State v. Richard
Decision Date | 25 January 1973 |
Docket Number | No. 2263,2263 |
Citation | 109 Ariz. 65,505 P.2d 236 |
Parties | The STATE of Arizona, Appellee, v. Glen Harlan RICHARD, Appellant. |
Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., by Peter M. Van Orman, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender, by Anne Kappes, Deputy Public Defender, Phoenix, for appellant.
This is an appeal from a judgment of guilt after a guilty plea to the crime of child molesting, § 13--653 A.R.S., and a sentence thereon of from 15 to 20 years. We are asked to answer the following questions on appeal:
1. Did the State fail to keep its part of a plea bargain agreement?
2. Is the defendant precluded from raising on appeal alleged defects in a plea of guilty when he had an opportunity to do so before the trial court and failed to do so?
The facts necessary for a determination of this matter on appeal are as follows. After a preliminary hearing, the defendant was held to answer to the charge of child molesting. On 24 September 1969, the defendant appeared in court to change a previous plea of not guilty to guilty to the information as filed. The following transpired:
(Discussion held off the record.)
'THE COURT: On the record.
'A. 49.
'
'
'
'
The court, on 23 October 1969, sentenced the defendant to not less than 15 nor more than 20 years and notified the defendant of his various appeal rights.
The day after the sentence, defendant filed a motion for leave to withdraw the plea of guilty or in the alternative a motion for new trial. The court did not become aware of the motion until 5 February 1970 and on 6 February, by minute entry, ordered nunc pro tunc denying the motions.
Over eight months later, the defendant, on 23 October 1970, filed a motion for reconsideration of his motion to withdraw his plea, supported by an affidavit. The trial court vacated the minute entry order of 6 February 1970 and set the matter for hearing on 2 November 1970 and on that date, after a hearing, counsel continued to 16 November 1970 for an evidentiary hearing. At that hearing, testimony concerning the plea bargain was received. The former Deputy County Attorney testified:
'And subsequent thereto, I did recommend probation to the probation officer. * * *'
Mr. Wolfram, the attorney for the defendant at the time of the sentencing, testified as follows:
'
The defendant testified on cross-examination as follows:
'
The court also asked the defendant:
At the conclusion of the hearing to set aside the guilty plea, the Deputy County Attorney stated:
'Pursuant to Mr. Chester's agreement with counsel for the defense, the State has no argument in opposition to his motion.
'The State, however, at this time wishes to make clear and reiterate, for the record, that the State does not join in the defense's motion, but merely is--pursuant to the stipulation entered into by Mr. Chester--does not oppose the motion before this Court.'
The United States Supreme Court has made it clear that the State is bound by a plea bargain which induces a guilty plea:
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