State v. Sasak
| Decision Date | 19 October 1993 |
| Docket Number | Nos. 1,CA-CR,s. 1 |
| Citation | 178 Ariz. 182,871 P.2d 729 |
| Parties | STATE of Arizona, Appellee-Respondent, v. Timothy Lawrence SASAK, Appellant-Petitioner. 90-1265, 1 92-0173-PR and 1 92-0335-PR. |
| Court | Arizona Court of Appeals |
Defendant was indicted and charged with ten felony counts stemming from his operation of a mortgage banking company and numerous real estate limited partnerships. He executed a plea agreement in which he pled guilty to one count of theft and one count of illegally conducting an enterprise. In exchange, the state agreed that if defendant received a prison sentence "[t]he state [would] recommend that ... he should not receive consecutive terms." At sentencing, the state recommended an aggravated prison term of ten years on one count to be followed by a term of probation on the other. The court imposed aggravated, consecutive sentences of ten years on each count, for a total term of twenty years, the maximum permitted by statute.
Defendant now appeals from his convictions and the sentences imposed. In addition, he petitions for review of the denials of his motions for rehearing pursuant to Rule 32, Arizona Rules of Criminal Procedure. Because the issues raised in the petitions for post-conviction relief are identical to the issues raised in the appeal, we have consolidated the proceedings.
We must decide: (1) whether the court erred in finding that the state, by recommending a prison term and a term of probation, complied with the language of the plea agreement stating "[t]he state [would] recommend that [defendant] should not receive consecutive terms"; (2) whether the trial court abused its discretion in failing to consider mitigating factors in sentencing defendant; (3) whether defendant's plea was voluntarily and intelligently made in the absence of advice by the trial court regarding the potential consequences of a guilty plea on his out-of-state probation; (4) whether the trial court failed to adequately disclose a potential conflict of interest; and (5) whether the trial court abused its discretion by imposing a grossly disproportionate sentence.
We conclude that the court's finding of no breach of the plea agreement is not clearly erroneous. We also conclude that the trial court neither abused its discretion by failing to consider in mitigation defendant's remorse and the likelihood of financial recovery nor by imposing consecutive aggravated terms. Finally, we find no merit in defendant's arguments that the judge inadequately disclosed a prior employment relationship or that defendant was not fairly informed of the impact that his plea might have on an out-of-state probation. We, therefore, affirm defendant's convictions and sentences. We grant review but deny relief in the petitions for review.
A grand jury indicted defendant on nine counts of fraudulent schemes and artifices, Ariz.Rev.Stat.Ann. ("A.R.S.") section 13-2310, each a class 2 felony, and one count of illegally conducting an enterprise, A.R.S. section 13-2312, a class 3 felony. The charges against defendant arose from his operation of Avanti Mortgage Corporation ("Avanti"), a mortgage banking firm. Between 1982 and 1988, Avanti established several limited partnerships, whose stated purposes were to make loans secured by real estate. Avanti obtained the funds for the loans by selling shares in the limited partnerships to over three thousand investors.
The evidence before the grand jury revealed that defendant paid unearned loan origination fees to a co-defendant who then "kicked back" approximately 94 percent of the fees to defendant. He also made improper loans to himself from partnership funds and failed to adequately secure certain loans, in violation of the partnership agreements.
Defendant entered into a plea agreement in which he agreed to plead guilty to one count of theft and one count of illegally conducting an enterprise, both class 3 felonies. In exchange, the state agreed to dismiss the remaining counts of the indictment and further agreed to recommend that if defendant was sentenced to prison "he should not receive consecutive terms." The plea agreement also provided that defendant would pay restitution in the amount of $16,506,000, the total principal investment of all investors in the Avanti partnerships. The trial court accepted the plea agreement.
After defendant and state executed the plea agreement, conflicting recommendations were made to the presentence investigator. The prosecutor notified the presentence investigator of the state's recommendation that defendant be sentenced to probation on one count and an aggravated prison term on the other and urged him to recommend acceptance of the plea agreement. James C. Sell, the receiver in a civil action brought against defendant by the Arizona Attorney General, and Richard Witt, a spokesman for the investors in a class action suit against defendant, also wrote letters. They recommended to the presentence investigator that defendant receive maximum consecutive terms of imprisonment.
