State v. Moreno

my opinion the bases for forth set CONTRERAS, Chief Judge, dissenting: ruling was erroneous. I believe that the majority I dissent. errs sentence, not the actual possible It is the addressing the merits of in its manner ultimately imposed, which is deter- that he contention was denied defendant’s right to a of a trial. Duncan minative by jury. Furthermore, a trial right to 145, Louisiana, 1444, 391 U.S. 88 S.Ct. 20 v. fundamentally, I believe that the and more (1968); 491 ex rel. Baumert State L.Ed.2d that defendant erred trial court Court, 152, 127 Ariz. 618 Superior v. jury trial. In light of that had offense (1980).2 charged was a ruling, I am of the opinion that 1078 with a maximum intelligent- felony, penalty class 6 plea. vacate the (A.R.S. made. I would ly imprisonment years’ 13- § IV2 13-702(G) State, 2. To the to A.R.S. extent that Bruce § 1. Pursuant v. judgment 271, implies otherwise, (1980), conviction for a 1 class I 614 P.2d 813 person my opinion, distinguishable. who has been misdemeanor of a con- the rea- find However, felony. problem soning it is victed of a class 6 clear Bruce is confined to possible not been sentences convicted of a for offenses that defendant consecutive “petty”. felony If when the made this each of which is the offense class 6 with, begin Additionally, “petty” ap- at that is not then statement. time the applicability. designated This pellee has no is made clear the offense as a Bruce had not mis- Court, Superior demeanor, ex rel. Baumert v. State nor was there discussion with Bruce) supra (decided after in which the entire respect amendment of the information sentence, possible focus was on the court. then before 153, Ariz. at 127 618 P.2d at actual sentence.

