State v. Salinas

880 P.2d 708, 179 Ariz. 488, 159 Ariz. Adv. Rep. 26, 1994 Ariz. App. LEXIS 32
CourtCourt of Appeals of Arizona
DecidedMarch 1, 1994
DocketNos. 1 CA-CR 92-1449, 1 CA-CR 92-1450
StatusPublished
Cited by1 cases

This text of 880 P.2d 708 (State v. Salinas) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Salinas, 880 P.2d 708, 179 Ariz. 488, 159 Ariz. Adv. Rep. 26, 1994 Ariz. App. LEXIS 32 (Ark. Ct. App. 1994).

Opinions

OPINION

KLEINSCHMIDT, Judge.

Jeffrey F. Salinas appeals from the judgments of guilt and sentences imposed on his convictions for residential trespass, possession of marijuana for sale, and possession of a defaced weapon. He argues that the factual basis to support his plea of guilty to the charge of possession of marijuana for sale was insufficient and that, because the trial court did not accept his arguments in mitigation, it abused its discretion in imposing sentence. Although we conclude that the trial court did not err in sentencing, we hold that the factual basis to support the Defendant’s guilty plea to possession of marijuana for sale was insufficient. We set aside his conviction and sentence on that count.

The Defendant was charged, by information, with one count of residential trespass, a class 6 felony. Later, the Defendant was also charged, by indictment, with the following: possession of less than one pound of marijuana for sale, a class 4 felony; possession of a concealed weapon while committing a drug offense, a class 4 felony; and possession of a defaced deadly weapon, a class 6 felony. He originally pled not guilty to each count, but later entered into a plea agreement in which he pled guilty to residential trespass, possession of less than one pound of marijuana for sale, and knowingly possessing a defaced deadly weapon. In return, the State agreed to allege neither prior felony convictions nor conviction of a felony committed while on release for a felony.

After accepting the plea agreement and adjudging the Defendant guilty, the trial court sentenced him to the following aggravated terms of imprisonment: 1.875 years for trespass, 5 years for possession of marijuana, and 1.875 years for possession of a defaced weapon. The court ordered all the sentences to run concurrently and gave credit for forty-six days of presentence incarceration. It also ordered Defendant to pay assessments, fines and surcharges.

A trial court may enter a judgment on a guilty plea only after it determines, by strong evidence, that a factual basis exists for each element of the crime. State v. Wallace, 151 Ariz. 362, 365, 728 P.2d 232, 235 (1986), cert. denied, 483 U.S. 1011, 107 S.Ct. 3243, 97 L.Ed.2d 748 (1987). Strong evidence exists when the defendant clearly and affirmatively admits his guilt. See State v. Tucker, 110 Ariz. 270, 271, 517 P.2d 1266, 1267 (1974); State v. Campbell, 107 Ariz. 348, 351, 488 P.2d 968, 971 (1971). A plea of guilty with a protestation of innocence is in effect, a plea of no contest which requires an express finding that acceptance of the plea is in the interests of the effective administration of justice. Ariz.R.Crim.P. 17.1(c). No such finding was made in this case.

Here, at the change-of-plea hearing, the prosecutor gave the following factual basis for the crime:

Officer Weems found in Mr. Salinas’s shoe a baggie of marijuana, approximately half an ounce, that Mr. Salinas said he was going to sell to someone on the east side of town, that being Flagstaff.
[490]*490Mr. Salinas admitted that he had the marijuana for sale and that it was in fact marijuana. It was a usable amount.

When the trial court asked the Defendant if this statement was correct, he replied, “The marijuana wasn’t for sale, but—And the residential trespass—It’s all true.”

Because of the importance of insuring that guilty pleas are a product of free and intelligent choice, when a plea of guilty is coupled with a defendant’s protestation of innocence, the trial court has a duty to inquire into and resolve the conflict between the waiver of trial and the claim of innocence. State v. Reynolds, 25 Ariz.App. 409, 413, 544 P.2d 233, 237 (1976). That was not done in this case.

We have examined the extended record to see if it will support the plea. See State v. Rodriguez, 112 Ariz. 193, 194, 540 P.2d 665, 666 (1975) (admission in presentence report sufficient to support plea). Here, however, the presentence report does not demonstrate, by strong evidence, that a factual basis exists for each element of the charged crime. Although it recites that when the police arrested the Defendant and found marijuana on his person, he told the police that he was going to sell it because that was the only way he knew how to make money, the report also notes that the Defendant retracted this statement, claiming that he was drunk when he made it. Defense counsel clearly explained this contradictory evidence to the trial judge stating:

As far as the possession of marijuana for sale, I’ve also read the police reports, and I do know that Mr. Salinas told I believe it was Officer Weems or another officer that the marijuana was for sale; however, he states now that he was exaggerating. That was just something that he was telling them.

Consequently, the judgment of conviction and sentence for possession of marijuana for sale cannot stand.

The dissent merits comment. The dissenter says that the trial judge, who observed and heard the Defendant firsthand,’ interpreted the Defendant’s comment, “It’s all true,” to encompass everything that had been alleged against the Defendant. There is nothing to indicate that the judge interpreted the comment in that manner, if indeed it would be. reasonable to do so. At the very least, what the Defendant said was so ambiguous that the trial judge should have clarified it before proceeding.

The dissent also says, citing North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and State v. Moreno, 16 Ariz.App. 191, 492 P.2d 440 (1972), that there is no requirement that the Defendant actually acknowledge guilt, as long as there is otherwise a factual basis to support the plea of guilty. As we have said in a different context, Alford pleas, while constitutionally permissible, are not favored. State v. Dockery, 169 Ariz. 527, 528, 821 P.2d 188, 189 (App.1991); Duran v. Superior Court, 162 Ariz. 206, 207, 782 P.2d 324, 325 (App.1989). In Duran, we pointed out that among the objections to the use of the Alford plea is the perception that courts which accept such pleas may be avoiding their duty to determine the truth and that—worse yet—a resort to Alford enhances the possibility of punishing those who are not blameworthy. 162 Ariz. at 208, 782 P.2d at 326; see also 2 D. Rossman, Criminal Law Advocacy § 9.02(c) at 9-20 to 9-25 (1989). A good discussion of the pros and cons of accepting Alford pleas is found in Curtis J. Shipley, The Alford Plea: A Necessary but Unpredictable Tool for the Criminal Defendant, 72 Iowa L.Rev. 1063, 1070-71 (1987), in which the author notes that “A major difference between Alford

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Related

State v. Salinas
887 P.2d 985 (Arizona Supreme Court, 1994)

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Bluebook (online)
880 P.2d 708, 179 Ariz. 488, 159 Ariz. Adv. Rep. 26, 1994 Ariz. App. LEXIS 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-salinas-arizctapp-1994.