Lead Opinion
Opinion
Dеfendant Eric Panizzon pled no contest to various felony counts pursuant to a plea bargain that specifically provided for the imposition of certain prison time. After the trial court sentenced defendant in
As we shall explain, the Court of Appeal erred in denying the People’s request for a dismissal. Although defendant purports not to contest the validity of the negotiated plea, he is in fact challenging the very sentence to which he agreed as part of the plea. Since the challenge attacks an integral part of the plea, it is, in substance, a challenge to the validity of the plea, which requires compliance with the probable cause certificate requirements of section 1237.5 and rule 31(d). Because defendant failed to adhere to these requirements, we conclude the Court of Appeal should not have reached the merits of defendant’s appeal. As an alternative but secondary ground for our ruling, we accept, for purposes of argument, defendant’s contention that his challenge is an attack on the sentence and not the plea, and, even upon this basis, we find it is barred because the terms of the plea bargain prohibit him from attacking the sentence on appeal. We therefore reverse the judgment of the Court of Appeal, and remand the matter to that court with directions to enter a dismissal of the appeal.
I. Background and Procedural Facts
As part of a negotiated plea bargain, defendant agreed to enter a plea of no contest (nolo contendere) to one count of kidnapping for ransom (§ 209, subd. (a)), two counts of anal rape by a foreign object (§ 289, subd. (a)), one count of soliciting another to dissuade a witness from testifying or to suborn perjury (§ 653f), and to admit a weapons use allegation (§ 12022, subd. (a)). Also as part of the plea bargain, defendant agreed to a sentence of life with the possibility of parole, plus 12 years. He also acknowledged that a restitution fine of not less than $200 and not more than $10,000 would be imposed and that he waived the right to appeal the sentence. In exchange for the plea, the People agreed to dismiss one conspiracy count (§ 182), two counts of rape by a foreign object (§ 289, subd. (a)), six counts of sexual battery by restraint (§ 243.4, subd. (a)), and one count of residential burglary (§ 459). The trial court accepted defendant’s plea on the specified counts and dismissed the others. Approximately one month later, in conformance with
Defendant subsequently filed a notice of appeal identifying the claim that his sentence was disproportionate to the sentences imposed upon his codefendants and thereby violative of the federal and state constitutional prohibitions against cruel and unusual punishment.
II. Discussion
In this court, both sides complain of error by the Court of Appeal. The People, on the onе hand, contend the court should not have disregarded defendant’s failure to comply with section 1237.5 and rule 31(d) and his waiver of the right to appeal the sentence. Defendant, on the other hand, argues the court erroneously rejected the constitutional challenges to his sentence. We examine the People’s claims of error first, as they are potentially dispositive.
As pertinent to this case, the rules governing a criminal defendant’s right to appeal are set forth in section 1237.5 and rule 31(d).
Section 1237.5 provides in relevant part: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . except where both of the following are met: HD (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [U (b) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk.” Notwithstanding the broad language of section 1237.5, it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. (People v. Jones (1995)
Rule 31(d) has two paragraphs. As we recently explained, the first paragraph implements section 1237.5’s certificate requirement by “Unfitting] the time for the defendant to file the required statement of grounds, providing] the statement may serve as the notice of appeal, and staging] the appeal ‘shall not be operative’ unless the trial court executes and files the certificate of probable cause.”
The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas. (People v. Breckenridge (1992)
It has long been established that issues going to the validity of a plea require compliance with section 1237.5. (People v. Ward (1967)
In this case, defendant does not purport to challenge the validity of his no contest plea. Nonetheless, he seeks to appeal the constitutionality of the sentence to which he agreed as part of the negotiated plea bargain. Under these circumstances, do the requirements of section 1237.5 apply?
The following principles guide our analysis. In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: “the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.” (People v. Ribero (1971)
In McNight, supra,
The Court of Appeal rejected the defendant’s argument. Applying the “substance-of-the-appeal” test, the court determined that the defendant was, in effect, claiming he was prejudiced by the trial court’s acceptance of the prosecutor’s recommended sentence and by his counsel’s failure to argue mitigating circumstances. (McNight, supra,
Defendant does not address McNight, supra. Nor does he deny that the agreed-upon sentence of life with the possibility of parole, plus 12 years,
While a trial court’s error in making certain decisions after a plea may give rise to challenges that do not require compliance with section 1237.5, all the trial court did here was to sentence defendant in accordance with the previously entered plea. The mere fact that this happened a month after the plea, howеver, is not determinative. Moreover, that the events supposedly giving rise to defendant’s disproportionality claim occurred afterwards likewise is of no consequence. Rather, “the crucial issue is what the defendant is challenging.” (People v. Ribero, supra,
In the proceedings below, the Court of Appeal reached the opposite conclusion. Relying upon People v. Sumstine (1984)
In sum, we are persuaded by McNight’s reasoning that a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself. Therefore, it was incumbent upon defendant to seek and obtain a probable cause certificate in order to attack the sentence on appeal. (§ 1237.5.) Yet even if we accept defendant’s contention that his claim is an attack on the sentence that does not require a certificate, we conclude the appeal must still be dismissed. We proceed to discuss this alternative ground for dismissal of the appeal, accepting for such puipose defendant’s argument that his claim attacks merely the sentence and not thе plea. As we shall demonstrate, defendant is barred from challenging the negotiated sentence on appeal because the terms of the plea bargain prohibit such a challenge.