The trial court held a lengthy mitigation hearing. At the hearing, the prosecutor did not expressly state that if defendant were sentenced to prison, "he [should] not receive consecutive terms." Nevertheless, the prosecutor repeated his recommendation of an aggravated prison term to be followed by a term of probation. Defendant's counsel, however, did not object that the state had failed to make the agreed recommendation. Instead, counsel argued that the state's failure to object to the presentence report, which recommended a mitigated sentence of 3.75 years followed by 5 years on probation, precluded the state from arguing for an aggravated sentence. The trial court overruled the objection, remarking that the state had the right to request whatever sentence it felt was appropriate. The trial court then found a number of aggravating circumstances and imposed maximum ten-year sentences on each count, to be served consecutively. Defendant filed a timely appeal.
We stayed the appeal during the pendency of a petition for post-conviction relief. The sentencing judge, the Honorable Kenneth L. Fields, summarily dismissed three of the five issues raised in the petition. Those issues were defendant's allegations that the trial court failed to consider mitigating factors or to advise defendant of the consequence of his plea and that the court imposed a disproportionately severe sentence. Judge Fields granted an evidentiary hearing on the claim that the state breached the plea agreement, but at the conclusion of the hearing, he denied defendant's claim. The claim of a conflict of interest on the part of Judge Fields was transferred to the Honorable Ronald S. Reinstein, who summarily dismissed the claim without a hearing.
Defendant then filed a motion for rehearing with each judge. After both judges denied the motions, defendant filed petitions for review in this court.
Defendant argues that the state breached the plea agreement in three ways: (1) by failing to make the promised sentencing recommendation; (2) by failing to remain silent aside from the promised recommendation; and (3) by allowing Mr. Sells and Mr. Witt to recommend maximum consecutive prison terms. Based on our review of the evidentiary hearing, we conclude that the court's findings of no breach were not clearly erroneous.
The second paragraph of the plea agreement signed by the parties provides:
Sentence is left to the discretion of the Court. The State will recommend that, if Mr. Sasak is sentenced to prison, he should not receive consecutive terms.
(Emphasis added.) At the mitigation hearing preceding sentencing, the prosecutor said:
The reason the state has not asked and will represent that he be given an aggravated prison term of ten years on Count I and not on both counts is, ... to help the receiver find assets, to help in civil suits that are going to be going on for years, because the probation office can better control his conduct after he gets out of prison and better monitor the restitution. Were the Court to sentence Mr. Sasak on both counts at this point, we would loose [sic] our control over Mr. Sasak. So for that reason the state would ask the Court not [sic] to sentence Mr. Sasak to ten years, an aggravated term on one count, and impose a probation term on the second count to run again after the prison term. Such a sentence is lawful in Arizona. Because of that, it could maintain control of supervision over Mr. Sasak for a longer period of time. The state would ask that sentence ... be imposed.
(Emphasis added.)
Defendant had opportunities to object on grounds that the prosecutor's recommendation was inconsistent with the plea agreement both before and during the hearing, but he did not do so. Defendant thereby waived the right to raise the alleged error for the first time in his appeal. State v. Georgeoff, 163 Ariz. 434, 436-37, 788 P.2d 1185, 1187-88 (1990) (). Only because the state failed to plead and prove preclusion in the post-conviction proceedings can defendant now raise the issue of breach of the plea agreement. Ariz.R.Crim.P. 32.2; State v. Thompson, 120 Ariz. 202, 203, 584 P.2d 1193, 1194 (App.1978).
We begin with the proposition that when the trial court holds an evidentiary hearing, our review of the trial court's findings of fact is limited to a determination of whether...
To continue reading
Request your trial
-
State v. King
...conducts an evidentiary hearing, we defer to that court's factual findings unless they are clearly erroneous. State v. Sasak , 178 Ariz. 182, 186, 871 P.2d 729, 733 (App. 1993). It is not our role to resolve conflicts in the evidence or to judge the credibility of the experts or other witne......
-
Leon v. Shinn
...but instead had advised him to accept it, and we defer to that finding." Id., Exh. "X" at 19 (citing State v. Sasak, 178 Ariz. 182, 186, 871 P.2d 729, 733 (Ariz. Ct. App. 1993). The appellate court also observed that Petitioner had not presented any evidence that his trial counsel "was mist......
-
State v. Bowers
...must show that restitution amount was actually relevant to decision to plead in potential capital case); State v. Sasak, 178 Ariz. 182, 186, 871 P.2d 729, 733 (App.1993) (defendant failed to show that prosecutor's promise not to recommend consecutive sentences was material to plea decision)......
-
State v. Sainz
...determination on the issue of remorse when it had the benefit of witnessing the defendant's demeanor. See State v. Sasak, 178 Ariz. 182, 189, 871 P.2d 729, 736 (App. 1993). We thus find no abuse of discretion.¶14 Sainz next argues the trial court erred in aggravating his sentence based upon......