Opinion
1 CA-CV 11-0194
01-24-2012
FRANCIS FLETCHER, Petitioner/Appellant, v. HONORABLE JOSEPH C. KREAMER, Judge of the Maricopa County Superior Court, Respondent Judge/Appellee, STATE OF ARIZONA ex rel. Lynn R. Arough, Gilbert Town Prosecutor, Real Parties in Interest/ Appellees.
Ballecer & Segal By Natalee Segal Law Offices of Neal W. Bassett By Neal W. Bassett Attorneys for Petitioner/Appellant Lynn R. Arough, Gilbert Town Prosecutor by Denise E. Boode, Assistant Town Prosecutor Attorneys for Real Parties in Interest/Appellees
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c);
Ariz.R.Crim.P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV LC2010-000758-000 DT
The Honorable Joseph C. Kreamer, Judge
AFFIRMED
Ballecer & Segal
By Natalee Segal
and
Phoenix
Law Offices of Neal W. Bassett
By Neal W. Bassett
Attorneys for Petitioner/Appellant
Phoenix
Lynn R. Arough, Gilbert Town Prosecutor
by Denise E. Boode, Assistant Town Prosecutor
Attorneys for Real Parties in Interest/Appellees
Gilbert WINTHROP, Chief Judge
¶1 Francis Fletcher ("Appellant") appeals from the superior court's denial of relief on his petition for special action. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In March 2010, Appellant was arrested and charged in the Gilbert Municipal Court with two counts of driving under the influence. The State provided Appellant with a tentative plea offer to suspend a 179-day jail term if he pled guilty to violating Arizona Revised Statutes section 28-1381(A)(1) (West 2012), a class 1 misdemeanor. Before entering any formal plea agreement, Appellant filed a motion stating that the Gilbert prosecutor's office "routinely imposes a suspended maximum jail sentence as a condition of probation in all criminal cases" and that it is illegal for the State to do so.
We cite the current version of the statute available on Westlaw because no revisions material to our decision have since occurred.
¶3 The municipal court denied Appellant's motion, stating that "[t]he plea offer alleged in [Appellant's] motion contemplates a suspended sentence that falls within the lawful sentencing ranges set by statute for the offense at issue. The offer on its face is lawful and [Appellant] may accept or reject it." The municipal court then granted a stay, allowing Appellant to file a petition for special action in the superior court.
¶4 The superior court held a hearing on the matter. The State informed the court that the plea offer does not require the court to impose a 179-day jail term for every probation violation. Rather, the suspended 179-day jail term is simply intended to advise Appellant of the maximum sentence that he could receive if he violates probation. Appellant argued that although Gilbert courts have not actually imposed the 179-day jail term on every probation violator who has signed a similar plea agreement, the plain language of the plea offer does require Gilbert courts to impose such sentences. The court accepted special action jurisdiction but denied relief. Appellant filed a direct appeal from the superior court's denial of his petition for special action.
DISCUSSION
¶5 Appellant argues that the plea offer misrepresents the actual consequences of violating probation and that judges should not accept such plea agreements. Defense counsel also argues that it is difficult to advise Appellant and other defendants about the consequences of pleading guilty because the suspended 179-day jail term is "completely superfluous." Finally, Appellant relies on State v. Baum, 182 Ariz. 138, 893 P.2d 1301 (App. 1995), to argue that the suspended 179-day jail term amounts to an illegal, preordained sentence.
¶6 We lack jurisdiction over Appellant's direct appeal because the superior court's decision was not a final judgment from which a direct appeal may be taken. In the exercise of our discretion, however, we elect to accept special action jurisdiction.
¶7 We find no support for Appellant's arguments. Appellant "has no right to a plea offer from the prosecution and thus has no ground to complain about the terms of any such offer." State v. McInelly, 146 Ariz. 161, 165, 704 P.2d 291, 295 (App. 1985). Appellant is free to reject the offer.
¶8 The offer does not amount to an illegal, preordained sentence because, as Appellant admits, Gilbert courts do not actually impose the 179-day jail term for every DUI probation violation. Nothing in this record suggests that a Gilbert court would fail to weigh aggravating and mitigating circumstances if Appellant were to enter the proposed plea agreement and later violate probation. Furthermore, as noted by the Gilbert Municipal Court Judge, the suspended 179-day jail term is an authorized sentence for a class 1 misdemeanor. Accordingly, we cannot say the plea offer, either on its face or as applied here, is illegal.
CONCLUSION
¶9 For the reasons above, we affirm.
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LAWRENCE F. WINTHROP, Chief Judge
CONCURRING:
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DIANE M. JOHNSEN, Presiding Judge
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DONN KESSLER, Judge