
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