State v. Muldoon
| Decision Date | 15 December 1988 |
| Docket Number | No. CR-87-0172-AP,CR-87-0172-AP |
| Citation | 159 Ariz. 295,767 P.2d 16 |
| Parties | STATE of Arizona, Appellee, v. Rick Dale MULDOON, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Robert S. Golden, Asst. Atty. Gen., Phoenix, for appellee.
Dean W. Trebesch, Maricopa County Public Defender, Stephen M.R. Rempe, James L. Edgar, Deputy County Public Defenders, Phoenix, for appellant.
Appellant, Ricky Dale Muldoon, pled guilty to two counts of attempted molestation of a child in violation of A.R.S. §§ 13-1001, -1410, -3821, and -604.01. He received lifetime probation on count one and fifteen years imprisonment with lifetime parole on count two. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3).
On January 3, 1986, Muldoon molested a four-year-old girl. The State charged Muldoon with two counts of molestation of a child, which is a class 2 felony and a dangerous crime against children. On March 14, 1986, Muldoon entered into a written plea agreement. He pled guilty to count one in exchange for a stipulated, mitigated, minimum sentence of 12 years and a dismissal of count two. In a memorandum decision, the Arizona Court of Appeals remanded the case to the Maricopa County Superior Court for an evidentiary hearing to determine whether Muldoon knew at the time he entered his plea that A.R.S. § 13-604.01(I) required him to be on lifetime parole after serving his sentence.
On March 27, 1987, the Maricopa County Superior Court held an evidentiary hearing, found that Muldoon did not understand the lifetime parole provision, granted his request to withdraw from the plea agreement, and reinstated the original two charges. On May 18, 1987, Muldoon entered into a second plea agreement. He pled guilty to amended charges of two counts of attempted molestation of a child, which is a class three felony and a second-degree dangerous crime against children. The plea agreement stipulated to and Muldoon received lifetime probation without early termination on count one and fifteen years imprisonment with lifetime parole 1 on count two.
Pursuant to A.R.S. § 13-604.01(J), "the sentence imposed on a person by the court for a dangerous crime against children in the first or second degree shall be consecutive to any other sentence imposed on the person at any time" (emphasis added).
Ariz.R.Crim.P. 17.2(b) provides:
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 nature and range of possible sentence for the offense for which the plea is offered, including any special conditions regarding sentence, parole, or commutation imposed by statute.
Muldoon now claims that he did not voluntarily and intelligently enter his plea of guilty because the trial judge failed to inform him of the mandatory consecutive sentencing requirement. He seeks to have this Court set aside the judgment and sentences imposed, vacate the plea agreement, and reinstate the original charges. The State contends that probation is not a "sentence" and therefore Muldoon received only one sentence. Thus, according to the State, Muldoon did not need to know about the mandatory consecutive sentencing statute in order to enter a valid plea agreement.
The parties filed this appeal directly in this Court. We elected to exercise our discretionary power to accept jurisdiction under Ariz. Const. art. 6, § 5(3). To provide assistance and guidance to members of the Bar in future cases, we note that under A.R.S. § 13-4031, a defendant does not have the right to appeal directly to this Court unless a court actually imposes a sentence of death or life imprisonment. State v. Shattuck, 140 Ariz. 582, 584, 684 P.2d 154, 156 (1984). Parties challenging actions involving probation, parole, or a term of imprisonment for less than life shall appeal to the court of appeals. See A.R.S. § 12-120.21. Regarding the merits of Muldoon's claim, Rule 17.2(b) provides that the trial judge must inform the defendant of any special conditions regarding sentencing. The mandatory consecutive sentencing provision of A.R.S. § 13-604.01(J) is a special condition for the purposes of Rule 17.2(b). 2
As the State argues, however, there is a difference between a sentence and an order imposing probation. Probation is not a sentence. State v. Barksdale, 143 Ariz. 465, 468, 694 P.2d 295, 298 (Ct.App.1984). A sentence is a judicial order requiring a defendant convicted in a criminal case to presently suffer a specified sanction such as incarceration, monetary fine, or both. Probation is a judicial order allowing a criminal defendant a period of time in which to perform certain conditions and thereby avoid imposition of a sentence. With probation, the imposition or execution of sentence is...
To continue reading
Request your trial
-
State v. McCuin
...§ 13-603. The legislature has made no other "punishments" available as part of the sentencing procedure. Moreover, in State v. Muldoon, 159 Ariz. 295, 767 P.2d 16 (1988), our supreme court distinguished even probation from traditional As the State argues, however, there is a difference betw......
- State v. Dunlap
-
State v. Mobley, 6-337571
...311, 491 A.2d 276 (1985); Yates v. State, 792 P.2d 187, 189 (Wyo.1990); holding that probation is a sentence, with State v. Muldoon, 159 Ariz. 295, 298, 767 P.2d 16 (1988); Addison v. State, 452 So.2d 955, 956 (Fla.App.1984); People v. Boucher, 10 Ill.App.3d 750, 751, 295 N.E.2d 334 (1973);......
-
State v. Uriarte, 1 CA-CR 97-0351.
...by the court following a judgment of guilt against a defendant, it is not part of the sentence of imprisonment. State v. Muldoon, 159 Ariz. 295, 298, 767 P.2d 16, 19 (1988) ("A sentence is a judicial order requiring a defendant convicted in a criminal case to presently suffer a specified sa......