Attorney At Law Magazine Vol 5 Issue 10 - Page 39

The Arizona Supreme Court recently discussed in State v. Rose, 231 Ariz. 500, 297 P. 3d 906 (2013) what else should be in the judge’s colloquy with the defendant, where there is a plea of guilty in a capital case without a plea agreement. Phoenix Police Officer George Cortez Jr. was responding to the report of a crime in progress where defendant was attempting to cash a forged check at a check cashing store. With one hand in handcuffs, the defendant was able to grab his gun, shoot the officer and run. Officer Cortez died at the scene. Rose was arrested the next morning. Rose pleaded guilty, without a plea agreement, to first degree murder of a law enforcement officer, first degree felony murder, and eight other noncapital felonies, but where the penalty stage was before a jury which sentenced defendant to death. The Supreme Court set forth the general rule [Boykin v. Alabama, 395 U.S. 238, 243-44 (1969)] that when accepting a guilty plea in a death case the trial court must ensure that defendant understands: (1) the nature of the charges, (2) the nature and range of possible sentences, including any special conditions, (3) the constitutional rights waived by pleading guilty, (4) the right to plead not guilty, and (5) that the right to appeal is waived if the defendant is not sentenced to death. The Supreme Court advised as part of the colloquy under Rule 17.2, the trial court should establish, through avowal of defense counsel, and acknowledgment of defendant, that the nature of the offense, the intent required to commit it and the consequences of pleading guilty have been discussed with him. It is important to establish that defendant does not dispute the factual basis of the charges. At the same time the court makes clear there is no duty to advise defendant of each specific element of his crimes, to explain the distinction between first and second degree murder, or obtain a waiver of defenses alleged including a guilty except insane defense. There is no need for the trial court to advise defendant of any defenses suggested by the record. Finally the court notes that while defendant must be advised that he is waiving his right of appellate review with respect to noncapital cases [A.R.S. 13-4033 (B); Ariz. R. Crim. P. 17.2 (e)], no such warning is required with respect to a plea of guilty to capital convictions as the Supreme Court must review all death sentences. A.R.S. §13-756 (A); take a seat Flight Training Sales / Rental Fast Track Programs 4710 E. Falcon Drive Suite 215 Mesa, AZ 85215 (602) 574-5376 Mon. to Fri. 9am-6pm Sat & Sun 10am-5pm Ariz. R. Crim. P. 31.2 (b). The mandate of §13-756 (A) requires the Supreme Court to review all death sentences to determine whether the trier of fact abused its discretion in finding aggravating circumstances and imposing a sentence of death. Robert L. Gottsfield is a graduate of State of University of N.Y. (Binghamton) (B.A. 1956), Cornell Law School, (J.D. 1960), and ASU (Master of Counseling, 1981). He clerked for the Supreme Court, Appellate Division, Third Department, in Albany N.Y. (1960-1962) and became a research staff attorney to the court (1963). He joined the Phoenix law firm of Rawlins, Ellis Burrus & Kiewit, in 1963, and eventually became a partner specializing in banking, bonds and commercial litigation. He was appointed to the Superior Court, Maricopa County in 1980 and is presently on the criminal bench. He is a frequent contributor to legal publications. Vol. 5 No. 10 Attorney at Law Magazine® Greater Phoenix | 39