State v. McFord
| Decision Date | 24 March 1977 |
| Docket Number | CA-CR,Nos. 1,s. 1 |
| Citation | 564 P.2d 935,115 Ariz. 246 |
| Parties | STATE of Arizona, Appellee, v. Leonard Lester McFORD, II, Appellant. 2055 and 1 2440--PR. |
| Court | Arizona Court of Appeals |
Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, Chief Counsel, Criminal Division, Lynn Hamilton, Asst. Atty. Gen., Phoenix, and J. Michael Flournoy, Coconino County Atty. by William A. Flick, Deputy County Atty., Flagstaff, for appellee.
Aspey, Watkins & Diesel by Harold L. Watkins, Flagstaff, for appellant.
The main issue in this case is whether the State has performed its promises made to appellant which were incorporated into a plea agreement.
The crime occurred on August 18, 1975, near Flagstaff, Arizona. The appellant, Leonard McFord, and a companion, William McCallister, stopped their car at a service station for oil. McCallister pulled a gun on the service station attendant, Robert Baker, and robbed him of approximately $35.00. Baker was then forced into the car driven by McFord and taken to a remote area where he was shot six times and killed by McCallister. Both McCallister and McFord were charged with first-degree murder. Pursuant to a written plea agreement, McCallister pled guilty to first-degree murder and was sentenced to life imprisonment. One of the terms of the plea agreement was that McCallister would be assured of transfer to an out-of-state prison to serve his sentence. This was carried out. McFord pled guilty to second-degree murder pursuant to a written plea agreement, the relevant details of which are considered in this opinion, and was sentenced to not less than 15 nor more than 20 years 'in the Arizona State Prison or such other penal institution as might be arranged for by the Arizona Department of Corrections.' McFord contends in this review that he too should be sent out of state to serve his sentence instead of the state prison at Florence, Arizona, where he is presently incarcerated. Failing this, he contends his sentence and plea should be set aside.
Fears for his personal safety, stemming from being an informer for the State in other crimes, prompted McFord to seek an agreement that he serve his sentence out of state. Unlike the firm promise made by the State to McCallister concerning out-of-state transfer, the plea agreement made with McFord promised only that the State would try to persuade the Arizona Department of Corrections to send him out of state. The precise wording of the pertinent part of this agreement is:
The State of Arizona will endeavor to pursuade (sic) the Department of Corrections to allow Leonard Lester McFord to serve his sentence hereunder in an institution other than the Arizona State Prison. In this regard, the Coconino County Attorney's Office will write such letters to and make personal appearances before the Department of Corrections as may be necessary to attempt to accomplish this end.
McFord filed a timely notice of appeal to this court from the judgment of conviction and sentence. Thereafter, following his transfer to the state prison at Florence, he filed a petition for writ of habeas corpus, seeking an order of the Coconino County Superior Court that the State be required to specifically perform the terms of the plea agreement and that he be removed from the state prison and turned over to a facility outside of the State of Arizona. Alternatively, he requested that he be allowed to withdraw his plea of guilty. A hearing on the petition for writ of habeas corpus was held on August 3, 1976, before Honorable J. Thomas Brooks, Judge of the Coconino County Superior Court. At the hearing the court elected to treat the petition as seeking post-conviction relief, pursuant to Rule 32.3 of the Rules of Criminal Procedure. Considerable testimony was taken at this hearing as to whether the terms of the plea agreement had been carried out. Judge Brooks denied relief both as to habeas corpus as well as post-conviction relief. In doing so, the court found that there had been no violation of the plea agreement. On review, we now consolidate the petition for review with the appeal and consider all issues in our decision.
Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427, 433 (1971) holds:
(W)hen a plea rests in any significant degree on a promise or agreement of the prosecutor, that it can be said to be part of the inducement or consideration, such promise must be fulfilled.
Was the agreement fulfilled in this case? We think the trial court had sufficient evidence before it to find that it was, although we hereafter state our disapproval of the use of a 'best efforts' type of plea agreement in criminal cases.
We have already quoted the wording of the agreement as it relates to what 'the State of Arizona' agreed to do. It is clear that the reference to 'the State of Arizona' must be read to mean the Coconino County Attorney, whose office filed the charges for and on behalf of 'the State of Arizona.' At the plea proceedings on May 4, 1976, the trial court very thoroughly reviewed this agreement with McFord when he entered his plea of guilty to second-degree murder. The text of the portion referring to what the State of Arizona promised to do was read aloud by the trial judge, who then said:
My interpretation would be that there is no absolute guarantee that you would serve your sentence outside the State of Arizona, but that any and all reasonable attempt would be made in this regard by the State. Is that your understanding?
The evidentiary hearing which took place on August 3, 1976, was initiated by petition for writ of habeas corpus filed by counsel for McFord. The allegations contained therein stated that a good faith effort had not been made by the State of Arizona to comply with the plea agreement. No specific mention was made as to whether the Department of Corrections was either bound under or failed to act in accordance with the agreement. The petition was followed by a handwritten letter addressed by McFord to the trial judge. In the letter, McFord stated several times that he felt the 'County' and the 'County Attorney' had failed to live up to the agreement. No contention was made that the Department of Corrections had either been bound to act under the agreement or had failed to live up to it. It was not until the hearing began that it became clear that McFord's claim was based not on something that the County Attorney had failed to do, but rather upon the decision of the Department of Corrections to retain McFord as a prisoner in the state prison at Florence. In fact, the hearing began with the statement by the County Attorney that he had been advised by counsel for McFord that the County Attorney's Office had done its part in the plea agreement 'and apparently the problem is...
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