The negotiated plea agreement, which results in the waiver of important constitutional rights, “is an accepted and integral part of our
“When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.” (People v. Walker (1991)
To be enforceable, a defendant’s waiver of the right to appeal must be knowing, intelligent, and voluntary. (People v. Vargas, supra,
In examining the particular facts before us, we observe that prior to entering his plea of no contest, defendant read and signed an 11-page document entitled “Waiver of Constitutional Rights and Plea of Guilty or ‘No Contest’ ” (the Waiver and Plea agreement). That document reflected, inter alia, the following information and statements initialed by defendant:
“A. Change of Plea—Conditions
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“3. My lawyer has told me that if I plead guilty or no contest to the above charge(s) and admit the prior conviction(s) enhancement(s), prior prison term(s) and/or serious felony offense(s), the court will sentence me as follows unless the court concludes the negotiated plea is not in the interest of justice, in which case the court will allow me to set aside my plea and enter a plea of not guilty:
“Agreement: Defendant to receive 6 yrs. on Ct. 3 and 3 yrs. on Ct. 5, consecutive with PC 12022(a) allegation. Defendant to receive 2 yrs. on PC 653(F) [st'c] charge consecutive to all other cts. Total determinative sentence = 12 yrs. Def. will receive life term on PC 209 charge.
“B. Consequences of Plea
“11. I understand that I am pleading guilty or no contest to an offense and/or admitting special allegation(s) which means by law I Cannot be placed on probation and that I Must be sentenced to state prison for the term selected by the judge. [Citations.]
“F. Entry of Plea
“1. I have had enough time to talk to my lawyer about the case and have told him/her all the facts and circumstances known to me about the case.
“2. My lawyer has carefully gone over with me this Waiver of Constitutional Rights form. My lawyer has explained the possible sentence which could be imposed as a result of my plea of guilty/no contest. I understand the nature of the charge(s) against me.
“3. I have discussed with my attorney the charge(s), prior conviction(s), enhancement(s), prior prison term(s), and/or serious felony offense(s) alleged against me and any facts and possible defenses.
“5. I offer my plea of ‘Guilty’ or No Contest freely and voluntarily with a full understanding of all the matters set forth on this form. No one has*82 made any threats against me, used any force against me, my family or loved ones, nor has anyone made any promises except as set out on this form in order to convince me to plead guilty or no contest. I am not under the influence of any drug(s), medication, alcohol or any other substance which would impair my judgment.
“7. I hereby waive and give up my right to appeal from the sentence I will receive in this case. I also waive and give up my right to appeal the denial of any and all motions made and denied in my case.
“8. I have personally initialed each of the above boxes and discussed them with my attorney. I understand each and every one of the rights outlined above and I hereby Waive and Give Up each of them in order to enter my plea to the above charge(s).”
Below defendant’s signature on the Waiver and Plea agreement, the following statement appears along with defense counsel’s signature:
“I am the attorney of record and I have explained each of the above rights to the defendant. I have explored the facts with him/her and studied his/her possible defenses to the charge(s) and enhancing allegations. I believe there is a factual basis for each of the pleas and admissions set forth above. I concur in his/her decision to waive the above rights and to enter a plea of guilty or no contest. I further stipulate this document may be received by the court as evidence of defendant’s intelligent waiver of these rights and that it should be filed by the clerk as a permanent record of that waiver. No promises of a particular sentence or sentence recommendation have been made by me or, to my knowledge, by the prosecuting attorney or the court which has not been fully disclosed in this form. I personally went over this document with the defendant. I observed the defendant to read, date and sign this document.”
The document also reflected the People’s concurrence in the plea, as well as the trial judge’s signature and his findings that defendant “expressly, knowingly, understanding^, and intelligently waived” his constitutional rights and that defendant’s plea was “freely and voluntarily made with an understanding of the nature and consequences thereof.”
