State v. Hogue

479 P.2d 417, 106 Ariz. 532, 1971 Ariz. LEXIS 203
CourtArizona Supreme Court
DecidedJanuary 21, 1971
DocketNo. 2136
StatusPublished
Cited by4 cases

This text of 479 P.2d 417 (State v. Hogue) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hogue, 479 P.2d 417, 106 Ariz. 532, 1971 Ariz. LEXIS 203 (Ark. 1971).

Opinion

UDALL, Justice:

Albert Hogue, hereinafter referred to as the defendant, appeals from the denial of his motion to vacate the judgment and sentence entered by the Superior Court of Maricopa County.

The facts of this case are as follows: On or about the night of October 12, 1967, a small building on the premises of Frontier Motors, a used car establishment located in Phoenix, Arizona, was broken into. A few small items were taken from the building, as well as an indeterminate number of car keys. These keys were then used to drive off with two automobiles: one a light blue, 1957 Ford; the other a white, 1961 Chevrolet.

On October 26, 1967, a criminal complaint was filed charging defendant with the following crimes: Burglary, Count I; Grand Theft, Auto, Count II (with prior conviction). During the preliminary examination, at which time defendant was represented by counsel, testimony was given to the effect that: (1) defendant’s left thumb fingerprint was found on the now-abandoned 1957 Ford; (2) defendant was arrested with two companions (Joseph Fields and Floyd Morris), and in their possession were the stolen car keys.

At his arraignment defendant pleaded not guilty, denied the State’s allegation of prior conviction, and waived the 60-day period for time of trial. At the request of defendant’s court-appointed counsel an independent mental examination was ordered, pursuant to Rule 250, Arizona Rules of Criminal Procedure, 17 A.R.S., to determine defendant’s ability to understand the nature of the proceedings against him and to assist in his defense.

On April 15, 1968 the court received the report of the two examining psychiatrists and, in accordance with their report, ruled that defendant was at this time incapable of [534]*534assisting in his defense. Defendant was then ordered committed to the Arizona State Hospital until such time as he was able to assist in his defense. On October 14, 1968 the court, having received a report from the Superintendent of the Arizona State Hospital certifying that in the opinion of the examining physician the defendant was now capable of assisting in his defense, set the trial date.

On December 20, 1968 defendant, in the presence of his counsel, withdrew his former plea of not guilty and entered a plea of guilty only to the crime of Grand Theft, Auto, Count II, and admitted his prior conviction in accordance with the plea bargain which defendant allegedly had entered into with the state. The state, thereupon, moved to dismiss Count I of the Information and this motion was taken under advisement by the court. The record reveals that, after interrogation by the court, the court found that defendant had withdrawn his former plea of not guilty and entered his guilty plea “knowingly, voluntarily, and intelligently.”

On December 30, 1968 defendant was adjudged “guilty” of the crime of Grand Theft, Auto, a felony, as charged in Count II of the Information. Once again defendant was asked, in the presence of his counsel, whether he had anything to say or any legal cause to show why the court should not now pronounce sentence. Nothing was said and no legal cause shown, so defendant was sentenced to prison for a term of not less than ten nor more than twelve years. At this time the court ordered that the motion of the State of Arizona, to dismiss Count I of the Information, be granted.

On October 20, 1969, ten months after sentencing, defendant filed a Rule 60(c) motion,1 to vacate judgment and sentence. This motion was denied. From this denial defendant prosecutes this appeal.

On appeal, defendant presents, basically, two arguments:

(1) The trial court had jurisdiction to hear defendant’s motion to vacate judgment and sentence in spite of the fact that defendant had already entered upon execution of sentence.

We are in complete agreement with defendant on this point. Traditionally, trial courts have had the inherent power to vacate, modify, or set aside judgments in the term within which they were rendered. Condos v. Superior Court, 29 Ariz. 186, 239 P. 1032 (1925); Sam v. State, 33 Ariz. 421, 265 P. 622 (1928). Today, in Arizona, when we no longer have set terms of court, in the absence of a specific rule or statute, the inherent power of the trial court to vacate, modify, or set aside its own judgments in criminal cases is governed by Rule 60(c), as amended, Rules of Civil Procedure. The application of Rule 60(c) to criminal matters is well-established. State v. Lopez, 96 Ariz. 169, at 172, 393 P.2d 263, at 265 (1964); Campbell v. Thurman, 96 Ariz. 212, at 214, 393 P.2d 906, at 908 (1964).

The only exception to this inherent power of the trial court (under Rule 60(c), as amended) to provide relief from an order or judgment is where-, an appeal has been perfected. Once the appeal has been perfected the trial court no longer has jurisdiction to rule upon any motion, except one in furtherance of the appeal.

We turn now to defendant’s second argument:

(II) The trial court should have granted defendant’s motion to vacate judgment and sentence since defendant’s plea of guilty was involuntary and as such, was void.

[535]*535Leaving aside, for the moment, the question of the “voluntariness” of defendant’s plea, this Court has, on numerous occasions, ruled that the grant or denial of a Rule 60(c) motion

“ * * * is within the sound discretion of the trial court and its actions will not be disturbed by this court except for a clear abuse of discretion." [Emphasis added]
In Re Estate of Cohen, 105 Ariz. 337 at 340, 464 P.2d 620 at 623 (1970); See also Eldridge v. Jagger, 83 Ariz. 150, 317 P.2d 942 (1957); State v. Horn, 9 Ariz.App. 81, 449 P.2d 317 (1969).”

Here we can find no such abuse of discretion.

Defendant’s contention that an involuntary plea of guilty is void is supported by case law, both state and federal. In State v. Jennings, 104 Ariz. 3, at 5, 448 P.2d 59, at 61 (1968) this Court stated that “[i]t is well understood that any plea which is involuntary is of course void.” Therefore, a judgment based on such involuntary plea would not sustain a conviction and, on motion, would have to be vacated; for it is a trial court’s “duty to expunge from the record a judgment which is clearly void.” Preston v. Denkins, 94 Ariz. 214, at 224, 382 P.2d 686, at 692 (1963).

Within a similar setting the United States Supreme Court has expanded on the above-mentioned theorems stating the following :

“ * * * the nature of a guilty plea. A defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v.

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Cite This Page — Counsel Stack

Bluebook (online)
479 P.2d 417, 106 Ariz. 532, 1971 Ariz. LEXIS 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hogue-ariz-1971.