State v. Myers
| Decision Date | 29 June 1970 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 471 P.2d 294,12 Ariz.App. 409 |
| Parties | The STATE of Arizona, Appellee, v. Louise Mildred MYERS, Appellant. 265. |
| Court | Arizona Court of Appeals |
Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Public Defender, by James H. Kemper, Asst. Public Defender, Phoenix, for appellant.
Defendant, Louise Mildred Myers, was informed against on three counts--two counts of credit card forgery, and a count of obtaining property by false pretenses, as amended. Defendant plead not guilty to all counts. Some time thereafter, defendant plead guilty before the court to the third count, apparently in exchange for dismissal of the other two charges. She was then sentenced to not less than one nor more than three years. She appeals that determination.
Defendant makes three allegations of error:
(1) Defendant in fact never plead guilty.
(2) Defendant's plea was involuntary under Boykin v. Alabama.
(3) Defendant was not charged under the proper statute.
We take these allegations in order.
First, defendant contends that the record shows that she never actually plead guilty. The State agrees that the record does not reflect, in so many words, that defendant plead guilty.
We have read the transcript and agree that defendant never said 'I plead guilty.' However, for purposes of the hearing, we do not believe the overall proceeding left any doubt but that defendant was before the judge to change her plea. Her counsel asked her:
'* * * is it not so, Mrs. Myers, you indicated to me you wish to plead guilty to the offense of confidence game.
The Defendant: Yes.'
We therefore must reject defendant's contention here.
Defendant secondly contends that her plea was involuntarily elicited and thus her conviction is reversible under the mandate of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
In Boykin, the United States Supreme Court held that the record in a criminal conviction based on a guilty plea must reveal that the plea was voluntary. However, in State v. Brown, 9 Ariz.App. 323, 451 P.2d 901 (1969), we pointed out that when a plea is a result of a plea bargain, as in the instant case, the defendant must first petition the trial court to set aside his plea. We believe this is necessary here because if defendant now wants to relinquish her plea bargain and open the dismissed charges against her, she, and not this court, must so decide. Defendants involved in plea bargains should not labor under the misconception that if their bargained guilty plea is set aside they are free of all charges. At best, they may be free of their bargain.
We therefore refuse to review defendant's contention as to Boykin defects.
Thirdly, defendant argues that she was charged under the wrong statute. She was charged under A.R.S. § 13--312, a general criminal statute dealing with the obtaining of property by false representation. Defendant testified at her plea hearing:
...
To continue reading
Request your trial
-
People v. Strickland, Docket No. 28472
...New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), United States v. Wells, 430 F.2d 225 (CA 9, 1970), and State v. Myers, 12 Ariz.App. 409, 471 P.2d 294 (1970). It should be emphasized that all the preceding citations are to cases which, like the present one, involved two or more ......
-
State v. Russo
...in the same posture they occupied before the bargain was struck. Cf. Kiefer v. State, Fla.App.1974, 295 So.2d 688; State v. Myers, 12 Ariz.App. 409, 471 P.2d 294 (1970); United States ex rel. Williams v. McMann, 436 F.2d 103 (2nd Cir. 1970). We note that there is respectable authority on bo......
-
State v. Rhein
...United States v. Wells, 430 F.2d 225, 230 (9 Cir. 1970); People v. Baron, 264 N.E.2d 423, 425 (Ill.App.1970); State v. Myers, 12 Ariz.App. 409, 471 P.2d 294, 295 (Ct.App.1970); State v. Brown, 9 Ariz.App. 323, 451 P.2d 901, 904 The judgment denying post-conviction relief is reversed, as are......
-
State v. Reidhead, 1
...on the grounds that the defendant has waived this issue on appeal by not moving to set aside his admission, citing State v. Myers, 12 Ariz.App. 409, 471 P.2d 294 (1970). While Myers held that a defendant must move to set aside a plea to preserve issues for appeal, this holding was specifica......