State v. FoxState v. Fox
- Reporters:
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- Before:
- Holohan
Thе defendant, Francis W. Fox, pled guilty to second degree murder for which he was sentenced to confinement for a term of 14 to 18 years. He filed a timely appeal.
The appellant has attacked the legal sufficiency of the plea in the following respects :
1. An intelligent plea was not entered because a) the appellant misunderstood the plea bargain, b) appellant may have been misled by counsel and c) appellant was not аdvised of his right to remain silent.
2. Appellant was not allowed to withdraw his guilty plea under the plea bargain where psychiatric testing showed a possible defense to the crime based on lack of the necessary intent.
3. The trial court, by fаiling to grant appellant’s motion for continuance and for commitment for further psychiatric and physical examination, coerced the guilty plea and violatedA.R.S. § 13-1621.01 (J) , and
4. The plea bargain was not adhered to by the state and the court.
On February 8, 1973, the appellant was charged by information with first degree murder. Since the action commenced prior to September 1, 1973, the 1956 Rules of Criminal Procedure were applicable. 17 A.R.S. Rules of Criminal Procedure, Rule 1.5.
Upon motion of appellant, the trial court appointed two psychiatrists to determine appellant’s competency to stand trial and mental condition at the time of the alleged murder. The psychiatric reports confirmed appellant’s claim of amnesia at the time of the homicide, but the reports reflected that appellant was presently capable of assisting in his own defense. The reports suggested that appellant may nоt have fully understood the quality of the committed act because of pathological intoxication, and one of the reports recommended that additional psychiatric and physical tests be conducted to determinе whether appellant’s history of drinking had produced an organic deficiency or an epileptic condition.
After receiving the reports, the trial court set the case for trial on August 7,
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1973. On July 24, 1973, appellant gave the prosecution notice that defense of insanity would be urged. The appellant filed a motion for continuance and for commitment for further psychiatric and physical examination. Without responding directly to the motion, the trial court resеt the trial date for August 8, 1973. On August 6, 1973, a plea agreement was entered into between appellant, represented by counsel, and the prosecution, by which appellant would enter a plea of guilty to second degree murder, аnd, prior to sentencing, submit himself to the Diagnostic Center of the Arizona State Prison for psychological evaluation under
Appellant’s assertion that the record does not sufficiently reflect an intelligent plea is оf three parts. First, appellant argues that he misunderstood the plea bargain agreement. A careful examination of the record reveals that this is not so. It is a fact that on one occasion the court did misstate the argument, but the record adequately reflects at other points, both before and after the misstatement, that the appellant, the prosecution and the court were fully aware of the agreement in all of its particulars. Secоnd, the appellant contends that he was misled by statements of counsel as to the length of the sentence he was to receive. During the plea bargain negotiations, the appellant was clearly apprised of the rаnge and extent of the sentence for second degree murder. All evidence before us tends to support rather than rebut the presumption that the appellant did have full knowledge of the facts and consequences of thе plea bargain in this respect. State v. Washington, 108 Ariz. Ill, 493 P. 2d 493 (1972); State v. McCallister, 107 Ariz. 143, 483 P.2d 558 (1971); State v. Gutierrez, 20 Ariz.App. 337, 512 P.2d 869 (1973).
Third, appellant urges that the trial court failed to advise him upon entry of the guilty plea of his right to remain silent. Although the trial court attempted to set forth meticulously the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the court failed tо instruct the appellant that he was waiving the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment. Because the record is deficient in this regard, we must remand this cause for hearing to determine whether appеllant knew that he was waiving his right against compulsory self-incrimination. State v. Crowley, 111 Ariz. 308, 528 P.2d 834 (1974); State v. Darling, 109 Ariz. 148, 506 P.2d 1042 (1973).
