State v. Limpus, 1
| Decision Date | 19 February 1981 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 625 P.2d 960,128 Ariz. 371 |
| Parties | STATE of Arizona, Appellee, v. Dennis LIMPUS, Appellant. 4394. |
| Court | Arizona Court of Appeals |
Appellant pled guilty to two counts of sexual exploitation of a minor, a Class II felony, in violation of A.R.S. §§ 13-3552, 13-3551, and one count of photographing a minor engaged in sexual conduct, a Class III felony, in violation of A.R.S. §§ 13-3508 and 13-3501. The state dropped additional allegations of two counts of sexual conduct with a minor and one count of photographing a minor engaged in sexual conduct. The plea agreement recited that the state took no position on sentencing. Following a mitigation hearing in which the sole witness to testify was Dr. Michael B. Bayless, appellant's psychologist, appellant was sentenced to serve a term of seven years in the Arizona State Prison on Count I, sexual exploitation of a minor, five years in the Arizona State Prison on Count II, photographing a minor engaged in sexual conduct, and seven years in the Arizona State Prison on Count IV, sexual exploitation of a minor, all sentences to run concurrently.
Appellant filed a timely notice of appeal and raises six issues for our consideration:
1) Whether the state breached the plea agreement by taking a position on sentencing during the cross-examination of Dr. Bayless;
2) Whether A.R.S. § 13-3552 is constitutionally void for vagueness;
3) Whether A.R.S. § 13-3508 is constitutionally void for vagueness;
4) Whether the record reveals a factual basis for appellant's plea to each count;
5) Whether the record reveals that appellant understood the nature of the charges to which he pled guilty; and
6) Whether the sentences imposed on appellant constitute an abuse of discretion and are excessive.
Appellant contends that during the cross-examination of Dr. Bayless, the state breached the plea agreement by taking a position on sentencing. At the time appellant entered his pleas, defense counsel and the prosecutor agreed on the record that counsel for the state could cross-examine appellant's mitigation witnesses, notwithstanding the state's promise to take no position on sentencing. Approximately five weeks later, the mitigation hearing was held, and appellant complains that in two instances the state breached the plea agreement.
The first instance occurred when the deputy county attorney cross-examined the psychologist regarding confessions of alleged prior bad acts made by the appellant to Dr. Bayless during the course of their counseling sessions. Defense counsel objected, and the following exchange occurred:
MS. SLOSS (defense counsel): Your Honor, I object to this line of questioning. First of all, he said he took a complete history. Specific details of any acts are completely irrelevant to this case. He is here to give his opinion on the situation today and prognosis for the future, being aware of all the situations. And going into detail about past acts is really completely irrelevant, No. 1, and No. 2, the County Attorney's Office said in the plea agreement that they were not going to introduce any evidence or new testimony.
MR. WILLIAMS (prosecutor): We said we would take no position on evidence. Dr. Bayless has gotten up here and given a lot of theories, a lot of conclusions and very little facts. If he doesn't have a complete history, he has nothing to base his statements on. The State doesn't have to sit here with its tongue tied in a mitigation hearing even though we are not introducing any evidence.
THE COURT: The objection is overruled. You may proceed.
Appellant contends that the second instance in which the state took a position on sentencing occurred during the following exchange:
Q (prosecutor): I understand from what you testified to on direct that you can, correct me if I'm wrong, but you don't believe in sending someone to prison for a punishment, is that correct?
A (Dr. Bayless): I think that prison is designed for it is my understanding in working with the court system, it is designed for rehabilitative process and as a protection against society, protection for society. Excuse me.
In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the United States Supreme Court held that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." 404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433. Thus, a breach by the state of an agreement to make no recommendation on sentencing constitutes reversible error. State v. Barnes, 118 Ariz. 200, 575 P.2d 830 (App.1978). A breach of an agreement to take no position on sentencing occurs not only when the state directly breaks its promise, "but also when the spirit of the inducement, reasonably inferred from the written agreement, is breached." State v. Davis, 123 Ariz. 564, 567, 601 P.2d 327, 330 (App.1979). Thus, the issue in the instant case is whether the state's cross-examination of Dr. Bayless amounted to a breach of the plea agreement. We hold that it did not.
The Arizona courts have addressed this issue several times. In State v. Davis, supra, this court held that the prosecutor's recommendation of a nine to ten year prison sentence and statements regarding the defendant's history of violence made in a pre-sentence report constituted a breach of the agreement to take no position on sentencing. See State v. Kelley, 126 Ariz. 193, 613 P.2d 857 (App.1980). Additionally, as cited in State v. Davis, supra, a number of federal courts have ruled on the issue. Thus, when a prosecutor expressed a position through statements made in a probation department report, the action of the prosecutor was determined to violate the spirit of the plea agreement. United States v. Shanahan, 574 F.2d 1228 (5th Cir. 1978). And, at sentencing, when counsel responded to an argument by defense counsel, the action constituted a breach of the plea agreement. United States v. Crusco, 536 F.2d 21 (3rd Cir. 1976). See also, United States v. Grandinetti, 564 F.2d 723 (5th Cir. 1977); Bergman v. Lefkowitz, 569 F.2d 705 (2nd Cir. 1977); and United States v. Ewing, 480 F.2d 1141 (5th Cir. 1973).
A review of the cases cited above reveals that in those instances where courts have found a violation of a plea agreement, a prosecuting attorney has taken some action which clearly stated his position or personal opinion in regard to the sentence to be imposed, and the position or opinion was communicated either directly or indirectly through the pre-sentence report to the sentencing court. In this case, we find nothing in the quoted portions of the transcript which reflect the prosecutor's position or his recommendation as to the sentences in this case. The deputy county attorney declined to make an argument at the mitigation hearing and declined to make a recommendation to the probation officer preparing the pre-sentence report. At no place in the record is there contained a recommendation or a statement of opinion on sentencing by the prosecutor. The quoted portions of the transcript reflect proper cross-examination, testing the credibility of the expert's opinion as previously agreed upon between appellant's counsel and the deputy county attorney. We hold that there was no violation of the plea agreement.
For his second and third issues, appellant asserts that A.R.S. §§ 13-3552 and 13-3508 are so vague in terminology as to render them unconstitutional under the Sixth and Fourteenth Amendments to the United States Constitution. Due process notions of fundamental fairness require that criminal offenses be defined in terms sufficient to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. State v. Varela, 120 Ariz. 596, 587 P.2d 1173 (1978). The underlying principle for the requirement is that no person should be required, at the risk of his liberty, to speculate as to the meaning of a criminal statute. Thus, "a statute which forbids * * * an act in terms so vague that men of common intelligence must...
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