State v. Ellis

• Decision Date: 17 November 1977
• Docket Number: No. 3861,3861
• Citation: 572 P.2d 791,117 Ariz. 329
• Parties: STATE of Arizona, Appellee, v. Harmon Lee ELLIS, Appellant.
• Court: Arizona Supreme Court

Page 791

572 P.2d 791

117 Ariz. 329

STATE of Arizona, Appellee, v. Harmon Lee ELLIS, Appellant.

No. 3861.

Supreme Court of Arizona, In Banc.

Nov. 17, 1977.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, and R. Wayne Ford, Asst. Attys. Gen., Phoenix, for appellee

Ross P. Lee, Maricopa County Public Defender by H. Allen Gerhardt, Jr., Deputy Public Defender, Phoenix, for appellant.

HAYS, Justice.

On April 12, 1976, the appellant, Harmon Lee Ellis, pursuant to a plea agreement, pled guilty to one count of burglary while armed with a gun, in violation of A.R.S. §§ 13-301, 13-302(A), (C), (D), and one count of armed robbery in violation of §§ 13-641, 13-643(B). He received sentences of not less than 75 years nor more than 125 years for each count. The sentences were ordered to be served concurrently.

The appellant assigns numerous errors for our consideration on appeal. We take jurisdiction pursuant to 17A A.R.S. Supreme Court Rules, rule 47(e)(5).

SPEEDY TRIAL

The appellant claims that he was denied his right to a speedy trial under 17 A.R.S. Rules of Criminal Procedure, rule 8.2(a). The trial for this case had been set for April 12, 1976, the date the appellant pled guilty. The appellant alleges that he was arrested on October 2, 1975, more than 150 days before the date set for trial. See rule 8.2(a). The state, on the other hand, alleges that he was arrested on December 24, 1975, well within 150 days of April 12. ¹ We do not have to decide which allegation is correct, however, because as we have said many times, a defendant waives any question regarding his right to a speedy trial by entering a plea of guilty. State v. Canaday, Ariz., 569 P.2d 238 (1977); State v. Miller, 110 Ariz. 304, 518 P.2d 127 (1974).

FACTUAL BASIS FOR THE PLEA

The appellant argues that the trial judge failed to establish a factual basis for the plea in violation of 17 A.R.S. Rules of Criminal Procedure, rule 17.3. We find otherwise. At the time appellant pled guilty, his attorney stipulated that the police departmental report and the preliminary hearing transcript be admitted for the purpose of finding a factual basis for the plea. We find from our review of these documents that the trial judge properly determined that there was a factual basis for the plea. See State v. Huizar, 112 Ariz. 489, 543 P.2d 1118 (1975).

VOLUNTARY AND INTELLIGENT PLEA

The appellant alleges that his plea was not made either voluntarily or intelligently.

He first alleges that his plea was made under duress in that the only reason he pled guilty was so that he would be removed from what he regarded as bad conditions at the county jail and returned to prison.

While the defendant, at one point in the proceedings, did state, "We just want to cop out and get back to prison, that's all," he immediately thereafter answered "yes" to the following question of the trial judge: "I take it you are each pleading guilty of your own free will because after discussing the matter with your counsel you are now honestly convinced that you are guilty of the crimes * * *." The appellant's answer to this question refutes his claim that jail conditions were the sole motivation for his plea. Even if unpleasant jail conditions were a partial motivation for appellant's plea, he has not satisfied us that these conditions had such a coercive influence on his decision to plead guilty that the plea was involuntary. See State v. Burton, 16 Ariz.App. 61, 490 P.2d 1189 (1972).

The appellant alleges that he did not have his glasses at the time of signing the plea agreement and, therefore, did not have an opportunity to read the agreement. The record, however, indicates that the appellant answered " yes" when the trial judge asked him if he had had an opportunity to read the plea agreement.

The appellant next alleges that he pled guilty without ever being informed of what the goods were that he had allegedly stolen. We know of no rule or case that requires the judge to list the goods stolen in order for a guilty plea to be regarded as intelligently made. Certainly, the requirement of Rule 17.2(a) that the judge inform Appellant alleges that he made repeated requests to the trial judge to explain how a guilty plea would "affect an appeal" and that the trial judge refused to answer his requests. While the record clearly indicates that appellant's codefendant asked the trial judge, "How will this affect an appeal?", it does not appear anywhere in the record that the appellant asked a similar question. Furthermore, the trial judge fulfilled any duty he may have had in answering such a question when he informed the appellant that he would have the right to appeal a conviction based on a guilty plea.

the defendant of the "nature of the charge to which the plea is offered" does not extend this far. Furthermore, an appellate court may review the extended record to determine if the defendant was in possession of enough information to make an intelligent plea. In the case at hand, the robbery victim provided the court with a detailed list of the goods stolen in his testimony at the preliminary hearing. Since the appellant was present at that hearing, we find no merit to his contention.