At a hearing on the change of plea, defendant represented he recognized the Waiver and Plea agreement and affirmed he had had ample time to review it with his attorney. As to the charges to which defendant agreed to
Defendant asserts the above record fails to demonstrate a valid waiver of the right to appeal because he was not properly admonished regarding that right. (People v. Rosso (1994)
As noted previously, a trial court normally must admonish a defendant of the direct consequences of a plea of guilty or nolo contendere. (People v. Walker, supra,
Consideration of the foregoing principles leads us to conclude that the record in this case demonstrates an enforceable waiver of defendant’s right to appeal his sentence. Even though the trial court did not admonish defendant regarding the right to appeal, the Waiver and Plea agreement signed by defendant and his attorney contains defendant’s representations that he understood the sentence that would be imposed if he pleaded no contest, that he had discussed with his attorney both the paragraph specifying the sentence to be imposed and the paragraph containing the waiver of the right to appeal the sentence, and that he fully understood all matters set forth in the document without exception. The Waiver and Plea agreement also reflects defense counsel’s representation that he personally went over the document with defendant and concurred in defendant’s decision to waive the rights specified in the document, as well as counsel’s stipulation that the trial court could consider the document as evidence of defendant’s intelligent waiver of such rights. At the court hearing, both defendant and his attorney attested to the document’s valid execution. Additionally, the in-court questioning of defendant and his attorney raised no doubts as to defendant’s understanding of his rights and the consequences of his no contest plea. Under these circumstances, we are satisfied that defendant’s waiver of the right to appeal the bargained sentence was knowing, intelligent, and voluntary despite the absence of a specific admonishment by the trial court. (People v. Castrillon, supra,
People v. Rosso, supra,
To support this argument, defendant relies upon two cases finding that a defendant’s waiver of “possible future error” is outside the defendant’s contemplation and knowledge at the time the waiver is made. (People v. Sherrick (1993)
That, however, is not the situation here. Not only did the plea agreement in this case specify the sentence to be imposed, but by its very terms the
Defendant’s characterization of the issue on appeal as an “unforeseen or unknown error” is off the mark because the sentence imposed by the court was neither unforeseen nor unknown at the time defendant executed the Waiver and Plea agreement. Moreover, the essence of defendant’s claim is that his sentence is disproportionate to his level of culpability (see People v. Dillon (1983)
It is true that in People v. Dillon, supra, we looked to the relatively lenient sentences of a defendant’s coconspirators to underscore our conclusion that the punishment imposed upon the defendant was grossly disproportionate to his individual culpability. (
The reasoning articulated by the United States Supreme Court in upholding the general validity and enforceability of plea agreements is persuasive in putting into proper perspective the claim that a defendant should be relieved of a waiver of appellate rights because of the subsequent occurrence of unforeseen events perceived to be favorable to the defense. “Often the decision to plead guilty is heavily influenced by the defendant’s appraisal of the prosecution’s case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfеctly sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision.” (Brady v. United States (1970)
Contrary to defendant’s assertions, nothing in U.S. v. Jacobson (2d Cir. 1994)
U.S. v. Jacobson, supra, does not, as defendant suggests, undermine the enforceability of his waiver of the right to appeal his negotiated sentence. In this case, the People do not argue that defendant’s failure to raise the disparity issue at the time of his sentencing constituted an implied waiver of the right to appeal such a matter. Consequently, defendant’s reliance upon
Finally, invoking the principle that “[a]n appellate court may ‘correct a sentence that is not authorized by law whenever the error comes to the attention of the court’” (In re Harris (1993)
Appellate courts have relied upon the principle to which defendant refers in allowing habeas corpus review of a claim or sentencing error amounting to an excess of jurisdiction when a defendant has delayed in raising the issue (e.g., In re Harris, supra,
III. Conclusion
Although defendant maintains he is not contesting the validity of his bargained plea, he seeks to challenge the very sentence he negotiated as part of the plea. Consistent with the reasoning of McNight, supra,
In light of our conclusion that the Court of Appeal should not have disregarded defendant’s failure to comply with section 1237.5 and rule 31(d) or, alternatively, his waiver of appellate rights, we do not reach the merits of defendant’s challenge to the sentence.
Lucas, C. J., Kennard, J., George, J., Werdegar, J., and Chin, J., concurred.
Notes
Unless otherwise indicated, all further statutory references are to the Penal Code.
Unless otherwise indicated, all further references tо rules are to the California Rules of Court.
The notice of appeal also identified an issue regarding the propriety of consecutive sentencing on two of the counts. Defendant, however, relied solely upon the disproportionality issue in his briefs to the Court of Appeal.
The first paragraph of rule 31(d) provides in pertinent part: “If a judgment of conviction is entered upon a plea of guilty or nolo contendere, the defendant shall, within 60 days after the judgment is rendered, file as an intended notice of appeal the statement required by section 1237.5. . . ; but the appeal, shall not be operative unless the trial court executes and files the certificate of probable cause required by that section. Within 20 days after the defendant files the statement the trial court shall execute and file either a certificate of probable cause or an order denying a certificate and shall forthwith notify the parties of the granting or denial of the certifiсate.”
