Raymond ESPINOZA, Petitioner, v. Honorable Gregory H. MARTIN, a judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, STATE of Arizona, ex rel. Richard ROMLEY, Maricopa County Attorney, Real Party in Interest.
No. CV-94-0067-PR
Supreme Court of Arizona, En Banc.
April 20, 1995.
894 P.2d 688 | 182 Ariz. 145
Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Appeals Div., R. Wayne Ford, Asst. Atty. Gen., Phoenix, for respondent Judge.
Richard M. Romley, Maricopa County Atty. by Gerald R. Grant, Deputy County Atty., Phoenix, for real party in interest.
Law Offices of Dennis C. Jones by Dennis C. Jones, Leigh B. Jones, Phoenix, amicus curiae for Arizona Attys. for Crim. Justice.
CORCORAN, Justice.
Petitioner Raymond Espinoza, a criminal defendant in Maricopa County, challenges the policy adopted by a group of Maricopa County Superior Court judges of summarily rejecting all plea agreements containing stipulated sentences. The court of appeals affirmed the policy. We granted review, and we have jurisdiction pursuant to
FACTS AND PROCEDURAL HISTORY
The criminal divisions of the Maricopa County Superior Court are divided into four groups designated as quadrants A through D. Quadrant B, consisting of 5 judges, pre-
1. Plea agreements may stipulate to “probation,” or “department of corrections” [DOC] for felonies, or “county jail” for misdemeanors. Agreements may not stipulate to any term of years (other than lifetime probation in dangerous crimes against children) or to any non-mandatory terms and conditions of probation (including, but not limited to, jail time, fines or surcharges, or community service hours), or to sentences running concurrently or consecutively, except for DOC time followed by lifetime probation in dangerous crimes against children.
The only 2 exceptions to the quadrant B policy are as follows:
2. Exceptions will be made for legitimate cooperation agreements. If the state wishes to make stipulated sentencing concessions in exchange for information, testimony or cooperation from a defendant, that fact should be made known to the judge in an appropriate manner prior to the change of plea.
. . . .
4. Stipulations in capital murder cases to life imprisonment are viewed by the judges as charging concessions and not true sentencing stipulations. Therefore, such stipulations are unaffected by the policy.
On June 2, 1993, Espinoza was indicted on one count of offering to sell narcotic drugs and one count of misconduct involving weapons. At his arraignment, the case was assigned to respondent, quadrant B Judge Gregory H. Martin. On August 11, 1993, Espinoza appeared before Judge Martin in chambers to enter a plea of guilty to both counts pursuant to a plea agreement, which stipulated that the sentences would run concurrently with each other and with an unrelated probation revocation. Judge Martin summarily rejected Espinoza‘s plea agreement because the stipulation to concurrent sentences violated the quadrant B policy. On August 31, 1993, Espinoza presented Judge Martin with the same plea agreement, this time in court and on the record, and the judge again rejected the agreement without giving it any individualized consideration because, as he noted, “[t]he sentencing provisions are all contrary to the Quad B policy.” (Emphasis added.)
Following Judge Martin‘s ruling, Espinoza filed a petition for special action. The court of appeals accepted jurisdiction, but denied relief, holding that the quadrant B policy was a proper exercise of judicial authority. Espinoza v. Martin, 180 Ariz. 608, 886 P.2d 1364 (App.1993). Espinoza then filed a petition for review. We granted review to consider the validity of the quadrant B policy because it presents an issue of statewide importance that this court has not previously decided.
QUESTIONS PRESENTED
- Whether the quadrant B policy violates rule 17.4, Arizona Rules of Criminal Procedure, because it prevents the trial court from exercising its discretion when deciding whether to accept or reject a plea agreement containing a stipulated sentence.
- Whether the quadrant B policy violates rule 36, Arizona Rules of Criminal Procedure, because it establishes an unapproved local rule that is inconsistent with the Arizona Rules of Criminal Procedure.
I. Violation of Rule 17.4
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 plain language of
Although
Acceptance of Plea. After making such determinations [of the accuracy of the agreement and the voluntariness and intelligence of the plea] and considering the victim‘s view, if provided, the court shall either accept or reject the tendered negotiated plea.
