State v. Turnbaugh

• Decision Date: 05 August 1969
• Docket Number: No. 1,CA-CR,1
• Citation: 10 Ariz.App. 179,457 P.2d 719
• Parties: STATE of Arizona, Appellee, v. Samuel James TURNBAUGH, Appellant. 146.
• Court: Arizona Court of Appeals

Page 719

457 P.2d 719

10 Ariz.App. 179

STATE of Arizona, Appellee, v. Samuel James TURNBAUGH, Appellant.

No. 1 CA-CR 146.

Court of Appeals of Arizona, Division 1, Department A.

Aug. 5, 1969.

Rehearing Denied Sept. 17, 1969.

Gary K. Nelson, Atty. Gen., by Carl Waag, Sp. Asst. Atty. Gen., for appellee.

Wilmoth & Goldman, by Robert E. Wilmoth, Phoenix, for appellant.

STEVENS, Judge.

Samuel James Turnbaugh, appellant herein, and Ronald Lee Crocker, appellant in cause number 1 CA-CR 147 (appeal dismissed 27 March, 1968) were jointly charged by information with the offenses of grand theft (A.R.S. § 13--663), aggravated assault and battery (A.R.S. § 13--245), robbery (A.R.S. § 13--641), and kidnapping (A.R.S. § 13--491). An extensive preliminary hearing was held prior to the filing of the information. The defendants were represented by an attorney at the preliminary. The information also alleged prior convictions for both defendants. On 4 August, 1967, defendants appeared in the Superior Court with their attorney, whereupon the following proceedings transpired:

'THE COURT: * * * Do you wish to enter a new plea then at this time, Mr. Lincoln?

MR. LINCOLN: Both defendants do, your honor.

THE COURT: Do you waive the reading of the information before you enter your plea?

MR. LINCOLN: We do.

THE COURT: Count One of the Information charges you with the crime of aggravated assault, and I assume that you have discussed the possible punishment with your attorney and you are familiar with this.

MR. TURNBAUGH: Yes, sir.

THE COURT: What is your plea?

MR. TURNBAUGH: Guilty.

THE COURT: Count Two charges you with the crime of grand theft, and I assume that you have also discussed the nature of this time with your attorney and you are aware of the possible consequences.

MR. TURNBAUGH: Yes, sir.

THE COURT: What is your plea to Count Two?

MR. TURNBAUGH: Guilty.'

The robbery and kidnapping charges, as well as the allegations of prior convictions, were dropped pursuant to motion of the county attorney's office. Defendants were adjudged guilty and sentenced to imprisonment for a period of not less than four nor more than five years for aggravated assault and battery, and not less than eight nor more than ten years for grand theft, the sentences to run consecutively.

Turnbaugh filed a notice of appeal on 15 September, 1967. Crocker filed his notice of appeal on 18 September, 1967. During the pendency of the Crocker appeal certain procedural steps were taken and on his motion his appeal was dismissed on 27 March, 1968.

Subsequent to the filing of the Turnbaugh notice of appeal but prior to the filing of his opening brief, Turnbaugh swore to and filed a petition with this Court bearing the title, 'Petition For The Return Of Record On Appeal To The Trial Court With Orders To Make Findings Not Heretofore Entered Of Record.' In his petition, Turnbaugh urged that he was improperly induced to enter a plea of guilty and that there was a conflict of interest by reason of the representation of Turnbaugh and Crocker by the same attorney. His petition prayed for an order directing the Superior Court to hold a hearing for the purpose of determining whether the plea of guilty was voluntary and whether there was a conflict of interest. On 18 October, 1968, this Court entered an order granting the petition for the purpose of enlarging the record in relation to the issues of voluntariness of plea and conflict of interest. State v. Kruchten, 101 Ariz. 186, 417 P.2d 510 (1966); State v. Janovic, 101 Ariz. 203, 417 P.2d 527 (1966). The trial court thereafter held the hearing and rendered findings of fact which were adverse to Turnbaugh. Turnbaugh thereafter filed objections to the court's findings, the objections were overruled, and the record of the hearing was transmitted to this Court.

The basic issue presented for our consideration concerns the sufficiency of the evidence to support the trial court's findings that defendant's pleas of guilty were voluntary and that there was no conflict of interest arising from the representation of defendant and Crocker by the same attorney.

The findings of fact rendered by the trial court on 26 December, 1968 appear as follows:

'1. That at the time of entering his plea of GUILTY on the 4th day of August, 1967, the defendant fully understood the nature of the charges pending against him as well as the possible consequences involved in entering a plea of GUILTY.

2. That at the time of entering said plea, the defendant did so freely, voluntarily, knowingly and intelligently.

3. That said plea was not the result of threats, duress, trick, fraud, false promises, coercion, or undue influence.

4. That defendant's former counsel Kenneth J. Lincoln, was not guilty of any improper conduct in his representation of the defendant.

5. That no conflict of interest existed which prevented the defendant's former counsel, Kenneth J. Lincoln, from representing said defendant as well as the co-defendant Ronald Lee Crocker.'

Defendant contends that his plea of guilty was involuntary in two respects. It is first urged that it is not enough that he be informed of the charges against him and the possible minimum and maximum length of punishment which may be imposed, but rather that he must be advised of all possible consequences of a guilty plea such as the loss of right to trial by jury, the loss of right to present a defense, and the loss of citizenship rights. In support of this position confendant relies upon Woods v. Rhay, 68 Wash.2d 601, 414 P.2d 601 (1966), wherein the Supreme Court of Washington stated:

'To be voluntary, a plea of guilty must be freely, unequivocally, intelligently and understandingly made in open court by the accused person with full knowledge of his legal and constitutional rights and of the consequences of his act. It cannot be the product of or induced by coercive threat, fear, persuasion, promise or deception.

Before accepting a plea of guilty from an accused person, it is the duty and responsibility of the trial judge to satisfy himself that the plea is in fact voluntary, and to ascertain that the accused person fully appreciates and understands the consequences of his plea.'

We agree with the pronouncements in Woods concerning the voluntariness requirements of a plea of guilty. See State v. Popejoy, 9 Ariz.App. 170, 450 P.2d 411 (1969); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). However, we do not believe Woods supports defendant in his contention that a plea of guilty is to be deemed involuntary unless the accused has been advised of every possible consequence of his plea. In our opinion the case of State v. Griswold, 105 Ariz. 1, 457 P.2d 331, decided on 23 July, 1969, supports our views.

The transcript of the hearing conducted by the trial court pursuant to this Court's order discloses ample evidence from which the trial court could conclude that defendant's plea of guilty was knowingly and intelligently entered. Defendant had a record of several prior convictions. He was represented by counsel at every stage of the proceeding from the preliminary hearing forward. He conferred with his attorney on several occasions in relation to the possible sentences which might be imposed if he plea guilty. He was advised of the minimum and maximum sentences. Although he was advised that his sentences might be concurrent, this was not guaranteed. He was further advised that he would most likely receive a different sentence than Crocker who had less criminal experience.

It is next urged that the plea was involuntary because induced by coercion and undue influence stemming from agreements made by his attorney with the county attorney. The agreements complained of concern the promise of...