State v. Rodriguez, 1
| Decision Date | 27 September 1977 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 117 Ariz. 70,570 P.2d 1083 |
| Parties | The STATE of Arizona, Appellee, v. Guadalupe B. RODRIGUEZ, Appellant. 2352. |
| Court | Arizona Court of Appeals |
The appellant/defendant, Rodriguez, was charged by grand jury indictment with three counts of sale of a narcotic drug, in violation of A.R.S. §§ 36-1001 and 36-1002.02. Appellant was arraigned and pled not guilty on July 13, 1976. His trial was set for September 22, 1976.
On September 20, 1976, pursuant to a request from appellant's counsel and the Maricopa County Attorney's Office, the trial date was vacated and the matter was set for a change of plea September 29, 1976. On that date, pursuant to a plea agreement, appellant pled guilty to the first two counts of the indictment with the understanding that the county attorney's office would dismiss the third count of the indictment at the time of sentencing. The plea agreement, 1 also, contained the written statement that there was "no agreement concerning sentence." Appellant's guilty pleas were accepted, and sentencing was set for October 28, 1976.
Appellant was sentenced to not less than eight nor more than fifteen years in the Arizona State Prison. The sentence was to run from the day of sentencing. Appellant has been represented throughout all proceedings, including this appeal, by the Maricopa County Public Defender's Office.
Appellant here argues that the Maricopa County Attorney failed to live up to the guilty plea agreement when the county attorney made a recommendation of the minimum prison sentence to the probation officer for the pre-sentence report, and that for this reason appellant's pleas should now be vacated.
The appellant relies on Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), for the support of his argument, along with the paragraph from the transcript of record, infra.
Santobello, supra, turned on the fact that the prosecutor agreed to make no recommendation to the court on a sentence, and then in actuality did make a recommendation to the court for the maximum sentence. In the instant case, the plea bargain provided that there was "no agreement concerning sentence."
It is important to note that the written statement "no agreement concerning sentence," contained in the written plea agreement, is not synonymous with the statement proposed by appellant's argument "no recommendation as to sentence."
This Court takes the position that when the deputy county attorney wrote "no agreement concerning sentence" he protected himself from the Santobello, supra, argument proposed in the instant case. If we give the words their ordinary meaning, we can say that when the deputy county attorney writes that he is making "no agreement concerning sentence" it means what it says on its face, the prosecutor is not committing himself either to recommend, or not recommend, to the court a possible sentence, thus leaving himself free to make any recommendation he might later wish to make.
Appellant argues that the following discourse between appellant and the trial court makes evident that the deputy county attorney was agreeing not to make a recommendation as to sentence:
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State v. Georgeoff
...by a prosecutor should be considered fundamental error: State v. Rogel, 116 Ariz. 114, 568 P.2d 421 (1977) and State v. Rodriguez, 117 Ariz. 70, 570 P.2d 1083 (App.1977). The court of appeals discounted the discussion of the issue of waiver in both Rodriguez and Rogel as dicta. Although dic......
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State v. Georgeoff, 1
...or that defendant's actions after he pled made the prosecutor's breach immaterial. 2. Waiver. The state relies on State v. Rodriguez, 117 Ariz. 70, 570 P.2d 1083 (App.1977), in claiming defendant waived the issue of the state's breach. We disagree. The waiver issue in Rodriguez was dictum; ......
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State v. Sasak
...declares that the parties have not agreed to any limitation on the trial court's discretion in sentencing. See State v. Rodriguez, 117 Ariz. 70, 72, 570 P.2d 1083, 1085 (App.1977) (phrase "no agreement concerning sentence" did not require state to remain Nor does the fact that the agreement......
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State v. Romero
...first argues that the defendant's objection was not sufficient to preserve this issue for appeal. It relies on State v. Rodriguez, 117 Ariz. 70, 570 P.2d 1083 (App.1977). In that case the trial judge was not apprised of the conflict between the defendant's understanding of "recommendation" ......