Furthermore, even if a trial court accepts a plea agreement, it is not bound by negotiated provisions regarding the sentence or the terms of probation if a review of the presentence report reveals the inadequacy of those provisions.
In order to ensure that agreements negotiated pursuant to
Therefore, the court of appeals correctly noted that “[t]he language in
This court has previously invalidated policies that limit the exercise of judicial discretion in accepting plea agreements. In the analogous case of Hare v. Superior Court, this court struck down a guideline in part because it conflicted with
recognizes not only the right to engage in plea negotiation and agreement, but provides for the procedure by which the judge rejects or accepts a plea agreement.
Rules 17.4(d) &(e) allow the judge to exercise his discretion when a plea agreement is presented for approval. Under Guideline B, the court is prohibited from exercising that discretion....
Hare, 133 Ariz. at 542, 652 P.2d at 1389. In Hare, guideline B prevented the trial court from considering plea agreements after a certain date. In this case, quadrant B policy prevented the trial court from considering plea agreements with stipulated sentences. The end result is the same. The quadrant B policy, like guideline B in Hare, violates
Espinoza, his attorney, and the prosecutor negotiated pursuant to
When Espinoza presented Judge Martin with this plea agreement on two different occasions, the judge summarily rejected it both times because the stipulation to concurrent sentences violated the quadrant B policy. Judge Martin did not consider the particular circumstances of the case and made no findings regarding the appropriateness of the negotiated sentence. Instead, the presence of a stipulated sentence in the agreement triggered the quadrant B policy and precluded any individualized exercise of discretion. Absent the quadrant B policy, Judge Martin could have weighed the merits of the plea agreement and accepted it, rejected it entirely, or rejected the sentencing provisions as inappropriate once he had reviewed the presentence report. This is the type of discretion contemplated by
Because the quadrant B policy simultaneously limits the content of plea agreements and precludes the exercise of judicial discretion over individual plea agreements, we hold that the policy violates
Our holding applies equally to the actions of individual judges. The respondent relies on State ex rel. Bowers v. Superior Court in which the court of appeals held that a trial judge in Navajo County, acting alone and not pursuant to a written policy, did not abuse his discretion by summarily rejecting a plea agreement because it contained a stipulated sentence. 173 Ariz. 34, 40, 839 P.2d 454, 460 (App.1992). We denied review in Bowers, and we now express our disapproval of that case to the extent that it allows a trial judge to automatically reject a plea agreement without individualized consideration because it contains a stipulated sentence.
II. Violation of Rule 36
As noted above, we hold that the quadrant B policy violates
This court has the exclusive power to make rules pertaining to all procedural mat-
Any court may make and amend rules governing its practice not inconsistent with these rules. No such rule shall become effective until approved in writing by the Supreme Court.
This issue turns on the meaning of the word “rule” as used in
“A rule of court prescribes a procedural course of conduct that litigants are required to follow, the failure to comply with which may deprive the parties of substantial rights.” Hare, 133 Ariz. at 542, 652 P.2d at 1389. Hare involved a set of guidelines adopted by the Pima County Superior Court to facilitate its Automated Calendaring Project. In that case, we held that a guideline requiring judges to automatically reject plea agreements in certain circumstances was invalid in part because it was an unapproved local rule. Hare, 133 Ariz. at 542, 652 P.2d at 1389. The court reasoned that the Pima County guidelines
prescribe a course of conduct for certain aspects of the criminal practice in Pima County Superior Court. They are, in effect, local rules of criminal procedure which parties to criminal actions in Pima County must follow or lose substantial rights, in this case the right to have a plea bargain considered by the court.
Hare, 133 Ariz. at 542, 652 P.2d at 1389. This court relied on Hare in a later case when we held that an order by the chief city magistrate of Tucson requiring the prosecutor to make an avowal of good faith before filing for a change of judge was a local rule that was invalid for lack of this court‘s approval. State v. City Court, 150 Ariz. 99, 103, 722 P.2d 267, 271 (1986).