203 $150,000 (A.R.S. Well, fine of 701(BX5)), THE COURT: that really doesn’t “petty That is not a of 13-801(A)). § to do with anything your attorney. pled standard. offense fense” the Court’s decision. That misdemeanor, with a maxi a class to was valid guilty waives I concede months’ imprisonment of six mum defects, including depri- non-jurisdictional 13-707(1)), $1,000 and a fine of (A.R.S. § which oc- rights, of constitutional vations 13-802(A)). Even (A.R.S. is not a § to, of, and independent prior curred under the offense” standard oí Gold “petty Henderson, 258, Kautz, v. 431, Tollett U.S. plea. Ariz. 531 P.2d 1138 man ex 1608, 1602, 235, and State rel. (1975), Superi Baumert v. 36 L.Ed.2d S.Ct. Court, supra. present criminal code that is Ap- But issue here. (1973). offense” as one for which “petty defines confused issues in the an- has pellee authorized, 13- a fine A.R.S. only § brief, appellant swering reply filed no (or and the terms 105(22), “misdemeanor” them. clarify simply issue is brief “petty mutually offense” are “felony”) plea was intelligently made. whether 13-602(C). While exclusive. that a valid guilty also I concede statutory definitions are not control these waives State of right issue ling on Laurino, Court, v. Superior supra, Baumert ex rel. legislative Laurino, determination of decided believe before But and what is not deserves what Rule adoption of stated that the issue judicial consideration determi some plea “whether was and was is of what and what is not nation 586, made.” Id. intelligently at 480 P.2d right to purposes jury trial. Cf. case, it was not. right In to deWood, 290, 11 Ariz.App. 464 P.2d v. State is one of the jury trial three basic a consti where the trial (1970), judge clearly 361 of which rights a defendant must tutional a defendant with a viola informed v. Schoonover, State informed. be 36-1002.05 of right of A.R.S. his to a tion 141 411, P.2d right 626 “[T]he affirmatively jury waived, be jury trial where an right. waived of the right is aware and voluntari accused stating error in to defendant The court’s intelligently relinquishes it.” State ly was trial was that he Jelks, 175, 177, 461 473, 475 Ariz. 105 P.2d v. by cured not, my opinion, subsequent 966, denied 398 cert. 90 (1969), U.S. S.Ct. proceeding. plea agreement plea was 2179, 549 (1970) (emphasis sup L.Ed.2d 26 advance, prepared in apparently and all but was extent which the trial clearly but it induced signed, plied). jury ruling on the trial issue. On the face the matter of jury waiver of trial discussed plea someone crossed out of the to be one circumstance considered in de is recitation rights waived. jury” “to termining whether alleged waiver was apparently reading from un- judge, an Little, 479, v. 104 State Ariz. 455 valid. form, orally advised altered (1969). Tiznado, 453 State v. 112 P.2d waiving his right was to “a trial that he 156, (1975), P.2d 122 negates not believe this I do jury”. that the court had discussed “at noted prior explicit ruling to the of the effect length” right defendant his to a after the accepted Even contrary. Here, record, is, short as it trial. jury immediately prior sentencing, de- defendant was misin clearly shows thought go- that he he was stated incomprehensible it I find formed. jury ing get hold that majority can this defendant vol Moreno, Mr. you satis- COURT: THE knowingly, untarily, re- legal you’ve services with the fied right a fundamental which the trial your attorney? case with waived in this ceived told him just he did not Well, no. DEFENDANT: THE jury. probably get I would thought place. can proper handling For a model of an only be exercised “... if a person is plea issue such intelligent presented as that convicted of class 6 felony. (em- ...” here, Esquer, 124, see 26 Ariz.App. supplied). To me phasis this is synonymous 849, 572, reh. Ariz.App. denied 26 after conviction. The realistic result- There ant effect defendant who had right informed the defendant of his to a arrested or charged never been with any “public speedy trial” but right not his jurisdiction in this deprived offense trial”; “jury to a Id. 26 Ariz.App. at opportunity to have guilt his or inno- 546 P.2d 849. This court held that did not aby jury. cence determined satisfy requirements of Rule 17.2(c) and believe that I further Alabama, Boykin 395 U.S. 89 S.Ct. erroneous induced the defendant (1969), 23 L.Ed.2d 274 and reversed. plea agreement and, accord- There no mention of “waiving non-jur- plea was ingly, the not voluntarily and in- defects.” That concept isdictional is irrele- telligently made. After being unalterably is in the plea vant when defect itself. he had right told that v. Municipality also Swensen See of An appear that defendant’s better course (Alaska chorage, 1980). There get action would be to the best “deal” was informed at group entering possible by into a agreement. that he arraignment had a But the fact remains that agree- be jail if he could sentenced for his by-product was the ment the trial court’s (DWI). another, At individual, offense ar ruling and was not intelligently he was told that he

raignment, could re made. pled He then jail term. guilty. ceive Furthermore, when is not intelli- he had not been held that informed of court made, gently the fact there was no compliance below is also objection irrelevant. When (based Rule 11) Federal Rule Alaska to inform the the court fails defendant of he had to allowed to and that vacate his rights plea, he waives Again, there was no guilty plea. mention Here error. the situation fundamental non-jurisdictional “waiving defects.” since the pronounced more in the consideration majori- After further instance, misinformed the defendant compelled opinion, am to further ty com- Decisions rights. vacating unintelli- ment, though my even comments pleas objections. do not mention gent repetitious. considered offense See, Esquer, supra. e.g., 6 felony was a class charged carries a Finally, there is reason to remand for years upon maximum convic- IV2 hearing to whether as defendant opinion, Clearly, my tion. defendant had rights. Esquer, of his See supra; aware cf. trial on such offense. Reuben, However, right was erroneously He was not. The plea by the trial court’s clear from be set should aside. unambiguous ruling that if the defend- convicted, the court desig- ant were aas misdemeanor “...

nate the offense is not entitled to a

and therefore majority states that

jury trial.” there nothing 13-702(G) preclude which would a trial doing. I disagree from so for the I believe authority such

basic reason there having written certifications 3. The record contains no record of defendant Department City Phoenix Police from offense in arrested or County Maricopa jurisdiction. Sheriffs Office that and the

Case Details

Case Name: State v. Moreno

Court Name: Court of Appeals of Arizona

Date Published: Sep 23, 1982

Citation: 655 P.2d 23

Docket Number: 1 CA-CR 5564

Court Abbreviation: Ariz. Ct. App.