The appellant alleges that the trial judge failed to properly advise him of the nature of the charges to which he pled guilty under Rule 17.2(a), Rules of Criminal Procedure, in that the judge failed to advise him of the elements of each offense to which he pled guilty.

Our cases have held that neither Rule 17.2 nor Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), requires that the defendant be advised of the elements of the offense charged before the plea can be regarded as intelligently made. State v. DeGrate, 109 Ariz. 143, 506 P.2d 1037 (1973); State v. Howell, 109 Ariz. 165, 506 P.2d 1059 (1973).

We are aware that a recent United States Supreme Court case, Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), requires that a defendant be informed of the elements of the offense with which he is charged in certain cases. We need not decide whether the case at hand is among those that must be decided according to the rule of Morgan, though, because we have specifically held that Morgan will not be given retroactive application. State v. Henry, 114 Ariz. 494, 562 P.2d 374 (1977).

Finally, the appellant alleges that the trial judge failed to inform him of the special sentencing provisions of A.R.S. § 13-643(B) in violation of Rule 17.2(b). We agree.

Rule 17.2(b) states:

"Before accepting a plea of guilty . . ., the court shall address the defendant personally in open court, informing him of and determining that he understands the following:

"(b) The nature and range of possible sentence for the offense to which the plea is offered, including any special conditions regarding sentence, parole, or commutation imposed by statute."

A.R.S. § 13-643(B) contains a self-executing, special sentencing provision that states, "and in no case, * * * shall the person convicted be eligible for suspension or commutation of sentence, probation, pardon or parole until such person has served the minimum sentence imposed." (Emphasis added.) This provision applies to all convictions of robbery while armed with a gun. ² There is no evidence in this case that the trial judge informed appellant that he would have to serve the minimum sentence that the judge imposed.

We have decided a number of cases recently that deal with the consequences of the trial judge's failure to comply fully with Rule 17.2(b). We take this opportunity to clarify the legal standards developed in those cases.

In State v. Morones, 112 Ariz. 369, 542 P.2d 28 (1975), the trial judge failed to inform the defendant of a special sentencing provision requiring that he serve a minimum of five years in jail. Since the defendant was, in fact, given a sentence whereby he would not have been eligible for parole within 5 years anyway, the court found that the defendant had not been prejudiced by the judge's error and that the error should be regarded as technical.

In State v. Rios, 113 Ariz. 30, 545 P.2d 954 (1976), we expressly overruled the "no prejudice" position taken in Morones, supra, and articulated a new standard for reversal for violations of Rule 17.2(b) based on whether the defendant's decision to plead guilty had been intelligently made. "A plea cannot be considered 'intelligently' made where, as in this case, there is no evidence that the defendant was at any stage of the prosecution provided information required to be disclosed to him under Rule 17.2." Rios, 113 Ariz. at 32, 545 P.2d at 956.

In State v. Rogel, Ariz., 568 P.2d 421 (1977), the trial judge failed to inform the defendant that he could have been fined $200 in addition to any prison term imposed by the judge. The fine was not, in fact, imposed. In refusing to permit a withdrawal of the guilty plea, this court distinguished the case from Rios by stating, "(w)hile the imposition of a fine . . . may have been a technical possibility it was not an operative element of the sentence which was imposed . . .." (Emphasis added.) State v. Rogel, supra, Ariz., 568 P.2d at 423. In deciding the case on this basis, it is clear that the Rogel opinion returned to a modified version of the "no prejudice" standard that had been expressly rejected in Rios.

Finally, in State v. Cuthbertson, Ariz., 570 P.2d 1075 (filed October 17, 1977), the trial judge failed to inform the defendant that he would have to serve the minimum sentence imposed. Since this self-executing provision of the sentencing statute postponed the defendant's parole eligibility date, we held that he had been prejudiced by the court's failure to inform him of the provision.

It is now our opinion that Rios, supra, swept too broadly. As we indicated in Cuthbertson, supra, when the mandates of Boykin, supra, have been met we can say that under constitutional standards the plea has been...