State v. Solano

• Decision Date: 20 June 1986
• Docket Number: No. 6717-PR,6717-PR
• Parties: , 55 USLW 2067 STATE of Arizona, Appellee, v. Richard James SOLANO and Vickie Kay Solano, Appellants.
• Court: Arizona Supreme Court

Page 17

724 P.2d 17

150 Ariz. 398, 55 USLW 2067

STATE of Arizona, Appellee, v. Richard James SOLANO and Vickie Kay Solano, Appellants.

No. 6717-PR.

Supreme Court of Arizona,

In Banc.

June 20, 1986.

Reconsideration Denied Sept. 9, 1986.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Diane M. Ramsey and Jack Roberts, Asst. Attys. Gen., Phoenix, for appellee.

Ross Anderson & Associates by Sheila Harmer and Ross Anderson, Phoenix, for appellants.

CAMERON, Justice.

This is a review of a decision and opinion of the court of appeals which vacated defendants' pleas of guilty and sentences and remanded the matters for a new trial. State v. Solano, 150 Ariz. 423, 724 P.2d 42 (App.1985). We have jurisdiction pursuant to art. 6, § 5(3) of the Arizona Constitution, A.R.S. § 12-120.24 and Rule 31.19, Ariz.R.Crim.P., 17 A.R.S.

The sole issue on review is whether "package deal" plea agreements, offered to multiple defendants, each contingent upon the acceptance of all co-defendant's plea agreements, violate either Rule 17.4 of the Arizona Rules of Criminal Procedure or public policy.

The facts follow. On 6 September 1983, a search warrant was executed on a Scottsdale home and 1382 grams of 80 to 95 percent pure cocaine plus two small bags of marijuana were seized. Three people, Richard Solano, Vickie Hurst and Guy Lindstrom, were present in the house and were arrested. Sometime after their arrest, Richard Solano and Vickie Hurst were married.

By indictment, a grand jury charged Richard Solano, Vickie Hurst-Solano and Guy Lindstrom each with one count of possession of a narcotic drug for sale with a value over $250, a class 2 felony, and one count of possession of marijuana, a class 6 felony.

Prior to trial, each defendant negotiated a plea agreement. These plea agreements were "package deals" in that the state conditioned each defendant's plea on the court's acceptance of the pleas from the other two defendants.

Richard Solano's plea agreement provided that he would plead guilty to possession of cocaine for sale, a class 2 felony (presumptive sentence of 7 years, minimum sentence of 5.25 years, maximum sentence 14 years with probation not available). A.R.S. §§ 13-701, 13-702. He was to receive the minimum sentence of five and one quarter years but was not to be eligible for parole for five years. The possession of marijuana count was to be dismissed.

Both Vickie Hurst-Solano and Guy Lindstrom agreed to enter an Alford plea, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to the lesser charge of possession of cocaine, a class 4 felony (presumptive sentence 4 years, minimum sentence 2 years, maximum sentence 5 years, probation available). A.R.S. §§ 13-701, 13-702. They were each to be sentenced to the maximum sentence of five years. The possession of marijuana count was to be dismissed.

This "package deal" was presented to the trial court at a change of plea hearing. The court expressed concern over the contingent nature of the pleas and therefore deferred acceptance until review of the presentence reports.

At the later hearing, the following transpired:

THE COURT: Time for sentencing and acceptance of the plea in Vickie K. Solano-Hurst--Hurst-Solano, Guy Shane Lindstrom and Richard James Solano, CR-139393.

MR. DONOFRIO: Charles Donofrio appearing on behalf of the State, Your Honor.

MR. ANDERSON: My name is Ross Anderson, I'm here for Richard Solano and Vickie Solano. I'm retained.

MR. KARASEK: David Karasek appearing for Guy Shane Lindstrom.

THE COURT: Have you all had a chance to review the presentence report and notice that the presentence officer disagrees rather substantially with the stipulated sentence in the lesser two cases?

MR. DONOFRIO: Yes, Your Honor.

THE COURT: I will tell you that that concerns me because the investigator here seems to feel that the participation of these two defendants, Lindstrom and Mrs. Solano, is so minimal that five year prison time is not justified.

MR. DONOFRIO: Your Honor, that's not the State's position.

THE COURT: Well, I understand.

MR. DONOFRIO: The State's position is that the quantity of the drugs was so substantial to call for a mandatory prison term. If these individuals were to go to trial and were convicted by a jury they would have to serve five years flat prison time.

We have not only reduced this charge from a class 2 to a class 4, we have also given them the opportunity to have soft time and they would be eligible for work furlough as soon as they leave the Alhambra Center, and as far as Hurst is concerned, as soon as she is through screening at Perryville, they would be eligible immediately for work furlough release of all types that are available to the Department of Corrections.