Under the standard set forth in Hare, the quadrant B policy is a local rule of procedure. Just as in Hare, the policy adopted by quadrant B requires the participating judges to automatically reject plea agreements under certain circumstances. The quadrant B policy requires litigants to omit all stipulated sentences from their plea agreements, and it deprives the parties of the right to have the judge consider their plea agreements on a case-by-case basis.
In Hedlund v. Sheldon, we held that a trial judge‘s decision to impanel dual juries for co-defendants was not a rule of procedure, but rather was “‘the exercise of an individual judge‘s discretion to use a particular technique in order to meet a specific problem’ in a single case.” 173 Ariz. 143, 146, 840 P.2d 1008, 1011 (1992), quoting State v. Lambright, 138 Ariz. 63, 78, 673 P.2d 1, 16 (1983) (Feldman, J., specially concurring), cert. denied, 469 U.S. 892, 105 S.Ct. 267, 83 L.Ed.2d 203 (1984). Here, the respondent judge cites Hedlund as support for his assertion that the quadrant B policy is not a rule, but instead involves a group of judges jointly deciding to use a discretionary technique.
First, Hedlund is applicable only when a trial judge adopts a technique that is consistent with the rules of this court. The quadrant B policy violates
Having concluded that the quadrant B policy is a rule, we hold that the policy is therefore invalid because the quadrant B judges failed to obtain the approval of this court before adopting it. If we allow quadrant B, or any other faction of superior court judges, to adopt its own rules without first coming to this court for approval, proce-
At oral argument, respondent judge alleged that the quadrant B policy was simply an experiment, which is common practice in superior courts. However, no evidence in the record supports this theory. Once the quadrant B policy took effect, no one gathered statistics or conducted contemporaneous interviews with interested parties on an ongoing basis to track the results of the “experiment.” In addition, no control groups were identified for comparison and no time limit was set for the project. The judges participating in the quadrant B “experiment” were not randomly selected, but instead they self selected into the project presumably because they favored the quadrant B policy. In short, the quadrant B judges cannot now claim that their policy was an experiment when they failed to follow any accepted experimental methodology. See generally Experimentation in the Law: Report of the Federal Judicial Center Advisory Committee on Experimentation in the Law 15-23, 71-76, 81-121 (Fed.Judicial Ctr.1981); David P. Farrington, Randomized Experiments on Crime and Justice, in 4 Crime and Justice: An Annual Review of Research 257, 271-76, 296-98 (Michael Tonry & Norval Morris eds., 1983); John Monahan & Laurens Walker, Social Science in Law: Cases and Materials 57-61 (1994).
Even if the quadrant B policy were a legitimate experiment, the judges in quadrant B are still subject to the provisions of
Defendant makes a final claim that the quadrant B policy violates the equal protection clause of the
III. Justice Martone‘s Dissent
The dissent warrants a brief mention. Justice Martone argues that the quadrant B policy is valid because “[i]f, after looking at the document, a judge is opposed to any part of the plea, he or she may summarily reject it [pursuant to rule 17.4]. And that is precisely what Judge Martin did here.” Espinoza v. Martin, 182 Ariz. 145, 146, 894 P.2d 688, 689 (1995) (Martone, J., dissenting). However, the quadrant B policy required Judge Martin to reject Espinoza‘s plea agreement whether or not he actually looked at the document. The dissent fails to explain how a policy that categorically predetermines the fate of certain plea agreements is consistent with
The dissent further argues that, according to
In light of our holding in this case, the dissent asks “what of the Rule V Inactive Calendar Guidelines and the Guidelines for Rule 26.1” adopted by the Maricopa County Superior Court. Espinoza, 182 Ariz. at 154 n. 1, 894 P.2d at 697 n. 1 (citations omitted). The obvious distinction is that both sets of guidelines, by their terms, were adopted in an attempt “to facilitate uniform and predictable application” of rules 26.1 and V—not to negate those rules.
Although the dissenting opinion refers to the quadrant B policy as “the quadrant B experiment,” this label is meaningless because the dissent fails to offer any facts proving the legitimacy of the so-called experiment. Espinoza, 182 Ariz. at 154 n. 1, 894 P.2d at 697 n. 1. When a court of this state wants to conduct a legitimate experiment, which is at variance with existing rules of court, that court should present a proposal to this court for approval before the experiment commences.
