State v. Rogers, 1

Decision Date15 November 1965
Docket NumberCA-CR,No. 1,1
Citation407 P.2d 773,2 Ariz.App. 232
PartiesSTATE of Arizona, Appellee, v. Neil K. ROGERS, Appellant. 44.
CourtArizona Court of Appeals

Darrell F. Smith, Atty. Gen., by Gary K. Nelson, Asst. Atty. Gen., for appellee.

David L. Grounds and James Moeller, Phoenix, for appellant.

STEVENS, Chief Judge.

The issues presented to this Court involve procedural matters in relation to a plea of guilty to an information which did not state a public offense and the subsequent motion to amend the information. Mr. Grounds represented the appellant Rogers in the trial court as well as in relation to this appeal. The facts are stated in the appellant's brief form which we quote:

'Defendant was originally charged in three separate complaints in Mohave County, Arizona, each alleging grand theft. A preliminary hearing on one of the complaints was held in the Justice Court of Kingman Precinct with counsel present. Defendant was bound over on that complaint. Thereafter, present counsel was appointed by the court to continue the representation of defendant, the court having determined that defendant was an indigent. On March 2, 1965, preliminary hearings in the remaining two complaints were to be held. On that date, as a result of a discussion among the County Attorney, defendant, and defense counsel, the defendant agreed that he would enter a plea of guilty to one information of grand theft, with the understanding that the County Attorney would dismiss the other two charges and would refrain from alleging a prior felony conviction. Thereupon, on March 2, 1965, defendant waived preliminary hearing on two of the complaints, informations were immediately prepared and filed in Superior Court, defendant entered a plea of guilty to information No. 2172 which alleged that the defendant did, on or about the 29th day of November, 1964, 'unlawfully take, steal, and carry away property belonging to the Cerbat Mining and Milling Company of a value of more than $100, specifically certain electric motors'.

* * *

* * *

'Defendant did not enter the plea of guilty on advice of counsel, although he did discuss it with him as it was counsel who communicated the offer of the County Attorney to defendant.'

The Reporter's Transcript of the arraignment discloses that there was some discussion as to whether the other two cases, being numbers 2168 and 2173, should be disposed of by dismissing the information in each case or quashing the information in each case and Mr. Grounds stated that it was his preference that the order be one of dismissal. The Court then entered an order dismissing the information in each case. This Court is not informed as to whether or not either of the information dismissed stated a public offense or as to how it came to pass that Case No. 2172 was selected for the plea of guilty.

'The court then set the date of April 6, 1965 for passing judgment and sentence, and set a presentence hearing for that same date. That setting was later continued until April 26, 1965. On April 23, 1965, defendant moved to withdraw his plea of guilty and enter a plea of not guilty and, in connection therewith, tendered to the court the sworn affidavit of one Robert M. Cobb, Jr., to the effect that he (Cobb) had been present at a conversation between defendant and one Phil Champagne, the complaining witness, in which Champagne gave defendant permission to sell some of the mining equipment at the mine location in Kingman and specifically gave permission to sell some spare electric motors. Also in support of this motion to withdraw his plea, defendant pointed out to the court that the information to which the plea had been entered was fatally defective in that it did not describe with sufficient particularity the property alleged to have been stolen.

'A hearing on the motion to withdraw the plea was held on April 26, 1965. Defendant testified that his reason for entering the guilty plea on March 2, 1965, was that he 'had no means whatsoever of substantiating my innocence in the matter' and that he had entered into the agreement knowing that if he entered a guilty plea his prior felony conviction would not be alleged which he understood would have subjected him to a possibly greater punishment. He further testified that at the time he entered the plea he was completely unaware of the existence of the Cobb evidence and testimony as he had completely forgotten about it and had no knowledge of it at that time.

'The court denied the motion to withdraw the plea of guilty. The court stated as his reasons for doing so:

'I do so with reluctance. I necessarily find it a fact that I do not believe that the defendant is telling the truth in this particular matter of evidence, and I must do so in order to deny it. I believe that as a common thing having such defense he would actually have known about it and would have disclosed it to his counsel if it had been. The motion will be denied.'

'Thereupon the County Attorney, conceding that the information to which the plea was entered was defective, moved to amend it and tendered an amended information specifically describing some sixteen electric motors by manufacturer, rating, and serial number. The court granted the amendment over the defendant's objections. The County Attorney took the position that no new plea to the amended information was to be permitted; defendant contended he had a right to plead to it. The court ruled that no new plea was necessary or allowable, and that the guilty plea to the original information stood 'without modification'.'

While the court was considering the matter of permitting Mr. Rogers to withdraw his plea of guilty, the County Attorney urged that the defendant's attorney stipulate that he had traveled from Phoenix to Kingman to attend the preliminary hearing, that it was a matter of accommodation to him to expedite the matter including the filing of the information, and that the County Attorney did not then have all of the details readily available. The Attorney for the defendant did not deny these statements but urged:

'I am afraid to stipulate to Mr. Schimmelpfenning's stipulation. I would not waive some of the rights of the Defendant on appeal.'

When the County Attorney moved for leave to file the amended information he stated:

'As I have stated to the Court, the reason it was not listed in the first place was to accommodate counsel. * * * I mady my bargain with Mr. Rogers and Mr. Grounds, and I intend to keep it unless at a future time it becomes necessary to----'

On behalf of the defendant his attorney stated:

'At the time of the entry of the plea it was our fullest intention to go through with it, and I think the Defendant should be allowed to pursue every avenue available for him. The Defendant acted in good faith.'

At the same hearing Mr. Grounds urged upon the court in relation to causes No. 2168 and 2...

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15 cases
  • State v. McCormick, 2
    • United States
    • Arizona Court of Appeals
    • June 18, 1968
    ...do not consider ourselves bound by the confession of error. State v. Stewart, 3 Ariz.App. 178, 412 P.2d 860 (1966); State v. Rogers, 2 Ariz.App. 232, 407 P.2d 773 (1965). Since under the holding of State v. Superior Court, etc., 102 Ariz. 588, 435 P.2d 485 (1968) the indictment returned by ......
  • State v. Mallory
    • United States
    • Arizona Court of Appeals
    • December 21, 1972
    ...the case which most closely appears to apply the Kuhnley rule to grand theft charges is the case by this Court being State v. Rogers, 2 Ariz.App. 232, 407 P.2d 773 (1965). In Rogers the defendant urged the application of the Kuhnley specificity rule in relation to a grand theft information.......
  • State v. Martin
    • United States
    • Arizona Court of Appeals
    • January 25, 1966
    ...or about' appears sufficient. Rule 118, Arizona Rules of Criminal Procedure. This Court has reviewed the case of State v. Rogers, 2 Ariz.App. 232, 407 P.2d 773, 776 (1965), which '* * * that where an amended information is filed as distinguished from an amendment to an information * * * the......
  • State v. Gumm
    • United States
    • Idaho Supreme Court
    • October 23, 1978
    ...must name or describe the property charged to have been stolen. State v. Elmore, 126 Mont. 232, 247 P.2d 488 (1952); State v. Rogers, 2 Ariz.App. 232, 407 P.2d 773 (1965). The information here in question charged Gumm wilfully, knowingly, intentionally, unlawfully, feloniously and without d......
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