State v. Mendiola

Citation23 Ariz.App. 251,532 P.2d 193
Decision Date04 March 1975
Docket NumberCA-CR,No. 1,1
PartiesSTATE of Arizona, Appellee, v. Kay Lynn MENDIOLA, Appellant. 826.
CourtCourt of Appeals of Arizona
Bruce E. Babbitt, Atty. Gen., by William J. Schafer, III, Chief Counsel Crim. Div. Asst. Atty. Gen., Phoenix, for appellee
OPINION

HAIRE, Chief Judge, Division 1.

This is an appeal from judgments of conviction and sentences imposed on appellant following her pleas of guilty to charges of burglary, second degree, and grand theft. Her pleas of guilty resulted from a written plea bargain calling for the dismissal of three other pending charges against her.

Appellant was represented at all proceedings in the trial court, and is represented on this appeal by the Maricopa County Public Defender. Such counsel has filed a brief in this Court pursuant to the provisions of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) raising an issue concerning the failure of the trial court to personally address the appellant and establish a factual basis for the plea pursuant to Rule 17.3, Rules of Criminal Procedure, 17 A.R.S. After the filing of counsel's brief, this Court entered an order granting appellant an additional period of time within which to file her own supplemental brief raising any additional points she might choose to bring to this Court's attention. No supplemental brief has been filed.

Rule 17.3, Supra, provides in pertinent part as follows:

'Before accepting a plea of guilty or no contest, the court shall address the defendant personally in open court and determine . . . that there is a factual basis for the plea.'

At the time the guilty pleas were accepted by the Court, the only questions addressed to the defendant having to do with the factual basis for the pleas were as follows:

'THE COURT: Are you telling me as a matter of fact, you have actually committed or taken part in a burglary in the second degree?

DEFENDANT MENDIOLA: Yes.

'THE COURT: Where was that, ma'am?

'DEFENDANT MENDIOLA: Pardon?

'THE COURT: Where was that?

'DEFENDANT MENDIOLA: Here in Phoenix.

'THE COURT: I mean what place?

'DEFENDANT MENDIOLA: 2212 East Mitchell.

'THE COURT: What?

'DEFENDANT MENDIOLA: 2212 East Mitchell.

'THE COURT: East Mitchell?

'DEFENDANT MENDIOLA: Yes.

'THE COURT: What is there?

'MR. TUCKER: It's a residence, Your Honor.

'THE COURT: And you tell me you have also taken part in a grand theft?

'DEFENDANT MENDIOLA: Yeah.

'THE COURT: And where was that, ma'am?

'DEFENDANT MENDIOLA: Same place.'

In reviewing the above testimony, we find a minimal compliance with Rule 17.3 concerning the establishment of a factual basis for the plea of guilty to the burglary, inasmuch as facts are established showing that the appellant participated in the burglary of a residence located at 2212 East Mitchell in Phoenix, Arizona. However, the showing of a factual basis for the charge of grand theft through the answers of the defendant at the plea proceeding is obviously defective, since no facts are shown other than that the alleged grand theft occurred at the same place. There is no showing as to what property was taken, the value thereof, or any other circumstances relating to the alleged theft.

While the trial judge did not at the time of the acceptance of the plea of guilty to the grand theft charge bring forth facts constituting a factual basis for the plea of guilty to that charge, other portions of the record do establish that in fact there was a factual basis for the plea. The complaint and information specified a theft of five $100 bills. Appellant admitted to the probation officer that she stole this money from the home of her uncle (the house which was burglarized), and this is reflected in the probation officer's report which is part of the record. When the Complete record is considered, there is established a factual basis for the plea, and therefore there has been no violation of the appellant's Constitutional rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See also State v. Tucker, 110 Ariz. 270, 517 P.2d 1266 (1974); State v. Vasquez, 21 Ariz.App. 445, 520 P.2d 539 (1974).

The issue which this Court must decide is whether under the circumstances of this case the failure of the trial judge to establish on the record a factual basis for the plea of guilty to the grand theft charge while personally addressing the defendant, constitutes error of such dimension as to require reversal. We hold that it does not.

In arriving at this conclusion we recognize that a contrary result has been reached by Department A of this Court in State v. Rodriguez, 22 Ariz.App. 478, 528 P.2d 864 (1974), review granted February 4, 1975. Cf. State v. Bates, 22 Ariz.App. 613, 529 P.2d 1207. However, while we agree with Department A that error has been committed, for the reasons hereinafter set forth we do not believe that such error automatically mandates reversal.

At the time of the guilty plea hearing appellant was represented by counsel who had an opportunity to bring this omission to the trial court's attention, but failed to do so. In our opinion when a plea bargain has been reached and counsel for both the state and the defendant are present in Court for the purpose of consummating that agreement by obtaining the Court's acceptance of the bargained-for guilty plea, counsel for both the state and the defendant have an affirmative duty to assist the Court to the end that the appropriate procedural requirements are met. The appellate courts of this state have repeatedly held that counsel may not stand mute and not make known their objections, and then urge on appeal that the trial judge committed error in the admittance of unobjected to evidence. Brooker v. Canny, 103 Ariz. 529, 446...

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27 cases
  • State v. Snodgrass
    • United States
    • Arizona Court of Appeals
    • 7 Septiembre 1977
    ...and/or through an examination of the extended record. State v. Rodriguez, 112 Ariz. 193, 540 P.2d 665 (1975); State v. Mendiola, 23 Ariz.App. 251, 532 P.2d 193 (1975), adopted and approved as the opinion of the Arizona Supreme Court, 112 Ariz. 165, 540 P.2d 131. However, a plea to the charg......
  • State v. Pharis
    • United States
    • Arizona Court of Appeals
    • 15 Agosto 2014
    ...asked the parties what else it needed to address, but Pharis never raised his supplemental issues. Cf. State v. Mendiola, 23 Ariz. App. 251, 253, 532 P.2d 193, 195 (1975) (discussing duty to assist court and "not stand mute"). And, despite the potential factual disputes concerning the truth......
  • State v. Draper
    • United States
    • Arizona Court of Appeals
    • 14 Junio 1988
    ... ... The presence of this factor in the case gives us great concern. As noted in Cornwall, both counsel have an affirmative duty to advise the court at the change of plea hearing of any additional agreements not embodied in the written plea agreement. See also State v. Mendiola, 23 Ariz.App. 251, 253, 532 P.2d 193, 195, aff'd 112 Ariz. 165, 540 P.2d 131 (1975) ...         Based on the record before us, it is not absolutely clear that if the trial judge had made the express inquiry as to whether there were any other terms or conditions to the plea agreement ... ...
  • State v. Sutton
    • United States
    • Arizona Supreme Court
    • 6 Junio 1977
    ...as given by the trial court, he waived any possible error. 17 A.R.S., Rules of Criminal Procedure, Rule 21.3(c); State v. Mendiola, 23 Ariz.App. 251, 532 P.2d 193 (1975). In the case of State v. Stevenson, 101 Ariz. 254, 418 P.2d 591 (1966), we did not hold that the court's charge to the ju......
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