State v. Avila, 5008-PR

• Decision Date: 17 September 1980
• Docket Number: No. 5008-PR,5008-PR
• Citation: State v. Avila, 127 Ariz. 21, 617 P.2d 1137 (Ariz. 1980)
• Parties: STATE of Arizona, Appellee, v. Mario AVILA, Appellant.
• Court: Arizona Supreme Court

Page 1137

617 P.2d 1137

127 Ariz. 21

STATE of Arizona, Appellee, v. Mario AVILA, Appellant.

No. 5008-PR.

Supreme Court of Arizona, In Banc.

Sept. 17, 1980.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Lynn Hamilton, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by Joel M. Glynn, Deputy Public Defender, Phoenix, for appellant.

HAYS, Justice.

Defendant-appellant, Mario Avila, was charged with child-molestation in violation of A.R.S. § 13-653 (Supp.1978) of our pre-revision Criminal Code. At a September 1, 1978 preliminary hearing, probable cause to prosecute was found to exist and appellant was ordered to answer the allegations before the Superior Court. On February 28, 1979, appellant executed a "Waiver of Trial By Jury" and agreed to submit the determination of guilt or innocence to the court, based solely upon the transcripts of the preliminary hearing and the departmental report. Based upon this evidence, appellant was adjudged guilty as charged; imposition of sentence was suspended, and he was placed on probation for a period of five years. Appellant thereupon filed an appeal to the Court of Appeals.

Citing State v. Crowley, 111 Ariz. 308, 528 P.2d 834 (1974); State v. Gaines, 113 Ariz. 206, 549 P.2d 574 (1976); and State v. Woods, 114 Ariz. 385, 651 P.2d 306 (1977), appellant contended that when a submission to the court is tantamount to a guilty plea, the accused must receive the entire litany of Boykin rights. ¹ Appellant's submission, it was claimed, was the practical equivalent of a guilty plea and error was therefore alleged in the failure of the trial court to advise him of his privilege against self-incrimination and of the range and possible special conditions of sentence. State v. Garcia, 115 Ariz. 535, 566 P.2d 683 (1977). The Court of Appeals reversed, State v. Avila, 127 Ariz. 39, 617 P.2d 1155 (1980) and the State of Arizona moved, unopposed, for rehearing, requesting a reconsideration of the entire Crowley-Woods line of cases. Its motion denied, the state has filed the instant petition for review, and we accepted jurisdiction pursuant to A.R.S. § 12-120.24. The opinion of the Court of Appeals is vacated.

The "submission tantamount to a guilty plea" problem has plagued the courts of this state since its 1974 adoption in Crowley, supra. It has entangled the trial courts in a series of procedural and substantive obstacles and has been condemned as unworkable by the Court of Appeals. State v. Cantu, 116 Ariz. 432, 569 P.2d 862 (App.1977). In fact, the difficulties inherent in the principle have inspired our lower appellate court to articulate its frustration as follows:

"(In) State v. Cantu, 116 Ariz. 432, 569 P.2d 862 (App.1977) ... this Court expressed dissatisfaction with the full application of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), to a submission hearing factually analogous to that before us here.

"Any change, however, in this confusing procedure must be deferred to the Arizona Supreme Court. (citation omitted). Hopefully, if we continue knocking at the door, someone will answer." State v. Avila, supra.

In response to the graphic request of our brethren below, we have responded by again examining the various ramifications of this problem. The learned appeals court judges' knock on the door is answered.

I

Our analysis focuses initially upon the prior decisions of this court which have given rise to the instant dispute.

In State v. Payne, 110 Ariz. 506, 520 P.2d 1130 (1974), Arizona recognized for the first time that Boykin warnings may be necessary in a case which is submitted for determination by the court and in State v. Crowley, supra, this principle became the law of the land. In State v. Gaines, supra, however, we explained Crowley as applying solely to those submissions which were the practical equivalent of a plea of guilty.

The difficulties attending the doctrine initially became apparent in State v. Woods, supra, where we attempted to define with precision those situations in which a submission was to be considered tantamount to a guilty plea. Citing with approval a series of California decisions, we noted that where the proffered record offered no hope of acquittal, the submission was manifestly identical to a plea of guilty and held, inter alia, that mere cross-examination of state's witnesses at the preliminary hearing did not, by itself, suffice to deny the submission the protection afforded guilty plea equivalents.

State v. Garcia, supra, again presented this court with a difficult definitional problem. The submission there, however, was held tantamount to a guilty plea based upon the existence of incriminating statements contained in the departmental reports. Moreover, Garcia exposed the additional dilemma of classifying precisely those Constitutional rights which are waived upon a submission essentially identical to a plea of guilty. We held that in addition to those rights outlined in our previous opinions, the defendant must be informed of his privilege against self-incrimination and of the permissible range of sentence.

Based upon those obstacles outlined above, and others subsequently discussed, appellant would have us restructure the entire "tantamount to a guilty plea" doctrine. Having now had an opportunity to view the operation of the rule, and upon a careful balancing of the orderly administration of justice against the potential prejudice to an accused, it is the considered opinion of this court that Crowley, supra, and all opinions relying thereon, must be overruled.

Our decision is based upon examination of several factors. Initially, as indicated previously in this opinion, the "tantamount to a guilty plea" doctrine has been one more readily articulated than applied. For example, defining those circumstances which transform a mere submission into one tantamount to a guilty plea has proved a difficult and often elusive endeavor. Must the record submitted offer no hope of acquittal, or may it contain some exculpatory evidence? Is it sufficient if the submission is entered pursuant to an agreement with the state? Issues such as these, in concert with the countless foreseeable combinations of such circumstances, reveal the futility of attempting formulation of precise standards capable of application by a trial court.

Moreover, a critical problem in this regard is created by the time at which the court's distinction must be drawn. We have stated that ordinary submissions and those equivalent to a guilty plea require contrasting warnings. Gaines, supra. Clearly, the requisite instructions, whether Boykin or otherwise, must be given the accused prior to his submission or submission tantamount to a guilty plea. A judge, however, having not yet had the full opportunity to view the record in the case, is, unfortunately, unable to determine the category of submission before him and is therefore at a loss in offering the appropriate caution to the defendant.

Of additional concern to us is the unfair advantage permitted the accused by the "tantamount to a guilty plea" procedure. The doctrine allows the defendant, in essence, to plead guilty, while retaining many of those rights (e. g., right to test searches, right to challenge the voluntariness of pretrial admissions, and right to test identification on appeal) normally deemed waived pursuant to entry of such a plea. In addition, the theory permits the accused to submit his cause for bench decision,...