Mr. Solano is the only one that is going to come under the heavy hand of the Department of Corrections.

MR. DONOFRIO: I believe that it's because of the amount of drugs, the amount that was given by the presentence report is $140,000 worth of cocaine, is a bare minimum of the value of that cocaine. Taking it just at a hundred dollars a gram, it's $138,000 that was 85 to 100 percent pure. There was 490 grams of 100 percent pure cocaine. There were 892 grams of 85 to 100 percent pure cocaine.

Being cut just once, would double that, and I believe that the Court has knowledge that oftentimes is stepped on many times. We have an estimate that that was worth at least a half million dollars on the street.

The State's position further being that all three of these individuals are living in a house in Scottsdale at a very nice neighborhood, all unemployed, not working, all sharing in the proceeds of that drug.

Mr. Anderson responded by admitting that "Mr. Donofrio has been most generous under the circumstances of the plea agreement" but that the court should "try to help us convince Mr. Donofrio and the County Attorney" that probation was better for Hurst-Solano and Lindstrom.

After discussing the mandatory nature of the sentencing process, the court declined to interfere with the plea bargain stating:

THE COURT: I'm powerless.

The court then asked Richard Solano if he had anything to say before sentencing.

MR. SOLANO: Yes, sir. The one most important thing is that I was a friend of another culprit in this. The major culprit, Mr. Zuber, is not here. He's not present. He ran and I just want you to know that I'm not the one that was the main person. I admit my involvement and I'm ready to serve my time, do what I have to do, but I want you to know that I was not the main person and this is not from--I didn't start this thing. I was wrapped up in it. I got involved with it and I know that it's not the right thing at all.

THE COURT: How tragic you got your wife into it.

MR. SOLANO: That's the most important thing I want to say.

THE COURT: In a matter of a few weeks time she goes from a clean record to a felon in prison. Thanks to you.

MR. SOLANO: The thing I want to say about her is that she had absolutely nothing to do with it because she was there with me, for me, she had absolutely nothing to do with that. That's all I can tell you.

THE COURT: A fingerprint on a bag of cocaine?

MR. SOLANO: I know, but she was not involved with it, but that's the reason why we're signing this and that's the reason why we can't fight it.

THE COURT: Okay.

The trial judge then sentenced the three defendants in conformity with the plea agreements.

The Solanos filed separate appeals that were consolidated in the court of appeals. The court of appeals vacated the Solanos' convictions and sentences, finding that such contingent plea agreements violated both Rule 17.4, Ariz.R.Crim.P., 17 A.R.S. and public policy. We granted the state's petition for review because we disagree with the majority decision of the court of appeals.

The Rules of Criminal Procedure recognize validly negotiated plea agreements as an essential part of the criminal justice system and specifically provide for their existence. Rule 17.4, Ariz.R.Crim.P., 17 A.R.S.; State v. Superior Court, 125 Ariz. 575, 577, 611 P.2d 928, 930 (1980).

Rule 17.4(a), Ariz.R.Crim.P., 17 A.R.S. provides:

a. Plea Negotiations. The parties may negotiate concerning, and reach an agreement on, any aspect of the disposition of the case. The court shall not participate in any such negotiation.

The trial court, while not allowed to participate in these plea negotiations, must review any plea agreement reached to ensure that the public is protected and the ends of justice are being served. State v. Superior Court, 125 Ariz. at 577, 611 P.2d at 930. See also Rule 17.4(a), (d) and (e), Ariz.R.Crim.P., 17 A.R.S. However, in reviewing a plea agreement, the trial court may only accept the terms in their entirety or reject them in their entirety. State v. Superior Court, 125 Ariz. at 578, 611 P.2d at 931.

The defendants argue that by making their plea agreements contingent on the acceptance of each co-defendant's plea agreement, the trial court was deprived of its ability to review each agreement individually for its acceptability. The court of appeals agreed, finding that such a contingent plea agreement

"improperly places an impermissible burden on the exercise of the court's duties under rule 17.4 to review each plea agreement to see if the ends of justice and the protection of the public are being served, to reject any inappropriate sentence provision, to either accept or reject each plea individually, and to give each defendant an opportunity to withdraw his or her plea if the plea agreement or any provision of it is rejected by the court."

State v. Solano, supra, 724 P.2d at 45.

We agree with the court of appeals that Rule 17.4 requires that each defendant's plea agreement must be considered and accepted or rejected individually. It does not follow, however, that the court may not accept joint and contingent pleas. If the plea agreements are individually reviewed and found acceptable, the court...