State v. Whitehead, 4528

• Decision Date: 01 June 1979
• Docket Number: No. 4528,4528
• Citation: 596 P.2d 370,122 Ariz. 535
• Parties: STATE of Arizona, Appellee, v. Michael Loren WHITEHEAD, Appellant.
• Court: Arizona Supreme Court

Page 370

596 P.2d 370

122 Ariz. 535

STATE of Arizona, Appellee, v. Michael Loren WHITEHEAD, Appellant.

No. 4528.

Supreme Court of Arizona, In Banc.

June 1, 1979.

John A. LaSota, Jr., Former Atty. Gen., Robert K. Corbin, Atty. Gen., by William J. Schafer, III, Robert S. Golden, Asst. Attys. Gen., Phoenix, for appellee.

Aspey, Watkins & Diesel by Frederick M. Aspey, Flagstaff, for appellant.

STRUCKMEYER, Vice Chief Justice.

Michael Loren Whitehead, pursuant to a plea agreement, plead guilty to armed robbery, two counts of kidnapping with intent to commit armed robbery, kidnapping with intent to commit rape, forcible rape, and lewd and lascivious acts. He was sentenced to concurrent terms of 20 to 40 years in the Arizona State Prison on each count, with the exception of a four to five year concurrent sentence for lewd and lascivious acts, and appeals from the judgment and sentences entered thereon. Affirmed. Appellant's sole claim of error is that the sentencing judge committed reversible error by denying his motion to withdraw guilty plea or in the alternative to vacate judgment or modify sentence for the reason his sentences violated the plea agreement. ¹ It is appellant's contention that the agreement was orally modified to include the condition that appellant's state sentences run concurrent to certain federal sentences. ² Without addressing the issue of whether a written plea agreement may be orally modified after the plea has been entered and accepted but before sentencing, we hold that appellant has failed to show that such an Agreement was made or contemplated.

At the outset it should be noted that plea agreements are made by a defendant, his counsel and the prosecuting attorney. See State v. Rogel, 116 Ariz. 114, 568 P.2d 421 (1977); State v. McFord, 115 Ariz. 246, 564 P.2d 935 (App.1977); 17 A.R.S., Rules of Criminal Procedure, rule 17.4.b. The court may either accept the plea, after determining the accuracy of the agreement, the voluntariness and intelligence of the plea, or reject it if the court believes the provisions are inappropriate. 17 A.R.S., Rules of Criminal Procedure, rule 17.4.c., d. and e.

At no place in the record in this case is there reflected an oral agreement between the State and appellant subsequent to the written agreement. On April 7, 1978, appellant appeared for sentencing before Judge Richard K. Mangum, and the following exchange occurred:

"THE COURT: Is the defendant ready?

(DEFENSE COUNSEL): Defendant is present, and we are prepared to proceed. However, I would ask for a 30-day postponement. The reason for the request is that I am attempting to dispose of some federal charges which are now pending against my client. And there is a possibility that I may be able to arrange a situation where he could serve his time, including his Arizona sentence, in a federal institution. And I need 30 days in order to try and arrange this.

THE COURT: Mr. Hurst, do you have any objection to this request?

(PROSECUTOR): Your Honor, I have no objection to their request. I hesitate, as the Court is aware from our discussion prior to this, to going along with the federal time. I think Mr. Whitehead is the type of individual who does not deserve any such break. And my understanding, at least from having talked to other inmates doing federal time, it is a substantial advantage over doing time in the Arizona State Prison.

My concern is that Mr. Whitehead is removed from society from a period of 20 years, at least 20 years, pursuant to the plea agreement we have entered into. I do want the record to reflect, I think it should reflect this situation at this time was not considered on the plea agreement when it was entered into. It has nothing to do with that. And should any type of arrangement such as this not be feasible, that should have nothing to do with the plea agreement and the Court prior to acceptance of the plea.

THE COURT: It's my understanding that the situation, from talking about this with the attorneys just a moment ago in Chambers, that there are four federal bank robbery charges pending in the San Francisco jurisdiction. Those are federal charges. The federal authorities are eager to prosecute on those.

There is a maximum sentence of 25 years on each count. And in light of the defendant's record, the likelihood is that maximum sentence will be given. The probability is that those would be made to run concurrently. And based upon the present standards, there would be parole eligibility from federal imprisonment in eight or nine years.

In the event that the defendant were released on that parole, you would then be taken to the State of Arizona to serve, finish serving the balance of 20 years, which would be twelve or eleven years remaining.

I am willing to go along with this proposal because the Arizona State Prison is presently overcrowded, the facilities are not up to standards. I think that experience has spoken, that there have been a number of escapes from the Arizona State Prison, which probably would not have occurred if it was less crowded, and better staffed and more modernly secured. It is likely to be better in the federal prison, and by the time the defendant is returned to Arizona hopefully we will have new and better facilities.

I think that the most we can hope for is to take the defendant out of circulation for 20 years. I think the likelihood of rehabilitation is slim in this case. I feel it would be an advantage to the taxpayers of the State of Arizona to have him serve as many years as possible in a federal prison, as the cost of housing him would then be a federal charge, rather than a State one.

I think Mr. Hurst is correct that probably the quarters are better. Perhaps the inmate treatment is better in a federal prison. So in that sense, it's easier time to serve.

However, I think that the suggestion that you made, Mr. Aspey, is one that we should try. I understand that in 30 days we will know whether this proposal will work out with the federal prosecution.

It is the defendant's intention to enter guilty pleas to those federal charges, I understand; is that correct?

(DEFENSE COUNSEL): Yes.

THE COURT: In light of all the circumstances then, I will grant a postponement of the sentencing for a period of 30 days."

Appellant subsequently plead guilty to and was sentenced on the federal charges. He was then returned to Flagstaff for sentencing by the State. On July 27, 1978, appellant appeared before Judge Thomas Brooks for sentencing and the following dialogue ensued:

"THE COURT: Is there any legal cause why the Court should not proceed with disposition of sentence in this case?

(DEFENSE COUNSEL): No legal problems.

THE COURT: Do you have anything to present in mitigation on behalf of Mr. Whitehead?

(DEFENSE COUNSEL): Your Honor, the only thing I would like to emphasize to the Court is, at the time we entered into this plea agreement, it was Mike's concern that he be allowed to serve his time in a federal institution.

At the time the plea was entered into, too, there were several bank robbery charges, federal charges outstanding, and Mike requested that I somehow try and work out an arrangement whereby he could serve his time in a federal institution and have his state-time run concurrent.

The charges were pending in the San Francisco area. I have made numerous phone calls to the Prosecutor in San Francisco, the Prosecutor in Phoenix, as well as to the Arizona Department of Corrections in...