State v. Darling

• Decision Date: 01 March 1973
• Docket Number: No. 2393,2393
• Citation: 506 P.2d 1042,109 Ariz. 148
• Parties: The STATE of Arizona, Appellee, v. John Warren DARLING, Appellant.
• Court: Arizona Supreme Court

Page 1042

506 P.2d 1042

109 Ariz. 148

The STATE of Arizona, Appellee, v. John Warren DARLING, Appellant.

No. 2393.

Supreme Court of Arizona, In Banc.

March 1, 1973.

Gary K. Nelson, Atty. Gen., by William P. Dixon, Asst. Atty. Gen., Phoenix, and Norman R. Freeman, Law Student, University of Arizona, Tucson, for appellee.

Herbert B. Finn, Phoenix, for appellant.

CAMERON, Vice Chief Justice.

This is an appeal from a judgment after a plea of guilty to the crime of child molesting, § 13--653 A.R.S., with a sentence of not less than five nor more than fifteen years in the Arizona State Prison.

We are asked to answer the following questions on appeal:

1. Was the sentence excessive?

2. Did the County Attorney fail to abide by the plea bargain?

3. Did the plea of guilty comply with the United States Supreme Court case of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)?

The facts necessary for a determination of this matter on appeal are as follows. The defendant, while working as a painter on the premises of Glendale High School, enticed a six year old girl into a room by giving her candy and a soft drink. The victim was physically injured and the defendant was arrested for said crime. A preliminary hearing was held at which time the defendant was represented by counsel. Defendant was held to answer and in the Superior Court the defendant entered his plea of guilty.

After being sentenced to a term of not less than five nor more than fifteen years, the defendant attempted to set aside his plea of guilty which was denied and he then filed a timely appeal to this court.

WAS THE SENTENCE EXCESSIVE?

The defendant contends that the sentence was excessive and constituted cruel and unusual punishment because the statute provides that the minimum term shall be served before the defendant is eligible for parole which effectively denies him rehabilitation or treatment. § 13--653 A.R.S.

It is true that the defendant had never been arrested before and had suffered personal tragedy in the loss of his wife in a home fire prior to the incident in question. As to what treatment he will receive towards rehabilitation at the Arizona State Prison we do not know.

This court has consistently held, however, that if a sentence is within the statutory limits provided by the statute, it is not an abuse of the trial court's discretion. State v. Bible, 104 Ariz. 346, 452 P.2d 700 (1969).

Further, a review of the preliminary hearing transcript and the physical injury inflicted upon the six year old child, as well as the circumstances under which it was done, leads us to believe that the sentence imposed in the instant case was appropriate.

DID THE COUNTY ATTORNEY FAIL TO LIVE UP TO HIS PLEA BARGAIN?

Defendant next contends that even though the County Attorney complied with the case of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), in that it fulfilled its promise 'to go along with probation conditioned on psychiatric treatment,' that because the prosecutor had no basis for the belief that his recommendation would be taken into consideration by the court, the promise was illusory. We do not agree. The County Attorney did exactly what he promised but no more. The prosecutor is in no position to guarantee that the court will agree with his recommendation. That the County Attorney may have had his doubts, if indeed the record in this case indicates that he did, that the court would not follow his recommendation is no reason for setting aside the plea bargain. Further, a review of the record does not indicate that the defendant was under any illusion. In fact, the court asked him:

'Q Has anyone made any promises to you what the possible sentence in this case will be?

'A No, sir.

'Q Do you understand that any recommendations by your lawyer or the County Attorney are not binding on this Court?

'A Yes, sir, I understand that.'

See State v. Richard, 109 Ariz. 65, 505 P.2d 236, 25 January 1973.

WERE THE BOYKIN REQUIREMENTS MET?

Defendant contends that the court failed to comply with the strict requirements of Boykin v. Alabama, supra, at the time he entered his plea of guilty in that the court did not inform the defendant of certain rights specifically mentioned in the case of Boykin v. Alabama, supra.

The record before this court reflects that the trial court extensively examined the defendant as to the facts of the case and as to the consequences of his plea. The record before this court convinces us that defendant's plea was intelligently and knowingly made without coercion. The record, however, does not show that the defendant was at the time of the plea notified by the court of the right to confront one's accusers and the privilege against self-incrimination, two rights, together with the right to trial by jury, which are specifically mentioned in the case of Boykin v. Alabama, supra.

Because of the number of appeals in this court raising Boykin issues, we feel it necessary to once again discuss the applicability of Boykin to the record in pleas of guilty entered after the decision in Boykin on 3 June 1969.

Boykin stated:

'* * * The requirement that the prosecution spread on the record the prerequisites of a valid waiver is no constitutional innovation. In Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, we dealt with a problem of waiver of the right to counsel, a Sixth Amendment right. We held: 'Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.'

'Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Third, is the right to confront one's accusers. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. We cannot presume a waiver of these three important federal rights from a silent record.' Boykin v. Alabama, supra, 89 S.Ct. 1709 at 1712.

The United States Supreme Court later stated:

'The new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.' Brady v. United States, 397 U.S. 742, 747, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747, 756 (Note 4) (1970).

Boykin also applied the spirit of Rule 11 of the Federal Rules of Criminal Procedure and while strict compliance by the state courts with Rule 11 may not be mandated, it will certainly satisfy the requirements of Boykin, supra, if Rule 11 is followed. State v. Williker, 107 Ariz. 611, 491 P.2d 465 (1971).

Neither Boykin, supra, nor Brady, supra, however, defined the term 'record' and we have held that the presence report or the reporter's transcript of the preliminary hearing was part of the record for the purpose of satisfying the requirements of Boykin. State v. Durham, 108 Ariz. 327, 498 P.2d 149 (1972); State v. Thompson, 109 Ariz. 47, 504 P.2d 1270, filed 12 January 1973; State v. Williker, supra; State v. Hooper, 107 Ariz. 327, 487 P.2d 394 (1971).

And courts have held that where a reporter's transcript is not available the record is not 'silent', but may be reconstructed. State v. Hall, 188 Neb. 130, 195 N.W.2d 201 (1972); State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972). We have also held that where the complete record on appeal reflects a knowing, intelligent and voluntary plea without coercion but that the record is nevertheless silent as to some portion of the Boykin requirements, we will return the matter for a hearing to determine if the defendant was in fact advised or knew of a specific omitted right:

'Since the record reflects that the defendant voluntarily pled guilty to the amended information and he does not urge that he was unaware of the consequences of his plea, we would ordinarily assume that his lawyer advised him of the possible benefits to be derived from a plea of guilty to the reduced charge and, therefore, of the differences in the range of punishments. But, since the record does not affirmatively show that Hooper was advised he could receive up to ten years, we will order that this case be returned to the Superior Court of Maricopa County, with directions that an evidentiary hearing be held to determine whether defendant was advised by his counsel before pleading guilty to...