State v. Lemieux, s. 1

• Decision Date: 09 August 1983
• Docket Number: Nos. 1,CA-CR,s. 1
• Citation: 669 P.2d 121,137 Ariz. 143
• Parties: STATE of Arizona, Respondent-Appellee, v. Lorren Roland LEMIEUX, Petitioner-Appellant. 5926, 1 6277-PR.
• Court: Arizona Court of Appeals

Page 121

669 P.2d 121

137 Ariz. 143

STATE of Arizona, Respondent-Appellee, v. Lorren Roland LEMIEUX, Petitioner-Appellant.

Nos. 1 CA-CR 5926, 1 CA-CR 6277-PR.

Court of Appeals of Arizona Division 1, Department D.

Aug. 9, 1983.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Chief Counsel Crim. Div., Barbara A. Jarrett, Asst. Attys. Gen., Phoenix, for appellee

Thomas E. Collins, Maricopa County Atty. by Patricia Scott, Deputy County Atty., Phoenix, for respondent.

Ross P. Lee, Maricopa County Public Defender by Garth V. Smith, Deputy Public Defender, Phoenix, for petitioner-appellant.

OPINION

HAIRE, Presiding Judge.

In this consolidated appeal and petition for review of the trial court's denial of relief sought in a petition for post-conviction relief, petitioner-appellant (hereinafter appellant) asserts:

1. that his pleas of guilty were not knowingly, voluntarily and intelligently entered because of his mistaken belief that probation was a viable sentencing alternative; and

2. that the trial court erred in failing to grant appellant an evidentiary hearing concerning his belief that probation was a viable sentencing alternative.

The record in this case reveals that appellant's pleas of guilty were knowingly, voluntarily and intelligently entered, and that appellant presented no colorable claim for relief which would entitle him to an evidentiary hearing pursuant to Rule 32.8, Rules of Criminal Procedure, 17 A.R.S. We therefore affirm the judgments and sentences and deny relief.

Appellant was charged by indictment in August 1980 with two counts of unlawful sale of a narcotic drug, a class two felony, and four counts of unlawful sale of marijuana, a class two felony. In November 1981, appellant entered a plea of guilty to one count of attempted sale of a narcotic drug, a class three felony, and one count of attempted sale of marijuana, a class three felony. The plea agreement stipulated that appellant "will be sentenced to the presumptive term of 5 years in the Arizona State Prison and will be sentenced to concurrent terms." In exchange for appellant's plea of guilty to the two charges, the state agreed to dismiss the remaining counts of the indictment.

At the hearing on appellant's change of plea, appellant admitted the elements of the offenses to which he pled guilty and indicated that there had been no promises, threats or force which resulted in his plea of guilty. The following colloquy between the appellant and the court then occurred:

"Q. Have there been any promises of what type of sentence or any promise that you will get probation, other than what's stated on this plea agreement?

"A. No.

"Q. The range of penalties that this crime carries is a presumptive sentence of five years, a minimum sentence of 3.75 years, a maximum sentence of ten years. Probation is available.

The maximum fine that can be imposed is $150,000 plus a 27% surcharge.

You understand that as a term and condition of probation you could get up to one year in the Maricopa County Jail.

However the plea agreement does provide for a presumptive term of five years in the Arizona State Prison, concurrent terms.

You understand that that's the range and that's what you're going to get?

"A. Yes, your Honor."

(Emphasis added.)

In January 1982, the trial court accepted the plea agreement, entered judgments of guilt, and sentenced appellant to serve concurrent terms of five years on each of the two counts. The court also dismissed the remaining counts. Two weeks later, appellant filed a notice of appeal.

During a hearing on appellant's motion for release pending appeal, the following exchange occurred between the trial court, appellant, and defense counsel:

"THE COURT: You may proceed.

"THE DEFENDANT: Thank you, your Honor. First, I'd like to say that when I was in for sentencing I clammed up when--when you asked me if there was anything I had to say. My mind just went blank. There are a few things that I'd like to say in my behalf.

That in the two years since these charges occurred, that I, on my own, straightened my life up, got a job, went back to work, raised my two kids, and was doing very well. And I'm just asking for mercy on my own behalf, because I've tried so hard to straighten myself up.

"THE COURT: I appreciate that.

"MR. SMITH: [Defense Counsel] Your Honor, Mr. Lemieux has advised me that--in the hallway today--that he showed me a copy of the plea agreement that he did sign, and that I said that--he informed me he really didn't fully understand the agreement, even though it calls for a stipulated five year sentence.

He apparently was somewhat confused by the language in the plea agreement, which said probation is available. When in fact it was a stipulated five years--five year sentence.

And that he entered into that plea agreement believing that the court could impose or could place him on probation, if it so chose.

Is that correct?

"THE DEFENDANT: That's correct."

Appellant contends that the quoted exchange indicates that he did not understand the plea agreement because he believed that probation was a viable sentencing alternative at the time he entered his plea. In April 1982, appellant filed a petition for post-conviction relief pursuant to Rule 32.1, Rules of Criminal Procedure, 17 A.R.S., seeking to withdraw his guilty plea on the same basis. He also requested that the trial court grant an evidentiary hearing pursuant to Rule 32.8. Counsel was appointed to represent appellant, and in May 1982, the trial court summarily denied the petition for post-conviction relief. Appellant then filed a motion for rehearing arguing that he had presented a colorable claim and was entitled to an evidentiary hearing. Following the state's reply, the court denied the motion for rehearing, and appellant timely filed a petition for review.

By order of this court, the appeal in this matter was stayed pending the trial court's disposition of the petition for post-conviction relief. The appeal was then reinstated and consolidated with the petition for review for disposition.

THE PLEA

Appellant first contends that his guilty plea was not knowingly, voluntarily and intelligently entered due to his mistaken belief that probation was a viable sentencing alternative. He contends that there are several objective bases in the record to support his position.

According to appellant, the first of these bases is the written plea agreement itself which, in the first paragraph, states, "Probation is available." Paragraph 8 of the plea agreement also provides:

"The parties hereto fully and completely understand and agree that it is the court's duty to impose sentence upon the defendant and that any sentence either stipulated to or recommended herein in paragraph two is not binding upon the court, and that the court need not accept either the stipulation or recommendation but is bound only by the limits set forth in paragraph one and the applicable statutes."

Appellant argues that read together, these provisions left him with the impression that the stipulated five year sentence term was merely a recommendation and that the court could still impose probation. He also contends that the trial court's statements to him at the time he entered his plea led him to believe that probation was a viable sentencing alternative. Finally, he contends that his remarks to the trial court at the hearing on his motion for release pending appeal indicate that he believed probation was available.

He concludes, therefore, that his plea is invalid because it was entered under a misapprehension of the sentencing alternatives. See State v. Geiger, 113 Ariz. 297, 552 P.2d 1191 (1976); State v. Hill, 118 Ariz. 157, 575 P.2d 356 (App.1978); State v. Davis, 115 Ariz. 153, 564 P.2d 104 (App.1977). Appellant requests this court to remand this matter to the trial court...