Appellant’s second assertion of error is that appellant should have been allowed to withdraw his guilty plea because the psychiatric reports suggested a рossible defense to the murder charge, i.e., negation of necessary intent due to drunkenness. Prior to the psychiatric testing performed pursuant to the plea bargain agreement, the appellant was examined by two private рsychiatrists, one of whom recommended that additional psychiatric and physical testing be conducted. It was apparent from these reports that there existed a possibility for a specific intent defense. *378 Nonetheless, appellant entered into the plea agreement without specifying or bargaining that a provision be included for such a contingency, and agreed only to a withdrawal of the guilty plea in the event of reports indicating a valid insаnity defense. See State v. Hostler, 109 Ariz. 212, 507 P. 2d 974 (1973). It is clearly established that voluntary intoxication is not a basis for a valid insanity defense. State v. Durgin, 110 Ariz. 250, 517 P.2d 1246 (1974). Furthermore, appellant made no effort in the lower court proceedings to withdraw his plea. In light of appellant’s understanding of thе plea bargain agreement, we feel that no constitutional rights of the appellant were abused by the lower court in not withdrawing the guilty plea on its own initiative. State v. Gilreath, 107 Ariz. 318, 487 P.2d 385 (1971), cert, denied, 406 U.S. 921, 92 S.Ct. 1781, 32 L.Ed.2d 121 (1972); State v. Rendel, 18 Ariz.App. 201, 501 P.2d 42 (1972).
The third ground for appeal raised by appellant is that, becausе of appellant’s indigency, denial of appellant’s motion for continuance and for commitment for further psychiatric and physical examinations constituted a coercion of his guilty plea. At the time of accepting the plea, the trial court made specific inquiries into its voluntariness. Both appellant and counsel responded affirmatively that it was arrived at without coercion or compulsion. This fact, accompanied by the additional facts that appellant did not raise his contentions of involuntariness before the trial court and did not pursue his motion for continuance in any manner whatsoever, * precludes the appellant from now asserting this issue on aрpeal. 5 C.J.S. Appeal & Error § 1545, p. 1115. See State v. Hostler, supra-, Matlow v. Matlow, 89 Ariz. 293, 361 P.2d 648 (1961).
As part of the same argument, appellant contends that the trial court’s failure to rule on the motion violated
We do find, however, that the trial court failed to comply with the provisions of
“This is the day and hour for sentencing. . . . Both counsel stipulate that the defendаnt is able to assist in his own defense and does not suffer from any mental disorder and upon this stipulation, the Court so finds that the defendant is able to assist in his own defense. . . . ”
It is to be emphasized that the court’s determination was based on the parties’ stiрulation that the appellant was in fact competent and was
not
a finding made pursuant to a stipulation that the matter be submitted to the court on the written reports of psychiatrists.
Cf. State v. Bates,
111 Ariz. 202, 526 P.2d 1054 (1974);
State v. Cobb,
110 Ariz. 578, 521 P.2d 1124 (1974). At the minimum,
Appellant’s final contention is that the plea bargain was not adhered to by the prosecution and the court. A careful comparison of the alleged breaches of the plea bargain with the plea bargain agreement and the record renders appellant’s argument without merit. We find no instance in which the prosecution and the trial court did not fully or substantially comply with all obligations set forth in the subject agreement, and there is no indication that apрellant was prejudiced in any manner by the way in which the agreement was implemented. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Darling, 109 Ariz. 148, 506 P.2d 1042 (1973).
The trial court is directed to hold a hearing as required by
Remanded with directions.
CAMERON, C. J., STRUCKMEYER, V. C. J., and HAYS, and GORDON, JJ., concur.
Notes
Appellant has argued that the trial court’s rescheduling of the trial date immediately after the filing of the mоtion for a continuance constitutes an implied denial. 60 O.J.S. Motions & Orders § 38, p. 54. The facts are insufficient, however, for us to resolve this point since it is uncertain whether the trial court had actual knowledge of the motion when it reset the trial date thе very next day. The plea bargain agreement was entered into 12 days later and before the trial date, thereby eliminating any future need of ruling thereon. See Atchison, Topeka and Santa Fe Ry. Co. v. Parr, 96 Ariz. 13,’ 391 P.2d 575 (1964). The inferences to be drawn from the events transpiring during this length of time are too inconclusive to permit us to reach the conclusion sought by the appellant.