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);
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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