State v. McVay, 4604-2
| Decision Date | 04 February 1982 |
| Docket Number | No. 4604-2,4604-2 |
| Citation | 641 P.2d 857,131 Ariz. 369 |
| Parties | STATE of Arizona, Appellee, v. Loris Lee McVAY, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by William J. Schafer III and David R. Cole, Asst. Attys. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender by James R. Hart II, Deputy Public Defender, Phoenix, for appellant.
On 2 March 1979, defendant Loris Lee McVay was sentenced to death for first degree murder. This court reversed the conviction on 4 December 1980. State v. McVay, 127 Ariz. 450, 622 P.2d 9 (1980). On remand, defendant pled guilty to first degree murder pursuant to a plea agreement. After denying defendant's subsequent motion to withdraw his guilty plea, the trial court sentenced defendant to life imprisonment on 10 April 1981. We have jurisdiction of this appeal pursuant to A.R.S. § 13-4031.
Defendant raises the following issues regarding his resentencing:
1. Was it improper to resentence defendant without aid of an updated presentence report?
2. Was the trial court's failure to advise defendant of his constitutional rights reversible error?
3. Was the failure of the trial court to inform defendant of the range of possible sentences reversible error?
4. Was there an adequate factual basis for the guilty plea?
The facts necessary to a determination of these issues are as follows. On 2 December 1977, defendant took a .22 caliber derringer belonging to a friend and went to the home of the victim, Thomas "Pappy" Pitts. He shot the victim in the head and fled on the victim's motorcycle. Defendant was apprehended and convicted of first degree murder in violation of former A.R.S. §§ 13-451 and 13-452 and sentenced to death under former A.R.S. §§ 13-453(A) and 13-454. While his appeal was pending, he was convicted of dangerous or deadly assault by prisoner in violation of A.R.S. § 13-1206 for which he was sentenced to
[131 Ariz. 371] life imprisonment to be served consecutively to the sentence for which he was imprisoned as provided by statute, A.R.S. § 13-1206. We reversed defendant's murder conviction and granted him a new trial. See State v. McVay, supra. On 11 March 1981, prior to retrial, defendant entered a plea of guilty to first degree murder. His later motion to withdraw the plea was denied, and on 11 April 1981, defendant was sentenced to life imprisonment.
Defendant argues that the matter must be remanded for resentencing because he was resentenced without the benefit of an updated presentence report, in violation of Rule 26.4(a), Arizona Rules of Criminal Procedure, 17 A.R.S. The rule states:
We find no error for two reasons. First, a presentence report was not necessary as one had been prepared prior to the sentencing on 15 February 1979, following defendant's jury trial conviction. The report, which was some 16 pages long, thoroughly reviewed the crime and investigation, defendant's prior record, personal history, mental health, and the sentencing recommendations of various individuals. There are no indications of changes in circumstances which would require a new report to be prepared, State v. Blier, 113 Ariz. 501, 557 P.2d 1058 (1976), nor did the attorneys request one. See also Comment to Rule 26.4(a) which states that a presentence report is not required when:
"previous pre-sentence reports make a new one unnecessary, such as where the case is remanded for sentencing or new trial. * * * "
See also Comment to § 4.1(b), ABA Standards Relating to Sentencing Alternatives and Procedures (Approved Draft, 1968) at 204-207.
Second, Rule 26.4 does not require a presentence report where the court has no discretion in the sentence to be imposed. By the terms of the plea agreement, the defendant was to receive life imprisonment. The court's only exercise of discretion was to accept or reject the plea agreement. Although ordering an updated presentence report may have been the better practice, once the court accepted the plea agreement, an updated report was unnecessary. The sentence, as a result of the plea agreement, was life regardless of the existence and contents of a later presentence report. We find no error.
Defendant contends that his guilty plea was involuntary for two reasons. First, he contends that the trial court did not specifically inform him of his rights to a jury trial, to confront his accusers, and to not incriminate himself as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
At the time of the plea, defendant was addressed by the court as to his understanding of the agreement and the plea he was entering. The following transpired:
Rule 17.2, Arizona Rules of Criminal Procedure, 17 A.R.S., reads as follows:
a. The nature of the charge to which the plea is offered;
c. The constitutional rights which he foregoes by pleading guilty or no contest, including his right to counsel if he is not represented by counsel; and
d. His right to plead not guilty."
We agree with defendant that the trial court did not specifically inform the defendant of all the rights he was waiving at the time of the plea. We do not believe, however, that the plea was involuntary or unknowing. If it is apparent that the defendant did, in fact, know the rights he was waiving, then the failure of the trial court to strictly follow the mandates of Rules 17.2 and 17.3 does not prejudice the defendant. State v. Darling, 109 Ariz. 148, 506 P.2d 1042 (1973). We have stated:
" * * * We have held, however, that if it can be ascertained from an examination of the extended record that the defendant was otherwise aware of the information the trial judge is required to but failed to advise him of, the judge's error shall be regarded as technical rather than reversible. * * * " State v. Levario, 118 Ariz. 426, 427, 577 P.2d 712, 713 (1978).
In the instant case, defendant signed an agreement which waived basic constitutional rights as set forth in Rule 17.2. He acknowledged in open court that they had been explained to him by his attorney, that he understood them, and that he had voluntarily signed the waiver. The judge emphasized to him that he would not have a jury trial and that he would be incriminating himself by pleading guilty. Furthermore, it is evident that the defendant was aware of his right to plead not guilty, his right to counsel, and his right to confront his accusers, since he had already been to trial on this matter. State v. Lopez, 27 Ariz.App. 626, 557 P.2d 558 (1976). When it may be ascertained from an expanded record that the defendant was aware of his rights, the trial judge's failure to recite the litany of his waiver is not reversible error. State v. Darling, supra; State v. Levario, supra.
Defendant also urges that his plea was involuntary because the trial judge failed to advise him of the range of possible sentences. Rule 17.2(b), Arizona Rules of Criminal Procedure, 17 A.R.S. Rule 17.2 states in part "Before accepting a plea of guilty or no contest, the court shall address the defendant personally in open court, informing him of and determining that he understands the following:
Defendant's previous life sentence for the assault committed in prison was ordered to run consecutively to his sentence for the murder of "Pappy" Pitts. He now contends that the court's failure to advise him of the possibility of consecutive...
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