State v. Widmer

OPINION

WREN, Judge.

The defendant, David Widmer, was found guilty of the crime of possession of marijuana, after a submission of the matter to the court on the basis of the preliminary hearing transcript and departmental report. He was given five years probation, with the condition that he be committed to the Department of Corrections for 180 days. On appeal, defendant urges that his submission on the record was tantamount to a guilty plea and was not, therefore, a voluntary and intelligent act because he was not informed of the range of possible sentence for possession of marijuana, nor of the fact that he was waiving his right against self-incrimination.

In State v. Jackson, 24 Ariz.App. 308, 537 P.2d 1366 (1975), this Court expressly held that when a defendant submits his case on departmental reports, there is no requirement that he be advised of the range of possible sentence. The opinion noted that this was not set forth as a requisite in State v. Crowley, 111 Ariz. 308, 528 P.2d 834 (1974), and the Court would not extend Crowley to add such a requirement, even though the submission was tantamount to a guilty plea by virtue of the defendant’s admissions contained in the departmental reports.

More recently, in State v. Hiralez, 27 Ariz.App. 393, 555 P.2d 362 (1976), this Court held that State v. Jackson, supra, was not overruled by the Supreme Court in State v. Gaines, 113 Ariz. 206, 549 P.2d 574 (1976), and that Gaines contained no suggestion of any expansion of the requirements of State v. Crowley, supra. We again hold with Jackson, therefore, that the failure of the trial court to inform the defendant of the minimum and maximum penalty for his offense was not error.

We next consider whether the failure to specifically inform his that he was waiving his right against self-incrimination rendered the submission invalid. When the preliminary hearing transcripts contain evidence more than sufficient for a finding of guilt, Crowley stated that a submission based on such a record is tantamount to a guilty plea and therefore required a record similar to that required in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

The requisite findings were specifically set forth:

“The trial court must determine, and the record must reflect, that the defendant understood the significance and consequences of submitting the case on the basis of the preliminary hearing transcript. It must affirmatively appear in the record that the defendant knew that he was giving up the right to trial by jury, to testify in his own behalf, to call any witnesses, or to offer any further evidence. The record must reflect that the defendant understood that the whole issue of his guilt or innocence of the offense charged was to be made upon the preliminary hearing transcript.” State v. Crowley, 111 Ariz. at 311, 528 P.2d at 837.

It is to be noted that the inquiry by the court relates only to those constitutional guarantees which are lost by not going to trial. The right against self-incrimination is not mentioned as one of the rights waived on a submission, and such a right in our opinion is not waived other than by a plea of guilty or no contest.

The defendant here urges that we follow the holding of the California Supreme Court, that upon a submission to the court the defendant must be informed of and knowingly waive his right against self-incrimination. People v. Levey, 8 Cal.3d 648, 105 Cal.Rptr. 516, 504 P.2d 452 (1973). It is obvious that the California courts have adopted a much stricter standard for submissions on preliminary hearing transcripts than have the Arizona courts. California requires a record identical to that required by Boykin, with a specific and express showing on the face of the record that the defendant understood each constitutional right and waived it. People v. Levey, supra. Arizona, on the other hand, has followed a “common sense” approach to submissions and looks at the record to see if its reflects an understanding of rights and a knowing waiver. State v. Eliason, 25 Ariz. App. 523, 544 P.2d 1124 (1976).

We choose not to follow Levey and agree with the conclusions expressed by Chief Judge Haire in Jackson that:

“The specific requirements imposed in Crowley are for the purpose of making certain that a defendant clearly understands that as a consequence of a proposed submission, he will be giving up his right to trial by jury, and that the whole issue of his guilt or innocence will be decided upon the submitted record. The imposition of additional requirements which do not bear upon the attainment of those purposes is not logically or legally justified.” 24 Ariz.App. at 310, 537 P.2d at 1368. (Emphasis added).

A defendant charged with a criminal offense, even though obviously guilty, may submit the question of his guilt or innocence on the record instead of pleading guilty for a variety of reasons, not the least of which is to preserve certain non-jurisdictional defenses, such as a denial by the court of a motion to suppress. See State v. Lerner, 113 Ariz. 284, 551 P.2d 553 (1976).

We do not agree that a submission involves a waiver of the right against self-incrimination, even when the evidence of guilt is overwhelming. A major distinction between a guilty plea and a submission is that in a guilty plea situation, the court addresses the defendant personally to establish through him a factual basis for the plea.¹ The defendant must then answer the judge’s inquiries as to his involvement in the crime charged. In the submission context, the defendant is not required to give any testimony or statements against himself whatsoever. Guilt is determined solely on the evidence adduced at prior proceedings and any departmental reports submitted to the court. The fact that the reports may contain incriminating statements of defendant does not metamorphose the submission to a guilty plea.

