STATE of Arizona, Appellee, v. William Eugene CUTLER, Appellant.
No. 4394.
Supreme Court of Arizona, In Banc.
Jan. 9, 1979.
Rehearing Denied Feb. 14, 1979.
590 P.2d 444
Ross P. Lee, Maricopa County Public Defender, Joel M. Glynn, Deputy Public Defender, Phoenix, for appellant.
GORDON, Justice:
William Eugene Cutler, hereinafter referred to as the defendant, pled guilty to unlawful failure to return a rented vehicle in violation of
Before accepting the defendant‘s guilty plea, the trial court advised him that the crime to which he pled сarried a sentence of no greater than three years in prison, if treated as a felony, or six months in jail, if treated as a misdemeanor. The plea agreement stipulated that the plea could be withdrawn if prison time were imposed. The defendant, therefore, could reasonably have believed that the maximum incarceration that he faced, as a result of his plea, was six months in the county jail. Moreover, this six months could have been reduced further with double-time credits pursuant to
A plea of guilty is more than a confession, it is itself a conviction. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and must, therefore, be in “every respect voluntary.” (Emphasis added.) State v. Linsner, 105 Ariz. 488, 491, 467 P.2d 238, 241 (1970). A judge may not accept a defendant‘s plea without first ascertaining that it is voluntary and intelligently made.
For a рlea to be intelligently made, a defendant must thoroughly understand its consequences. State v. Geiger, 113 Ariz. 297, 552 P.2d 1191 (1976). Moreover, in order for a plea to be deemed voluntary, the defendant must be aware of its ramifications and must be apprised of the range of sentence that he could face and of the rights he will fоrfeit. State v. Contreras, 112 Ariz. 358, 542 P.2d 17 (1975). Therefore, if the defendant does not have a proper understanding of what can happen
Because incarceration is a severe deprivation of liberty, we hold that, unless the defendant is advised of the possibility at the timе he pleads guilty, he cannot be given more jail time as a condition of probation than the amount of jail time he could receive as a sentence.
The state acknowledges that, before a plea can be accepted, the defendant must be advised of the nature and range of possible sentence for the offense to which his plea is offered.
Sentencing is usually not accomplished when a defendant‘s plea is accepted, but is postponed until the judge can be supplied with a presentence report.
The defendant completed his year in the Maricopa County Jail on October 23, 1978. He remains on probation, however, for two more years. Because of the collateral legal consequences that accompany a criminal conviction, we do not consider this appeal moot, despite the fact that the defendant is now out of custody. Sibron v. State of New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).
Boykin v. Alabama, supra, requires thаt the record affirmatively disclose that a defendant who pled guilty entered his plea understandingly and voluntarily. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). However, “if on appeal the complete record is deficient as to some of the matters required by Boykin, but otherwise reflect[s] a voluntary, knowing, uncoerced plea and it аppears that the record could be expanded to reflect the truth of what happened, the matter will be remanded to the trial court for further proceedings.” State v. Darling, 109 Ariz. 148, 152, 506 P.2d 1042, 1046 (1973); See also, State v. Carr, 108 Ariz. 203, 495 P.2d 134 (1972); State v. Hooper, 107 Ariz. 327, 487 P.2d 394 (1971); North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
We, therefore, remand to the trial court for a hearing to determine if the defendant knew, at the time of his guilty plea, thаt he could receive more than six months of jail time as a consequence of his plea. If the court finds that the defendant was adequately infоrmed of this potential, it will so advise this Court by appropriate findings of fact. If these findings are supported by the evidence, the judgment of convictiоn will be affirmed. Should the court below find that the defendant was not advised of this potential, the plea will be set aside as involuntary.
So ordered.
CAMERON, C. J., and STRUCKMEYER, V. C. J., concur.
HAYS, Justice, dissenting.
I dissent. The only issue in this case is presented in the second sentence in the majority opinion: “In the plea agreement, the parties stipulated that the defendant wоuld make restitution to the victim and pay court costs to the county and that his plea could be withdrawn if any prison time
The plea agreement had a built-in safety valve for the defendant so far as thе imposition of prison time was concerned. All the defendant had to do if he got prison time was to ask to withdraw his plea. The only question is: did defendаnt waive this provision of the plea agreement by failing to ask to withdraw the guilty plea?
The majority misses the point; waiver is the only issue in this case. From a review of the record, I find that defendant failed to ask to withdraw his plea, and he therefore waived this right. The judgment of conviction and sentence should be affirmed.
HOLOHAN, Justice, concurring.
I concur in Justice Hays‘s dissent.