State v. Irwin, 1977
| Decision Date | 13 January 1971 |
| Docket Number | No. 1977,1977 |
| Citation | 479 P.2d 421,106 Ariz. 536 |
| Parties | STATE of Arizona, Appellee, v. Richard Curtis IRWIN, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.
Robert Wertsching, Phoenix, for appellant.
The defendant herein, Richard C. Irwin, appeals from his conviction and sentencing for the crime of second-degree murder. Defendant was convicted by the Superior Court of Yuma County in 1964 after entering a plea of guilty, and was sentenced to a term of not less than 35 nor more than 45 years in the state prison.
Defendant, acting in propria persona, filed a petition for habeas corpus in this court in 1968. In his petition for habeas corpus defendant alleged, Inter alia, that he had not taken a timely appeal because his attorney had advised him against such action and that he personally was unaware of his appeal rights. We treated the habeas corpus petition as a motion for delayed appeal and remanded the matter to the Superior Court of Yuma County to determine whether such a delayed appeal was justified. After a hearing limited to that question, the Superior Court found that the delay in taking the appeal was attributable to the fact that defendant received no encouragement or assistance from his attorney with respect to appeal after his sentencing, that defendant was thereafter confined in prison without legal counsel, and that he had no knowledge of the steps necessary to take an appeal.
On the basis of the findings of the Superior Court we granted defendant a delayed appeal.
The defendant was originally arraigned in Superior Court in 1964 along with a codefendant, one Rodney A. Sherwood, on a charge of first-degree murder. At that time defendant entered a plea of 'not guilty.' The minute entries of the court reflect that a week later defendant withdrew his plea and entered a plea of 'guilty' to the charge of second-degree murder. His co-defendant Sherwood also plead guilty to second-degree murder and each was sentenced to a term of from 35 to 45 years.
In his brief to this court on appeal, defendant now contends that he should be permitted to withdraw his plea of guilty and receive a full trial. In support of his position he relies upon the following factual allegations: The murder to which defendant pleaded guilty in 1964 occurred in a motor vehicle. According to the defendant, no witnesses other than he and his co-defendant, Sherwood, were present. At the time they were charged with the crime, each told his own version of the shooting in an effort to accuse the other; the two versions were contradictory. Their statements are not a part of the record before us. Defendant here urges that because he felt he would be unable to show that Sherwood and not the defendant actually committed the murder, defendant pleaded guilty to the charge of second-degree murder in order to avoid the possibility of a trial for first-degree murder which, if conviction resulted, would mean the death penalty or life imprisonment. As a result of pleabargaining, the change of plea was effectuated. The record indicates that defendant's counsel was pleased with the result.
This appeal is based in part on a turn of events which occurred after defendant and Sherwood were sentenced. Defendant now asserts that Sherwood has changed his mind and is willing to testify that he, Sherwood, and not the defendant committed the murder. Defendant states that Sherwood would testify further that the defendant was shocked at the shooting and had no foreknowledge of it. Defendant attempted to introduce this testimony by Sherwood at the 1969 hearing ordered by this Court on defendant's petition for habeas corpus. The trial court, however, refused to accept the testimony on the ground that the hearing was limited to the question of whether the defendant was entitled to a delayed appeal. Defendant's counsel at that time was limited to a brief statement of what Sherwood would testify to. Consequently, the record does not reflect the exact nature of Sherwood's proposed testimony.
On the basis of these circumstances, defendant now urges two grounds which he contends require this Court to order that he be allowed to withdraw his former plea of guilty and proceed with a new trial to determine his guilt or innocence of the crime.
Defendant first argues that the record does not contain an affirmative showing that at the time he originally entered his plea of guilty, he did so knowingly and voluntarily. Secondly, the defendant contends that the newly-available evidence * * * Sherwood's purported willingness to acknowledge guilt * * * requires a new trial.
We will first consider the contention by the defendant that the lack of an affirmative showing of voluntariness at the time the plea was entered requires that the defendant be allowed now to withdraw his plea. Defendant relies upon Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), as authority for this proposition.
While it is true that the Supreme Court of the...
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Garnett v. State, 86-294
...the case under the standard of newly discovered evidence. Dawson v. State, 44 Ala.App. 525, 215 So.2d 459 (1968); State v. Irwin, 106 Ariz. 536, 479 P.2d 421 (1971); State v. Urry, 104 Ariz. 244, 450 P.2d 1018 (1969); People v. Mendoza, 195 Colo. 19, 575 P.2d 403 (1978); Britten v. State, 1......
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State v. Anderson, 6622-PR
...his plea was based on this final test and was termed "newly discovered evidence" for purposes of the motion. See State v. Irwin, 106 Ariz. 536, 479 P.2d 421 (1971). The trial court reviewed the plea proceedings and on August 3, 1983, ruled that substantial justice was done by the plea and t......
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