DISPOSITION
We hold that the quadrant B policy of summarily rejecting plea agreements with stipulated sentences violates both
MOELLER, V.C.J., concurs.
FELDMAN, Chief Justice, specially concurring.
I fully concur in the majority opinion. Two comments in Justice Martone‘s dissent, however, require a response from the Chief Justice.
Because the dissent departs from the issue before us to castigate the court for failing to adopt the petition to amend
This debate is, of course, a non-issue in this case. See Yepes-Prado v. United States Immigration & Naturalization Serv., 36 F.3d 83 (9th Cir.1994). Those readers who desire an in-depth review, however, should peruse the comment to the petition to amend
While some have argued that sentencing stipulations are regularly crafted by inexperienced young attorneys, and judges are best suited to determine in the first instance what an appropriate disposition in a case should be, the fact is that most of the more significant and sensitive cases in the justice system are handled by experienced prosecutors and defense attorneys who have lived and breathed these cases for months. The sentencing judge on the other hand more than likely only reviews the presentence report the night before sentencing. Many of those judges, while perhaps experienced in life and the law, at least in the beginning of their judicial careers or their assignment to the criminal bench, have no experience at all in criminal sentencing. We are not all anointed with mystical and instant wisdom when we don our judicial robes.
Comment of Ron Reinstein in Opposition to the Petition, filed Sept. 20, 1994, at 2-3.
Some may believe that we should damn the torpedoes and go forward with a rule opposed by all who would have to practice under it, but I disagree. Although we may empathize with the judges who seek to regain some of the discretion taken from them by mandatory sentencing, we must listen to those who would have had to practice under the changed rule.2 From the comments, it appeared that every lawyer practicing in the field believed the proposal would not work, would create havoc in the courts, and would be unfair to the public, victims, and defendants. Although these views did not and do not sway the dissenter, they convinced four members of the court that it would be an abuse of power to impose the rule until it was first tried with a group willing to experiment. That experiment is presently being implemented. Thus, it is not accurate for the dissent to say we have rejected the proposal. The final decision will come after we see how it works on an experimental basis.
Nor is it proper to criticize this court for not being in the “forefront on reform in the criminal justice system.” Dissent at 155, 894 P.2d at 698. This, perhaps, is the first time that anyone has accused us of lacking concern for reform of our justice system, whether civil or criminal. Indeed, one often hears criticism that the court may be too involved in reform efforts and rule changes. At any rate, eagerness to reform does not require us to agree with every project presented. Sometimes we must say no, even when we would like to say yes. The unanimous, in-
ZLAKET, Justice, concurring in part and dissenting in part.
I concur that the “quadrant B policy” constituted an unapproved local rule. See Hare v. Superior Court, 133 Ariz. 540, 542, 652 P.2d 1387, 1389 (1982);
The requirement that judges give “full” regard to such plea agreements before rejecting them, ante at 148, 894 P.2d at 691, creates an unenforceable standard and invites unwarranted challenges based on alleged abuses of discretion. Must judges now articulate reasons for rejecting pleas in order to demonstrate that they are not doing so merely because agreements contain stipulated sentences? Will an individual judge‘s motives be suspect if he or she, without explanation, rejects a series of pleas containing such stipulations? If so, will hearings be required or permitted to ascertain those motives? I fear there is unintended mischief lurking in today‘s decision.
The majority concedes that judges are empowered to reject plea agreements. I am of the additional opinion that they should be permitted to summarily reject those containing stipulated sentences for that reason alone, without having to go through the charade of considering each case individually. My hope is that most judges would not routinely follow such a course of action, at least until we can be sure it causes no damage to the plea-bargaining process that constitutes an integral part of our criminal justice system. Nevertheless, arriving at a general principle applicable to a class of plea agreements, after full consideration of the issue, seems to me more honest, more efficient, and every bit as thoughtful as pondering each agreement individually before rejecting it.
I read and interpret
On the face of the Agreement in this matter, there is absolutely no discretion by the Court regarding any of the charges that the defendant is pleading guilty to. I do not know whether I would sentence that defendant to more or less....