In State v. Gaines, supra, the Supreme Court noted a distinction between a submission tantamount to a guilty plea and one that was not, and stated that the former required “compliance with the mandate of Boykin ”, while the latter necessitated only the due process requirements that the defendant be advised that he was giving up his right to trial by jury and that guilt or innocence would be decided on the submitted record. While we find it difficult to distinguish these requirements of due process from those set forth in Crowley, we find no expression in Gaines, or in Chief Justice Cameron’s dissent therein, that the Crowley warnings should be expanded to include the full Boykin warnings of self-incrimination and the range of possible sentences. Cf. State v. Offing, 113 Ariz. 287, 551 P.2d 556 (1976), wherein these were again eliminated from an extensive enumeration of the due process and Crowley requirements on a submission which had “the same effect as a plea of guilty,” and where the defendant had contended that the plea was not “knowingly, voluntarily and intelligently” made.

We find it noteworthy that the court in Crowley referred to the holding of the California Supreme Court in People v. Levey, supra; then stated that a record similar to that required by Boykin was needed on a submission tantamount to a guilty plea; and then specifically enumerated the applicable rights without even mentioning self-incrimination or the range of sentences. In other words, only the Boykin rights applicable to a submission proceeding on a plea of not guilty were set forth as the requirements.

The dissent suggests that the Arizona Supreme Court has equated the full requirements of Boykin to a submission tantamount to a guilty plea. In the recent decision of State v. Butrick, 113 Ariz. 563, 558 P.2d 908 (filed December 28, 1976), the Supreme Court, in referring to Crowley, said:

“There we were talking about the defendant doing something tantamount to pleading guilty, and, in view thereof, determined that the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), should apply to the situation.”

We do not read this statement to mean that Crowley intended that all Boykin rights apply to submissions tantamount to a guilty plea. The Butrick case did not involve a submission but only a waiver of a jury, and the passing reference to Crowley was purely dicta. The Court’s statement cannot be construed as an authoritative interpretation of the Crowley holding.

Clearly the waiver of rights must be made at the time of the submission. If it is in fact tantamount to a guilty plea, by whom is that determination to be made and when? In State v. Payne, 110 Ariz. 506, 520 P.2d 1130 (1974), the Arizona Supreme Court rejected the defendant’s contention that there was no evidence upon which the court could acquit, noting that the only evidence in the submitted record was the testimony of the ten-year-old victim, and that such testimony was vague and uncertain, and further noting that the trial court had the question of guilt on the submitted record under advisement for eighteen days. It follows that unless the trial court is required to accept, and does accept, defendant’s stipulation, if one is made at all, that the record clearly indicates guilt, the court would have to delay any reference to self-incrimination or the range of possible sentences until it had determined whether the submission was tantamount to a guilty plea. This determination, we can clearly note from judicial experience, might take several weeks. In instances where the defense has some expectation that an experienced trial judge might not find the defendant guilty beyond a reasonable doubt (to use the language of Payne), and the court later determines that the evidence is more than sufficient to support a finding of guilty (to use the language of Crowley), must the court then summon the defendant and advise him of the possible range of sentence and that he waived his right against self-incrimination?

We agree with the statement in the Gaines dissent that whether a submission is or is not tantamount to a plea of guilty is difficult to draw and that Crowley should apply to either. See also the comment in State v. Jackson, supra, that it is immaterial whether the submission on the record was tantamount to a guilty plea or not. We would also add that any distinction becomes even more difficult when attempted by an appellate court whose function is not to weigh the evidence and resolve the inferences. However, a distinction between a submission on the record under a “not guilty” plea and the entry of a “guilty” plea should remain. The two are materially different and factually inconsistent. To wipe out this differentiation might well permit defendants to pervert the salutary purpose of Boykin and ambush trial courts into highly technical errors.

We, therefore, hold that the right against compulsory self-incrimination should play no part of the Boykin rights required by a submission on the record. The rights which are released are fully delineated in Crowley and contain the required similarity to Boy-kin.

The judgment and sentence are affirmed.

EUBANK, J., concurs.

1 . Rule 17.3 Duty of court to determine voluntariness and intelligence of the plea

Before accepting a plea of guilty or no contest, the court shall address the defendant personally in open court and determine that he wishes to forego the constitutional rights of which he has been advised, that his plea is voluntary and not the result of force, threats or promises (other than a plea agreement) and that there is a factual basis for the plea.