Rule 31(d)’s second paragraph provides: “If the appeal from a judgment of conviction entered upon a plea of guilty or nolo contendere is based solely upon grounds (1) occurring after entry of the plea which do not challenge its validity or (2) involving a search or seizure, the validity of which was contested pursuant to section 1538.5 .... the provisions of section 1237.5 . . . requiring a statement by the defendant and a certificate of probable cause by the trial court are inapplicable, but the appeal shall not be operative unless the notice of appeal states that it is based upon such grounds.”
Although the matter was not identified in the notice of appeal, defendant also claims he was inadequately admonished regarding the waiver of appellate rights contained in the waiver and plea agreement. Under People v. Kaanehe, supra, such a claim is clearly subject to section 1237.5. (
According to the facts recited in the Court of Appeal’s opinion below, codefendant Stephen Gillen received a 12-year prison sentence for simple kidnapping and use of a firearm and codefendant Jeffrey Locas received 732 days in the county jail for simple kidnapping.
Moreover, in People v. Sumstine, supra, the particular sentencing claim appears to have been reserved as part of the plea agreement. (
We recognize, of course, that Ward was decided in the context of the former indeterminate sentencing laws. Under the present determinate sentencing scheme, a plea of guilty to a particular degree of a crime, entered without an agreement as to the specific penalty to be imposed, may require a separate adversary hearing to determine the appropriate sentence. Nonetheless, the broad principle recognized in Ward, i.e., that the right of appeal may be properly confined where a plea eliminates the need for further adversary hearings, remains persuasive in the context of determinate sentencing and is fully applicable here.
Although some jurisdictions have invalidated, as a matter of public policy, all waivers of the right to appeal (e.g., State v. Ethington (1979)
In using the term “general waiver,” we mean a waiver that is nonspecific, e.g., “I waive my appeal rights” or “I waive my right to appeal any ruling in this case.”
Specifically, the waiver stated: “ ‘In the event that the Probation Department or the Court contemplates any Guidelines adjustments, enhancements, or calculations not referred to above, the parties each reserve the right to make all appropriate arguments concerning the same. Notwithstanding the previous sentence, it is specifically understood and agreed that neither party will appeal a sentence by the Court that falls within the sentencing ranges calculated above, or at the sentencing ranges applicable in thе event the Court rejects the Government’s recommendation for the additional two-level reduction described above, even should the Court and/or Probation Department reach that sentencing range by a Guidelines analysis different from that set forth above.’ ” (
Although the briefing in this case is unclear on the point, it may also be that defendant was in fact aware of his codefendants’ negotiated sentences at the time the trial court sentenced defendant pursuant to the plea agreement. While the record appears to establish that defendant may not have known of his codefendants’ negotiated sentences on October 15, 1993, when he entered his no contest plea, it discloses that the trial court entered codefendant Gillen’s plea (which included Gillen’s negotiated sentence) on October 18, 1993—approxi-mately one month before defendant was actually sentenced on November 16, 1993. Accordingly, it may be that, unlike the situation in U.S. v. Jacobson, supra, defendant could have raised the disparity issue at the time of his sentencing.
We likewise reject defendant’s related claim that People v. Wingo (1975)
It has not escaped our attention that some appellate courts have proceeded to address the merits of a defendant’s appeal following a guilty or nolo contendere plea despite the defendant’s failure to strictly comply with section 1237.5 and rule 31(d). (E.g., People v. Young (1991)
In the same vein, we admonish trial courts to carefully evaluate whether a defendant has shown “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings” justifying a certificate of probable cause. (§ 1237.5, subd. (a).) For the goal of judicial economy to be realized, it is critical that trial courts rigorously perform their duty to screen out frivolous or vexatious appeals before time and money are spent preparing the record and the briefs for consideration by the appellate courts.
Dissenting Opinion
I dissent.
I cannot conclude that defendant validly waived his right to appeal his sentence on the effective ground that it is disproportionate to his personal responsibility and moral culpability in violation of the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution, as applied to the states under the due process clause of the Fourteenth Amendment, and the cruel or unusual punishment clause of article I, section 17, of the California Constitution. (See People v. Marshall (1990)
Convicted defendants generally enjoy a right of appeal under state law. (Pen. Code, § 1237.) If they can waive this right at all, they must do so “knowing[ly], intelligently] and voluntar[il]y.” (People v. Vargas (1993)
Second, I question whether certain types of claims, including one that the sentence violates certain constitutional norms, may be waived. “For example, a defendant could not be said to have waived his right to appellate review of a sentence imposed in excess of the maximum penalty provided by statute or based on a constitutionally impermissible factor such as race.” (U.S. v. Marin (4th Cir. 1992)
Third, I cannot countenance the use of this written form to enter defendant’s various pleas. In my concurring and dissenting opinion in In re Ibarra (1983)
I would affirm the Court of Appeal’s judgment.