But there is no question in the Court‘s mind that this particular Plea Agreement absolutely eliminates the need for the court. You may as well do it without me.
173 Ariz. at 37, 839 P.2d at 457.
I believe the court‘s ruling today not only threatens such candor but also reinforces the purely ministerial role about which the judge in Bowers so vehemently and properly complained. Sentencing is, or at least should be, a judicial function. Regrettably, mandatory sentencing schemes have eliminated a great deal of judicial discretion in such matters. I prefer not to support a rule interpretation that potentially contributes to further erosion of this authority, especially where it is unnecessary to resolve the pending case.
MARTONE, Justice, dissenting.
I dissent. I would support the efforts of five trial judges to improve our criminal justice system. The opinion of the court of appeals and that of the majority here reflect very different views of the status of our criminal justice system and the role of the judge in it. The opinion of the court of appeals, Espinoza v. Superior Court, 180 Ariz. 608, 886 P.2d 1364 (App.1993), makes it clear that Judge Martin neither violated Rule 17.4, Ariz.R.Crim.P., nor acted pursuant to an unapproved local rule. I would adopt the opinion of the court of appeals as our own.
The quadrant B policy was not in conflict with
I disagree with the court‘s conclusion that the policy “violates rule 17.4 because it precludes a judge from exercising his discretion over plea agreements.” Ante, at 154, 894 P.2d at 697. The policy did not prevent the trial court from exercising its discretion. The transcript of the plea proceeding shows this. Judge Martin said “I don‘t want to be bound by any of this.” Tr. at 6. He said “I don‘t want it to be a part of the plea that he get concurrent sentences.” Id. He said “I don‘t want to be bound by an agreement that I give him concurrent sentences now.” Id. at 7. He said “I‘m not going to take an agreement for concurrent sentences.” Id. The transcript suggests that Judge Martin refused to accept the plea because he believed it was inadvisable. He believed in the purposes sought to be achieved by the quadrant B policy. The premise (the policy precludes discretion) for the majority‘s conclusion is false.
Nor does the quadrant B policy constitute an unapproved local rule.1 We made this quite clear in Hedlund v. Sheldon, 173 Ariz. 143, 840 P.2d 1008 (1992). We there distinguished between a “rule that was both adopted by the Pima County Superior Court as a whole and generally applied to all criminal cases being tried in that court,” and “the exercise of an individual judge‘s discretion to use a particular technique in order to meet a specific problem.” Id. at 146, 840 P.2d at 1011. Judge Martin‘s decision to subscribe to quadrant B policy was an exercise of his discretion to use a particular technique in order to meet a specific problem within the meaning of Hedlund. The quadrant B policy was not a rule adopted by the Superior Court of Arizona in Maricopa County to be “generally applied to all criminal cases being tried in that court.” Id.
The majority invites the judges of the superior court to adopt a local rule and seek our approval for it. Ante, at 150, 894 P.2d at 693. But the Superior Court in Maricopa County has petitioned to amend
I believe that this court should be in the business of rewarding creative efforts that arise elsewhere in the system. We have not been at the forefront of reform in the criminal justice system. For example, we did nothing with A System in Crisis: The Report of the Committee to Study the Criminal Justice System in the Arizona Superior Court (1993). A majority of the judges on that committee, but only one lawyer, favored amendments to Rule 17 that would “allow the parties to negotiate a recommended sentence . . . but which would prohibit a stipulated sentence.” Id. at 26. The public knows the “criminal-justice system has all but collapsed.” Meg Greenfield, Scandal in the Courts, Newsweek, Aug. 21, 1989 at 68. See also John H. Langbein, Money Talks, Clients Walk, Newsweek, Apr. 17, 1995, at 32. Those convicted of crimes know that too. Thomas E. McLaughlin, Through Prisoners’ Eyes, A.B.A.J., Feb. 1995, at 100. The trial judges are trying new ideas as we approach the next millennium. We should support them.
