State v. Johnson

GORDON, Vice Chief Justice:

On August 21, 1979, in cause number CR-108328, appellant Richard Elroy Johnson was charged by indictment with three class 2 felonies — one count of first degree burglary and two counts of armed robbery — arising out of an incident alleged to have occurred on July 25, 1979. On December 2, 1981, appellant was charged by indictment in cause number CR-123493 with a class 5 felony, third degree burglary, arising out of an incident alleged to have occurred on November 15, 1981. The state later amended each indictment to allege two 1968 federal convictions for bank robbery as enhancement. On March 8, 1982, appellant entered into a plea agreement with the state. He agreed to plead guilty in CR-123493 and admit the two prior felony convictions in exchange for the state’s dismissal of CR-108328. The plea agreement contained a stipulation that appellant would be sentenced to six years imprisonment. The trial court accepted the plea agreement and sentenced appellant to the stipulated term.

Notice of appeal was filed from the judgment of guilt and from the sentence. Appellant argued that the superior court should not have accepted the plea agreement because it failed to establish the validity of the two prior convictions. The Court of Appeals found that appellant’s admission of the two prior convictions constituted a waiver of the right to challenge the factual basis of the prior convictions on appeal and stated that appellant “having made his bed must now lie in it.” State v. Johnson, 142 Ariz. 232, 234, 689 P.2d 175, 177 (App.1983).

Appellant petitioned this Court to review the opinion of the Court of Appeals. He notes that the Court of Appeals’ opinion is in direct conflict with an earlier Court of Appeals’ opinion, State v. Draper, 123 Ariz. 399, 401, 599 P.2d 852, 854 (App.1979), which held that a waiver analysis “cannot prevail” in light of Ariz.R.Crim.P. 17.3. We accepted jurisdiction, pursuant to Ariz. Const, art. 6, § 5(3) and Ariz.R. Crim.P. 31.19, to resolve the conflict. The Court of Appeals’ opinion is vacated; the judgment of guilt against appellant is also vacated; the matter is remanded to the superior court for further proceedings.

Ariz.R.Crim.P. 17.3 provides that the trial court must determine that there is a factual basis for the entry of a guilty plea. See State v. Hickey, 110 Ariz. 527, 521 P.2d 614 (1974). This rule requires that the trial court be satisfied that there is a factual basis to support all the essential elements of the charge or charges to which a defendant has pled. State v. Norris, 113 Ariz. 558, 558 P.2d 903 (1976). Ariz.R. Crim.P. 17.6 indicates that this same requirement applies to the admission of a prior conviction. See State v. Canaday, 119 Ariz. 335, 336, 580 P.2d 1189, 1190 (1978) (“[T]he procedures delineated in rule 17 must be followed whenever a prior conviction is admitted, whether such conviction is alleged for the purpose of increasing punishment or as an element of the crime charged * * *.”) Thus, the Court of Appeals’ holding — that appellant’s admission of his prior convictions waives his right to challenge their factual basis — cannot stand. Pursuant to rule 17.6, a criminal defendant who pleads guilty and admits the existence of a prior conviction can, on appeal, attack the sufficiency of the evidence used to prove its factual basis.

In the instant case, appellant raises two challenges to the trial court’s finding of a factual basis for his two prior convictions. Because of our disposition of the first, we do not reach the second.

Appellant challenges the trial court’s use of the 1968 bank robbery convictions for enhancement based on A.R.S. § 13-604(H). That statute provides in pertinent part:

“Convictions for two or more offenses committed on the same occasion shall be counted as only one conviction for purposes of this section.”

Appellant argues that the two prior convictions, one for bank robbery and one for bank robbery with a dangerous weapon, resulted from a single incident and, therefore, should have been used only as a sole prior conviction. The trial court was informed that the two convictions arose from the same incident:

“THE COURT: Are you also prepared to admit that you have two prior felony convictions?

“APPELLANT: Your Honor, I am not sure about that. The way it’s worded there it says two counts of bank robbery.

“THE COURT: Is that true or not true?

“APPELLANT: It’s not true.

“MR. BALKAN: Your Honor, we have discussed this. This — the defendant was convicted in Federal Court of two counts arising out of the same incident. I guess there was one bank robbery. But it appears that one was a count of bank robbery, and the other count was a count of discharging a firearm while in the commission of a felony. But it did arise out of one incident. * * *”

The state presented no rebuttal to appellant’s assertions and the trial court pursued it no further. There is nothing in the record to controvert appellant’s assertion that his prior convictions arose from a single incident. Therefore, we find that the trial court erred in finding a factual basis to support the allegation of two prior convictions available for use as enhancement under A.R.S. § 13-604.

A conviction on a plea of guilty “cannot be sustained unless there is a factual basis to support each of the elements of the crime to which the plea is made.” State v. Carr, 112 Ariz. 453, 455, 543 P.2d 441, 443 (1975). Similarly, a conviction on a plea of guilty with an allegation of prior convictions cannot be sustained unless there is a factual basis to support the prior convictions.

The opinion of the Court of Appeals is vacated; the judgment of guilt against appellant and the sentence imposed upon him are vacated; the trial court’s order accepting the plea agreement is vacated; all charges pending against appellant in CR-108328 which were dismissed pursuant to the plea agreement are reinstated. The matter is remanded to the superior court for further proceedings.

HOLOHAN, C.J., and HAYS and FELDMAN, JJ., concur.