State v. Salinas

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.

Mr. 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 pleas and basic guilty pleas is that judges must be particularly careful to establish factual bases for Alford pleas.” The same author notes elsewhere that

Another concern many judges have is that, if courts freely accept Alford pleas, eventually all defendants will use them. Even those defendants who recognize their guilt would probably decide to claim innocence in court. By using Alford pleas, guilty defendants can avoid the embarrassment of telling their stories to family, friends and the public by claiming that they are, in fact, innocent, but are forced to submit to punishment by a coercive system.

Id. at pp. 1075-76; see also Neil H. Cogan, Entering Judgment on a Plea of Nolo Contendere: a Re-Examination of North Carolina v. Alford and Some Thoughts on the Relationship Between Proof and Punishment, 17 Ariz.L.Rev. 992, 1020-22 (1975) (expressing the view that Alford gives insufficient weight to the historical concern for certainty of proof in felony cases). For these and other reasons, the courts of some states forbid the use of Alford pleas altogether. See Trueblood v. State, 587 N.E.2d 105 (Ind.1992) (acceptance of Alford pleas constitutes reversible error); cert. denied, — U.S. at --, 113 S.Ct. 278, 121 L.Ed.2d 205 (1992); People v. Butler, 43 Mich.App. 270, 204 N.W.2d 325, 329-30 n. 2 (1972) (trial court may not accept a plea of guilty unless the defendant personally gives facts sufficient to constitute guilt); State v. Korzenowski, 123 N.J.Super. 454, 303 A.2d 596, 597 n. 1 (Ct.App.Div.1973) (citing a supreme court directive prohibiting the use of Alford pleas), cert. denied, 63 N.J. 327, 307 A.2d 100 (1973).

A defendant who enters an Alford plea must undertake a risk benefit analysis, and in our opinion, it ought to be clear on the record that the defendant understands that is what he is doing. As we said in State v. King, 116 Ariz. 353, 356, 569 P.2d 295, 298 (App.1977), the entry of a plea pursuant to Alford rests on the defendant’s acknowledgement that he is entering the plea of guilty despite his protestation of innocence because he recognizes that in view of the quantity and quality of evidence against him, conviction of the offense, or of a greater crime, or of multiple offenses, may occur if he goes to trial. In our opinion, the entry of a plea of guilty is too serious an event to leave this acknowledgement to inference. For that reason we disagree with the approach that Division Two of this court took in State v. Moreno, 16 Ariz.App. at 191, 492 P.2d at 440, when it inferred that the defendant knew the guilty plea was in his best interests even though he protested his innocence.

This matter must be remanded to the trial court for consideration, upon hearing, of whether the Defendant intended to admit that he possessed the marijuana for sale. If he did not, the Defendant may enter a plea of guilty to that charge pursuant to Alford provided that it is clear that he wishes to do so. If the Defendant seeks to withdraw his plea of guilty to the charge of possession of marijuana for sale, he may do so, in which case he can be tried on that charge. In the event the Defendant does withdraw his plea, since the validity of that plea may have been an essential element of the plea agreement, the State may, if it so desires, move the trial court to vacate the convictions for trespass and for the weapons offense so that it may proceed anew against the Defendant on all the original charges.

We turn to the Defendant’s claim that the trial court abused its discretion by not finding any mitigating factors. The Defendant presented evidence of mental health problems as well as evidence of his remorse. The judge gave no weight to these, and instead found aggravating circumstances in the Defendant’s prior felony convictions and the fact that he committed the offenses for which he was sentenced while he was on release in another case. The trial court was free to reject the Defendant’s mitigation evidence and arguments. See State v. Fatty, 150 Ariz. 587, 592, 724 P.2d 1256, 1261 (App.1986). We see no abuse of discretion in his having done so in this ease.

For the reasons stated in this decision, we reverse the Defendant’s conviction and sentence on the count of possession of marijuana for sale and remand for further proceedings.

CLABORNE, P.J., concurs.