lated sentencing.“); Judge Rudolph J. Gerber, Arizona Court of Appeals (“Under the present practice of stipulated sentences, it is attorneys rather than judges who in fact impose sentences. Judges are reduced to the function of a mere rubber stamp.“); Judge John L. Claborne, Arizona Court of Appeals (“[T]he present system does not allow the judge to really make an appropriate decision.“); Judge B. Michael Dann, Superior Court of Arizona in Maricopa County (“[T]he widespread practice of stipulated sentencing is bad for the criminal justice system. It‘s bad for judges, it‘s bad for defendants and it‘s bad for the public.“); Judge Robert D. Myers, Superior Court of Arizona in Maricopa County (“[U]nless
Although institutional comments in opposition were filed by prosecuting offices and public defender offices, no comment in opposition was filed by any of the “lawyers who would have had to practice under the proposed rule.” Ante, at 152, 894 P.2d at 695. The majority is persuaded by the opposition of institutional bar groups. It is natural enough for lawyers to not want to surrender their sentencing power to judges. But if judges, and not lawyers, ought to possess the power to sentence, the reluctance of lawyers to transfer that power ought not carry the day. The comments informed us that neither the federal courts nor those in other states acquiesce in sentencing agreements. If it works everywhere else, why will it not work here?
Comment of Ron Reinstein
Presiding Criminal Judge
Superior Court of Arizona in Maricopa County
IN THE SUPREME COURT STATE OF ARIZONA
No. R-94-0007
IN THE MATTER OF RULE 17.4, RULES OF CRIMINAL PROCEDURE
Comment of Ron Reinstein in Opposition to the Petition
[Filed Sept. 20, 1994]
I respectfully write in opposition to the Petition to amend
It is apparent to me that many of the proponents of the amendment are frustrated with the extent of mandatory sentencing in our state. Yet the amendment will do nothing to change that. It is a function of the legislature to change our sentencing code. In fact, two sessions ago some progress was made in the area of drug laws and Hannah priors in particular to develop a more sensible approach to sentencing. Yet Arizona still has probably more mandatory sentences in its code than most other states.
If the proponents of the amendment believe that it will increase judicial discretion at sentencing, I believe they are naive in light of the power the prosecution has over sentencing enhancements in the charging area and also in light of the pressures put on the public prosecutor by the public, the media, and victims, in “sensitive” or dangerous cases. Given the nature of those pressures as well as the desire to see that justice is done there will be more occasions than presently occur where the prosecution will simply not drop an allegation of dangerousness, a prior conviction, or any of the other myriad of enhancements available.
The effect of this in a state with the extent of mandatories that we have will be harsher treatment for some defendants than they may otherwise deserve and also needless trauma for some victims who will have to testify at trials that perhaps otherwise could have been settled. This is particularly true for many victims of sexual assault and child molestation.
In an age when every other part of the justice system is moving toward alternative dispute resolution, mediation, and settlement, it seems incredulous that we would step backward in the criminal justice system. I can understand why this would be so if judges did not have the final say over whether a plea agreement was acceptable, but we in fact have that power and I believe most of us exercise it on a regular basis. Evidently though there are some who feel constrained not to for various reasons.
While some have argued that sentencing stipulations are regularly crafted by inexperienced young attorneys, and judges are best suited to determine in the first instance what an appropriate disposition in a case should be, the fact is that most of the more significant and sensitive cases in the justice system are handled by experienced prosecutors and defense attorneys who have lived and breathed these cases for months. The sentencing judge on the other hand more than likely only reviews the presentence report the night before sentencing. Many of those judges, while perhaps experienced in life and the law, at least in the beginning of their judicial careers or their assignment to the criminal bench, have no experience at all in criminal sentencing. We are not all anointed with mystical and instant wisdom when we don our judicial robes.
Another argument raised in favor of the amendment is that probation officers slant
One misconception that needs to be addressed is the notion expressed by some that Pima County judges don‘t allow stipulated sentences. It‘s clear from Judge Brown and Veliz’ comments and my experience that that is simply not true, but rather that most of the judges in Pima County follow the same policy as the “Quadrant B” judges in Maricopa County, which is to allow stipulations to probation or prison, but not as to the terms of probation or the number of years in prison, except in extraordinary circumstances. If there is to be a change, I believe that is the direction we should be heading rather than a complete ban on stipulated sentences.
