State v. Jackson
| Decision Date | 03 July 1972 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 499 P.2d 111,17 Ariz.App. 533 |
| Parties | STATE of Arizona, Appellee, v. Melvin Eugene JACKSON, Appellant. 359. |
| Court | Arizona Court of Appeals |
Gary K. Nelson, Atty. Gen., by Mary Z. Chandler, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Public Defender for Maricopa County by Anne Kappes, Deputy Public Defender, Phoenix, for appellant.
This is an appeal from a judgment of conviction entered on a plea of guilty to one count of aggravated battery and from a sentence of not less than three nor more than four years. The relevant facts are as follows.
On July 1, 1969 Mildred T. Sackman was attacked at her home by three or four young men. She was struck on the head and knocked unconscious. Later she discovered that a television set and a purse containing jewelry and checks had been taken from her home.
Shortly after the incident, Mrs. Sackman identified the defendant as one of her assailants from a photograph. At that time defendant was in the custody of the Maricopa County Juvenile Court. He was not charged with any offenses relating to this incident until after he became 18 years of age, which was some 11 months after the incident. He then was charged with burglary, grand theft, and aggravated battery.
Defendant moved to dismiss or quash the information on the ground that the late bringing of the charges violated his right to a speedy trial. This motion was denied, and defendant then indicated that he wished to plead guilty to Count III of the information, aggravated battery. The court inquired into the voluntariness of the plea, advised the defendant of certain consequences of his plea, and finally accepted it. At the time of sentencing the other two charges were dismissed.
On appeal defendant argues that his plea of guilty is invalid under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) for a number of reasons. First, he contends that the trial court failed to advise him as to the possible penalty he might incur as a consequence of the plea. A review of the record shows that the sole reference to the possible penalty made at the time the plea was accepted was that the defendant was entering a plea to an open-end offense. This communicated nothing about the range of sentence involved; it only indicated that the court could treat the offense either as a felony or as a misdemeanor. The only other reference to the possible sentence was an ambiguous remark made by the County Attorney during an argument over bail at the preliminary hearing, to-wit:
It is true, as the State points out, that the trial court examined the defendant extensively. The trial judge ascertained that he had a grammar school education, and that he had discussed with his attorney 'the results, and what could happen as a result' of his pleading guilty. The court also advised him that the offense could be treated either as a felony or a misdemeanor, and ascertained that no threats or promises had been made to him. But the record does not reflect that he was advised of the highest range of possible sentence before the acceptance of his plea. This is what Boykin requires. Subsequent to the plea in the instant case our Supreme Court decided State v. Hooper, 107 Ariz. 327, 487 P.2d 394 (1971), which held that Boykin requires that the trial court advise a defendant of the possible maximum sentence. The parties in this case devote considerable attention in their briefs to the question of whether or not Hooper is retroactive. We find it unnecessary to decide this question in view of our belief that Hooper does not set new constitutional standards but merely correctly interprets Boykin on this point.
As our Supreme Court noted, Boykin held that since, by a plea of guilty, a defendant surrenders three constitutional rights--the right to remain silent, the right to a jury trial, and the right to confront witnesses against him--the record must affirmatively show that the guilty plea was intelligently and voluntarily made. To be truly intelligent a plea must be made with an understanding of its attending 'consequences'. Thus, as our Supreme Court pointed out, the United States Supreme Court, when it used the word 'intelligent' in Boykin, must have intended a showing of the equivalent to that part of Federal Rule 11 which requires that the federal judge determine that a plea is made with an understanding of the 'consequences of the plea'. One of the more important of these 'consequences' is the maximum length of time a defendant might have to spend in prison. In accord with this, as our Supreme Court noted in Hooper, at least eight of the eleven circuits have construed Federal Rule 11 to require that a defendant be advised of the highest range of the possible sentence before pleading. We are of the opinion that this is a proper reading of Boykin. Moreover, we cannot assume from the record before us that the defendant Knew what possible sentence he might receive.
The proper remedy for this error, however, is not to set aside the plea of guilty and the judgment of convinction. Here again, we agree with the holding of Hooper. As in that case, the record here reflects that the defendant voluntarily pled guilty to one of the original counts in the information; and aside from a minor objection which we will shortly dispose of, he does not urge that he was unaware of the consequences of the plea. Ordinarily, in light of this we would assume that the defendant's attorney advised him of the possible benefits to be derived from a plea of guilty to one charge in return for the dismissal of the other two, and, thereafore, of the differences in the range of punishments. But, as the record does not affirmatively show that he was advised as to the maximum term he could receive, we will order that the case be returned to the Superior Court of Maricopa County for this determination.
The Superior Court is directed to hold an evidentiary (Hooper) hearing to determine whether defendant was advised by his counsel or had knowledge before pleading guilty to the charge of aggravated battery of the possible maximum sentence for that charge, as well as the differences in the ranges of maximum penalties between that and the other two charges. If the trial court finds that the defendant was adequately informed as to these matters, then it will advise this Court by appropriate findings of fact, in which event, if the...
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...consequences of the plea, including the range of sentence. See State v. Hooper, 107 Ariz. 327, 487 P.2d 394 (1971); State v. Jackson, 17 Ariz.App. 533, 499 P.2d 111 (1972). Boykin rested upon the perceived need to minimize the risk of ignorance, incomprehension, and subtle or blatant threat......
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