State v. Coleman
| Decision Date | 24 February 1987 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 733 P.2d 1166,152 Ariz. 583 |
| Parties | STATE of Arizona, Respondent, v. James Raymond COLEMAN, Petitioner. 10364-PR. |
| Court | Arizona Court of Appeals |
James Raymond Coleman, appellant (Coleman), petitions this court for review of the trial court's denial of his petition for post conviction relief. He claims that the record does not support a factual basis for his guilty plea. We agree.
The sparse record before us reveals that Coleman was indicted by a grand jury for custodial interference, a class 6 felony. Coleman entered into a written plea agreement on August 30, 1984, in which he agreed to plead guilty to custodial interference, an undesignated charge. In exchange, he was to receive three years probation, with the offense to be designated a misdemeanor upon successful completion of probation.
The record at the plea hearing indicates that Coleman's wife was given temporary custody of their son pursuant to court order. Immediately after the custody hearing, his wife agreed to let the child go with Coleman for the evening. Coleman took his son to the State of Washington without telling his wife. Approximately three weeks later, he contacted his wife and asked her to come stay with him and the child. She complied, and lived with him and their son for several weeks until Coleman was arrested. The apparent basis for the arrest was a criminal complaint filed by his wife the day after he took the child.
Upon hearing this testimony, the court declined to find a factual basis for the plea. The court recessed and later the parties returned. Coleman then entered a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) and explained that his pleading guilty would facilitate visitation with his son. After some further discussion concerning the conditions of probation, the court found a factual basis for the plea, and that it was voluntarily, knowingly and intelligently made. Coleman was placed on three years probation. The offense remained undesignated. Coleman did not appeal.
Approximately five months later, the state filed a petition to revoke probation. Coleman entered into a plea agreement whereby he admitted violating the conditions of probation by leaving the state without prior approval of his probation officer. State v. Reidhead, 152 Ariz. 231, 731 P.2d 126 (App.1986). In exchange, the remaining alleged technical violations (failure to pay fine and assessment fees) were dismissed. The plea agreement also stated that the offense would be designated a felony at that time, and probation would be reinstated. No transcript of the revocation hearing is before this court.
On October 7, 1985, the state filed another petition to revoke, alleging a failure to report and a failure to pay fines and support. Coleman again entered into a written plea agreement whereby he agreed to admit the allegations in exchange for a sentence in the judge's discretion. This time, the court revoked probation and sentenced Coleman to 1.5 years in prison, the presumptive term for a class 6 felony. The court gave Coleman 109 days credit on his sentence and informed him of his right to appeal. Coleman did not appeal from the revocation or sentence imposed.
On February 6, 1986, Coleman filed a petition for post conviction relief pursuant to rule 32 of the Arizona Rules of Criminal Procedure. He claimed as ground for relief an insufficient factual basis for the charge of a class 6 felony. Coleman sought relief either by release or right to file a delayed appeal.
The state responded, arguing that Coleman was precluded from raising the claim since he failed to raise it at any earlier stage of the proceedings. Coleman filed a supplement to his petition, alleging more specifically that there was no factual basis for the plea because the state failed to establish that the child was not returned to lawful custody prior to his arrest. Coleman claimed that this was a factual element of the offense which was not shown, and thus, the plea should not have been accepted.
The lower court found that Coleman had entered the plea "knowingly and intelligently and is estopped at this time from asserting there was no factual basis." Accordingly, Coleman's petition and subsequent motion for rehearing were denied.
The state argues in its opposing memorandum that Coleman is precluded from contesting the validity of his plea at this time. Coleman asserts that the requirement that there be a factual basis for his plea is a constitutional one which cannot be waived.
Coleman cites State v. Snodgrass, 117 Ariz. 107, 570 P.2d 1280 (App.1977) for support. The appellant in Snodgrass appealed his conviction pursuant to a no contest plea, alleging several errors. However, he did not raise as error an insufficient factual basis for his plea. The appellate court found that rule 17.3, Arizona Rules of Criminal Procedure, "demands that the record show substantial evidence of the defendant's actual guilt." Id. at 110-11, 570 P.2d at 1283-84, citing North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The court thus raised the issue sua sponte and found that the record did not establish that Snodgrass had committed the crime as charged in the information. Accordingly, it set the plea and conviction aside.
The state argues that State v. Gaffney, 121 Ariz. 271, 589 P.2d 914 (App.1979) mandates preclusion in this case. The present case is easily distinguishable from Gaffney. The appellant in Gaffney had already received a rule 32 hearing and had failed to raise these grounds for relief, even though he obviously knew they existed. By contrast, this is Coleman's first rule 32 petition. The record indicates that petitioner was unaware of the necessity of raising by direct appeal the claim he now presents. See State v. Carriger, 143 Ariz. 142, 146, 692 P.2d 991, 995 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 864 (1985). The offense remained undesignated until later, and no discussion took place at the plea hearing concerning the significance of the child's return. Under these circumstances, Coleman has properly presented his case for review on the merits.
The plea agreement listed the elements of custodial interference as follows: 1) Defendant took a child under the age of 18 from the lawful custody of another; 2) knowing he had no right to do so; and 3) kept the child from lawful custody. See State v. Grooms, 145 Ariz. 439, 702 P.2d 260 (App.1985). The court stated these same elements as the elements of the offense at the change of plea. They are drawn from A.R.S. § 13-1302(A) which provides:
A person commits custodial interference if, knowing or having reason to know that he has no legal right to do so, such person knowingly takes, entices or keeps from lawful custody any child less than eighteen years of age or incompetent, entrusted by authority of law to the custody of another person or institution.
However, subsection B of that same section, in effect when the defendant took his son, provided:
Custodial interference is a class 6 felony unless the person taken from custody is returned voluntarily by the defendant without physical injury prior to arrest in which case it is a class 1 misdemeanor.
The defendant argues that the court was required to find as an element of the charge that he did not voluntarily return the child to the mother's lawful custody prior to accepting the plea with its possible felony designation. This argument has not been addressed by our courts because none of the defendants in the opinions interpreting A.R.S. § 13-1302 claimed they returned the child voluntarily. See State v. Grooms, 145 Ariz. 439, 702 P.2d 260 (App.1985); State v. Donahue, 140 Ariz. 55, 680 P.2d 191 (App.1984). See also State v. Kracker, 123 Ariz. 294, 599 P.2d 250 (App.1979).
From the face of the statute, it appears that failure to voluntarily return the child was intended by the legislature to be an element of the crime. The return to custody is the only fact distinguishing a misdemeanor from a felony. That distinction carries with it serious ramifications which extend beyond the immediate consequences of the present pending charges. See, e.g., A.R.S. § 13-604(A). We therefore conclude that failure to return the child to custody is an element of the felony charge.
This does not mean that the trial court must inform a...
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