The proponents of the amendment argue that it will prevent “behind the scenes” negotiations. In fact what will occur in many instances will be lawyers going behind closed doors in judges’ chambers determining whether a judge will accept the sentencing “recommendations,” much as occurred years ago when that great pillar of justice (Hah!) Moise Berger‘s ban on plea bargaining begat submissions in which lawyers and judges agreed to the disposition of cases behind closed doors. Or else counsel will ask the court to defer acceptance of the plea until they find out if the court will go along with the sentencing “recommendation.”
I have no idea whether there would be a significant increase in the trial rate in Maricopa County with the proposed amendment, and as several judges have expressed, that may not be a bad result if we had the resources to absorb an increase. At this point we simply don‘t, unless it comes at the expense of the other divisions of the court, or health care, education, parks, or what have you. That‘s not the justice system‘s fault, but rather the reality of the budget crisis in Maricopa County and past poor fiscal management. But in any case a 5 to 6% jury trial rate is common to most other metropolitan court systems. The higher trial rates seen in other metropolitan jurisdictions (other than Pima County) are from a much higher degree of bench trials which by local legal culture are practically nonexistent in Maricopa County, or this state.
As is mentioned in Appendix C of the Petition, sentencing stipulations have been rejected in about 9% of the cases in Maricopa County. Yet that doesn‘t include the numerous other cases where the court informs the parties it can‘t agree to the stipulation, but then informs them what would be acceptable. Most of those cases are then settled without a formal rejection. In many divisions this occurs on a daily basis. Having done this on a regular basis for years, rejecting some pleas as too harsh and some as too lenient, I can count on one hand the number of cases where the parties didn‘t accept my decision.
Many cases simply require a stipulated sentence. As Presiding Criminal Judge in Maricopa County I supervise the State and County Grand Juries. On a fairly regular basis I take preindictment pleas in cooperation agreements in major fraud and white collar crime cases, public corruption cases, multi-defendant wiretap conspiracy cases and the like. Without the ability to stipulate to a sentence many of those agreements which serve justice usually would not be reached.
Other types of cases which sometimes warrant a stipulation as to sentence are those involving dangerous crimes against children, complex cases that if tried would last weeks or months, and many cases which come before us as trial judges where a stipulated plea at least to probation or prison is in the interests of justice.
To have a rule which in effect ties the court‘s and the parties’ hands by an absolute prohibition on all sentencing stipulations puts the court in the same position as some prose-
One of the most troubling arguments in favor of the petition is that sentencing stipulations reduce or eliminate sentencing advocacy and that they add to delay. My only response to that is that judges get what they demand of attorneys. If attorneys know and let their clients know that a judge doesn‘t decide what the sentence should be or whether to accept or reject a plea until counsel, the defendant, and the victim have had their say in court, it promotes not only advocacy but respect. If judges merely act as “rubber stamps” through laziness or an unwillingness to “rock the boat,” perhaps they should seek other employment.
The bottom line is that some judges need to be able to “Just say No!” if they don‘t agree with a stipulation. I totally agree with the comments of Jon Sands for the Criminal Justice Section of the State Bar that “a refusal to determine if a plea is in the interests of justice for fear of rocking the boat is a sad commentary on the bench.” Likewise it is imperative that judges not willy-nilly grant thirty day continuances without good cause.
The fact of the matter is that most plea agreements are not objectionable. As a judge commands respect, in fact, he or she will see fewer stipulated sentences. Judges who see themselves as mere functionaries and who don‘t exercise their authority and control in a judicious manner cannot command respect.
As an alternative to the Petition, I believe that three modifications to the current rule would improve the system. First, that stipulations be allowed to probation or prison, but not as to the terms of probation or the number of years in prison except in exceptional circumstances. Second, that there not be an automatic change of judge once a plea is rejected. This only serves to promote judge shopping. Finally, judges should be allowed to participate in settlement discussions with counsel so long as that judge is not the trial judge (unless the parties agree the judge should try the case as well.) While I realize these alternatives open up a different can of worms again, they are ideas which warrant consideration.
Respectfully submitted this 19th day of SEPTEMBER, 1994.
/s/ Ron Reinstein
Ron Reinstein