State v. Laurino
| Decision Date | 08 February 1971 |
| Docket Number | No. 2096,2096 |
| Citation | 480 P.2d 342,106 Ariz. 586 |
| Parties | STATE of Arizona, Appellee, v. Daniel LAURINO, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.
DeConcini & McDonald, by J. William Brammer, Jr., Tucson, for appellant.
This is an appeal from a judgment of guilt after a plea of guilty to the crime of giving away marijuana, § 36--1002.07 A.R.S. Defendant was sentenced to not less than five nor more than seven years in the Arizona State Penitentiary.
We are called upon to determine whether the plea was voluntarily and intelligently made.
The facts necessary for a determination of the matter on appeal are as follows. A four count information was filed on 5 June 1969 charging defendant as follows: Court 1, § 36--1002.07 A.R.S., Unlawful Giving Away of Marijuana; Count 2, § 36--1002 A.R.S., Unlawful Possession of a Narcotic Drug; Count 3, § 32--1964, subsec. A(7) A.R.S., as amended, § 32--1965 A.R.S. and § 32--1975, subsec. B. A.R.S., Possession of LSD; and Count 4, § 36--1002.05 A.R.S., Unlawfully Possessing Marijuana, all under cause number A--17313.
Trial by jury was set for 16 September 1969, and on that date defendant changed his plea on Count 1 from not guilty to guilty. The Court questioned the defendant as follows:
'Now this count that we are talking about is the count that charges that on or about April 7th that each of you gave away marijuana to another which is in violation of certain sections of the Arizona Code.
Now, Daniel, the charge that you would be pleading guilty to is the same charge, it is in the original Information, that you gave away marijuana to another in violation of statutes on April 7th. You understand the charge?
You have discussed this fully with him, Mr. Giles?
On acceptance of the plea by the court, the Deputy County Attorney moved to dismiss Counts 2, 3, and 4 of the original information against the defendants which motion was granted. The matter was set over for sentencing and after a hearing in mitigation the court stated:
'It is further the judgment and sentence of the Court that you be committed to the Arizona State Prison for not less than five nor more than seven years, sentence to commence as of this date.
'Also any transcripts that might be needed will be furnished at County expense.'
The defendant indicated later his desire to appeal and counsel was appointed to represent him on appeal.
The attorney, in the brief filed herein, stated pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), that after examination of the entire record he believed the appeal to be frivolous. However, as required by Anders, supra, counsel listed as possible appealable grounds the following:
1. The appellant did not specifically waive his right to trial by jury.
2. Appellant did not specifically waive his right to confront his accusers.
3. That to some degree the manner in which the plea was taken violates the
standards set forth by the Arizona cases regarding pleas of guilty. MUST APPELLANT SPECIFICALLY WAIVE HIS RIGHT TO TRIAL BY JURY AND TO CONFRONT HIS ACCUSERS?
The question of an effective waiver of a federal constitutional right in a criminal trial is governed by federal standards. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). And the case of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), states, 'we cannot presume a waiver of these * * * rights from a silent record.' 395 U.S. 238, 243, 89 S.Ct. 1709, 1712. This case, in effect, extended the procedural requirements of Rule 11 of the Federal Rules of Criminal Procedure to the state courts. Federal Rule 11 reads as follows:
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Davis v. State
...Zelker, 466 F.2d 1092, 1102 (2d Cir. 1972) (dictum), cert. denied, 410 U.S. 945, 93 S.Ct. 1405, 35 L.Ed.2d 612 (1973); State v. Laurino, 106 Ariz. 586, 480 P.2d 342 (1971); State v. Bugbee, 161 Conn. 531, 290 A.2d 332 (1971). See generally J. Bond, Plea Bargaining and Guilty Pleas § 3.08(1)......
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State ex rel. LeBlanc v. Henderson
...Edwards v. State, 51 Wis.2d 231, 186 N.W.2d 193 (1971); State v. Piacella, 27 Ohio St.2d 92, 271 N.E.2d 852 (1971); State v. Laurino, 106 Ariz. 586, 480 P.2d 342 (1971); State v. Campbell, 107 Ariz. 348, 488 P.2d 968 (1971); Jones v. State, 207 Kan. 622, 485 P.2d 1349 (1971); Miracle v. Pey......
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...trial court of the guilty plea and to reflect that it was made voluntarily and understandingly by the defendant. In State v. Laurino, 106 Ariz. 586, 480 P.2d 342 (1971), the Arizona Court holds that Rule 11 is imposed on the States by Boykin, but in deciding the case it declared, '. . . Nei......
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...defend in person, e.g. State v. Goldsmith, 112 Ariz. 399, 542 P.2d 1098 (1975); the right to confront witnesses, e.g. State v. Laurino, 106 Ariz. 586, 480 P.2d 342 (1971); the right to a jury trial, e.g. State v. Hooper, 145 Ariz. 538, 703 P.2d 482 (1985), cert. denied, 474 U.S. 1073, 106 S......