State v. Durham, 2140

• Decision Date: 14 June 1972
• Docket Number: No. 2140,2140
• Citation: 108 Ariz. 327,498 P.2d 149
• Parties: STATE of Arizona, Appellee, v. Arlie Frank DURHAM, Appellant.
• Court: Arizona Supreme Court

Page 149

498 P.2d 149

108 Ariz. 327

STATE of Arizona, Appellee, v. Arlie Frank DURHAM, Appellant.

No. 2140.

Supreme Court of Arizona, In Banc.

June 14, 1972.

Gary K. Nelson, Atty. Gen. by Paul J. Prato, Asst. Atty. Gen., Phoenix, for appellee.

Allen L. Feinstein, Phoenix, for appellant.

STRUCKMEYER, Justice.

This appeal is from a plea of guilty to a charge of second-degree murder and the sentence thereon.

During the early morning hours of March 8, 1969, a fight broke out between members of rival motorcycle clubs in a tavern parking lot. In the course of the altercation, the defendant-appellant, Arlie Frank 'Franko' Durham, a candidate for membership in one of the motorcycle clubs, stabbed a member of another club, Peter Henry 'Bear' Smith. Smith was hospitalized and released, and then was re-admitted on March 16, 1969. He died some six weeks after the stabbing of an infection which was believed to have resulted from his stab wound.

Appellant was charged with murder by information filed July 1, 1969. On October 9, 1969, the county attorney filed an amended information charging appellant with murder in the second degree for the purpose of entering a guilty plea. Appellant then requested leave of the Superior Court to withdraw his original plea of not guilty and to enter a plea of guilty to the amended information.

At the hearing at which this request was made, appellant indicated that he had had the opportunity to look at the amended information. His counsel stated that he had explained to the appellant the remifications of a guilty plea, that the appellant could be incarcerated in the state prison for not less than ten years nor more than life, and that no promises or threats had been made in order to obtain a guilty plea. The appellant confirmed these statements. The court told appellant the substance of the charge in the amended information and invited questions from him. In response to a series of questions by the court, appellant indicated that he understood the charge in the amended information; that no one had made any promises of leniency, or probation or any other type of promise to him, nor made any threats in order to obtain a plea of guilty; that he had completed his high school education; that he was a land surveyor by trade; that he understood and specifically wished to waive his rights to the privilege against self-incrimination, to trial by jury with proof beyond a reasonable doubt, and to confrontation; and that he entered his guilty plea of his own free will.

With regard to the factual basis of the charge against the appellant, the following exchange occurred:

'THE COURT: Is the only reason you wish to plead guilty to the charge of Murder Second Degree, is that you did commit the murder as charged?

THE DEFENDANT: Yes, sir.'

The county attorney and defense counsel indicated that they could suggest no further questions for the court to ask and the court thereupon found:

'that the defendant's request to withdraw his former plea of not guilty to the original Information, and to enter a plea of guilty to the Amended Information for Murder, Second Degree, is made knowingly, voluntarily and intelligently, and the Court will accept the plea, and it may be entered.'

More than a month after entering this guilty plea, appellant wrote a sworn, notarized letter to the Superior Court in which he moved to withdraw his plea, claiming that the president of appellant's motorcycle club, who had testified against appellant at the preliminary hearing, had inflicted a severe knife wound upon the victim, that the wound which appellant had inflicted was only a minor wound, and that appellant had previously withheld this information in order to protect the club president. A hearing was set on appellant's motion, but at the hearing on December 1, 1969 the court was advised that the appellant did not wish to withdraw his guilty plea. He was then sentenced to a term in the state prison of not less than twenty-five nor more than thirty years, with credit given for the time spent in jail. This appeal followed.

Appellant asserts two claims for relief: (1) that the Superior Court's judgment should be reversed because the court did not make an affirmative showing on the record that it was satisfied there was a factual basis for the plea; (2) that the case should be remanded to the Superior Court for the purpose of making a motion for leave to withdraw his guilty plea, at which time a factual record can be made.

Although this court has on occasion said in dicta that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) extended the procedural requirements of Rule 11 of the Federal Rules of Criminal Procedure to the state courts, See State v. Campbell, 107 Ariz. 348, 349, 488 P.2d 968, 969 (1971); State v. Laurino, 106 Ariz. 586, 588, 480 P.2d 342, 344 (1971); State v. Griswold, 105 Ariz. 1, 2, 457 P.2d 331, 332 (1969), we recently had occasion to explain that:

'It is, of course, clear from Boykin, supra, that if the plea of guilty satisfies Federal Rule 11 then the requirements of Boykin, supra, have also been met. This does not mean, however, that the State courts are required to follow the letter of Federal Rule 11. It is adherence to the spirit of Federal Rule 11 and not necessarily the literal observance of its provisions that is required by the mandate of Boykin v. Alabama, supra.' State v. Williker, 107 Ariz. 611, 614, 491 P.2d 465, 468 (1971).

In Williker, 107 Ariz. at 615, 491 P.2d at 469, we held that while the trial court must satisfy itself that there is a factual basis for the plea of guilty, this may be done at any time up to sentencing and from sources other than the defendant, himself. ¹ We also held that the record need only indicate that the trial court was sufficiently informed as to the factual basis of the plea, and an explicit finding of fact need not be made, 107 Ariz. at 615, 491 P.2d at 469.

The record should also provide the court with facts sufficient to avoid the possibility of acceptance of a plea from a legally innocent defendant who pleaded guilty out of ignorance, deception, delusion, feelings of moral guilt, or self-destructive inclinations. Simply calling upon a defendant to acknowledge whether he committed the crime as charged may not be sufficient without more, depending upon the circumstances...