State v. Hinchey ( 1995 )

FELDMAN, Chief Justice,

specially concurring.

I concur in the majority’s conclusion that Hinchey’s death sentence must be affirmed. Although I cannot agree with the court’s reasoning on the double jeopardy issue, I ultimately agree that the present record fails to show that jeopardy attached to Hinchey’s life sentence. In my view, however, the question is closer than the court’s analysis admits.

The record here hints that, as in Cuffle v. Goldsmith, 906 F.2d 385 (9th Cir.1990), the parties believed or agreed that Hinchey’s first trial judge could impose the death penalty even if he accepted Hinchey’s plea.¹ And if that is true, the judge could have “acquitted” Hinchey of the death penalty in finding that no aggravating circumstances existed and in imposing a life sentence.²

The record on these questions, however, is not as clear as in Cuffle. Thus, any other resolution will have to be left to post-conviction proceedings in which the record can be more fully developed and it can be determined whether there was an understanding, tacit or explicit, that the trial judge retained the prerogative to impose death after accepting the plea.

1 . The propriety of this under Ariz.R.Crim.P. 17.4(e) would affect only the validity of such a belief or agreement, not its existence. Moreover, as the court notes, Hinchey's first trial judge was not always constrained by the Rules of Criminal Procedure.

2 . I disagree that there “were no merits” and that there "was no evidence." There was ample evidence in the presentence report. The trial judge in fact considered it in finding aggravating factors for Hinchey’s non-capital convictions. He similarly could have used it, and may well have, in finding no capital aggravating circumstances. See A.R.S. § 13-703(C).