Opposition Brief — Leroy McGill, Petitioner v. David Shinn, Director, Arizona Department of Corrections, Rehabilitation and Reentry, et al.
Supreme Court briefOct 12, 2022
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No. 22-5073
IN THE
SUPREME COURT OF THE UNITED STATES
LEROY MCGILL,
PETITIONER,
“yg
DAVID SHINN, et al.,
RESPONDENT.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
APPENDIX TO
BRIEF IN OPPOSITION
MARK BRNOVICH
ATTORNEY GENERAL
JOSEPH A. KANEFIELD
CHIEF DEPUTY AND CHIEF OF STAFF
JEFFREY L. SPARKS
DEPUTY SOLICITOR GENERAL/
SECTION CHIEF OF CAPITAL LITIGATION
ERIN D. BENNETT
ASSISTANT ATTORNEY GENERAL
(COUNSEL OF RECORD)
CAPITAL LITIGATION SECTION
2005 N. CENTRAL AVE.
PHOENIX, ARIZONA 85004
ERIN. BENNETT@AZAG.GOV
CLDOCKET@AZAG.GOV
TELEPHONE: (602) 542-4686
ATTORNEYS FOR RESPONDENT
A-3-A-138
A-14—A-16
A-17-A-33
A-34-A-69
A-70—A-76
A-77-A-79
APPENDIX
TABLE OF CONTENTS
Sizemore’s Change of Plea Transcript
Sizemore’s Change of Plea Minute Entry
State’s Motion to Allow Sizemore to Withdraw from Change of Plea
Sizemore’s Response to and Rejection of the Attorney General’s
Invitation to Allow the State to Kill Him
State's Reply to Defense Rejection of Withdrawal Opportunity
Sizemore Court Ruling
A-2
raete
L *:2* IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR TRE COUNTY OF NAVAJO
2
STATE OF ARIZONA,
4 )
)
5 Plaintizf, ) CASE NO.
)
6 )
vs. ) CR 2001-0338
7 )
)
8 MARK E. ALLRED, SCOTT B, }
BRIAN, AND NICHOLAS )
9, SIZEMORE, )
)
10 )
Defendants. )
REPORTER'S TRANSCRIPT OF
13 PROCEEDINGS
15 Proceedings before the Honorable
16 Dale P. Nielson, Judce of the Superior Court of Navajo
17 County, Holbrook, Arizona on duly 24, 2002, at about the
18 hour of 1:31 p.m.
REPORTED BY:
JOSIE ROPER, RPR, CSR #5C5i1
23 JOSIE ROPER, RPR, CSR # 50511
ROPER REPORTING
24 2.0. BOX 23871
FLAGSTAFF, ARIZONA 86002
25 (928) 774-9601
te
1
2
3 A2PEARANCES
5 FOR THE STATE:
7 JOSE?H DUARTE, ESQUIRE
Office of the Attorney General
8 1275 W. Washington
Phoenix, Arizona 85007
10 FOR DEFENDANT ALLRED:
11 CONRAD BARAN, ESQUIRE AND
EMERY LA BARGE, ESQUIRE
Le Public Defender's Office
Holbrook, Arizona 86025
FOR DEFENDANT SIZEMORE:
THOMAS A, GORMAN, ESQUIRE AND
15 THOMAS J. PHALEN, ESQUIRE
45 W. Jefferson, Suite 506
16 Phoenix, AZ 85003
17 FOR DEFENDANT BRIAN:
18 PATRICK MCGILLICUDDY, ESQUIRE AND
MONIQUE M. BRANSCOMB, ESQUIRE
19 331 8. ist Avenue, Suite 108
Phoenix, Arizona 85003
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ah
1 PROCEEDINGS
2
3
4 THE COURT: This is CR 2001-338, State
t versus Allred, Brian, anc Sizemore. The record will
6 reflect the presence of Joe Duarte on behalf of the State
7 Attorney Gersral's Office,
8 MR. McGILLICUDDY: Good afternoon. Pat
9 MoGillicuddy for Mr. Brian, who is the second of the
10 three defendants in the jury box, and I think he wants to
il stay there, correct, Scott? And we're ready.
12 THE COURT: Mr. Phalen and Mr. Gorman
13 present on behalf oF Mr. Sizemore. Mr. Sizemore, do you
14 want to sit with your attorney?
15 DEFENDANT SIZEMORE: Yes.
16 THE COURT: You may do that.
7 MR. PHALEN: Thank you, your Honor.
18 THE COURT: And Conrad Baran and Emery
19 ba Barge for Mark Allred, who is present.
20 MR. BARAN: Preliminarily, I wonder if it
21 is okay if Mr. Allrec's hand was free so he could write,
22 If it's a proplem, that’s fine, but...
23 THE COURT: I don't have a problem with
24 the one hand being freed up so you can write.
25 I should probably figure out where we want
=3=
1 to proceed. I don't know if counsel have met and
2 discussed or if there's a agreement on what motions you
3 want to be heard today or not.
4 MR. PHALEN: I prepared a list of motions
5 just from my review of the file, and I e-mailed to all
6 counsel.
7 THE COURT: Okay.
8 MR. PHALEN: But I didn't e-mail to you.
9 If I could approach, this is my list, and I think Mr.
10 Gorman has a couple others related specifically to
TL experts, So there would be 12. That's just my
12 suggestion.
13 TRE COURT: Okay. You had wanted to get
14 Miss Pineda on the phone for an issue?
15 MR. DUARTE: If I may, your Honor, there
16 are a couple of things that have occurred, and I wanted
17 to set the record -- to meke it clear why we're
18 proceeding, addressing some of these motions, perhaps as
19 a priority.
20 THE COURT: Okay.
21 MR. DUARTE: With the Court's permission,
22 we were poised to begin adducing evidence in the panoply
23 of defense motions wnich ere termed as B-yard motions,
24 wnich are alleging overreaching by the Department of
25 Corrections and interference with different aspects of
ate
1 attorney/client relationship and other
onstitutionally based conditions. We have concluded
Ad
a ran erenand nae and
11 at my instruction. I would not be able to address the
12 videotape, because only -- at no point in time have I
13 received any motions detailing that. I have received a
14 letter from Mr. Phalen requesting that. I have
15 respectfully declined, but I have no motions with any
16 case law that he may be citing to be able to contradict
" v7 at this time,
18 THE COURT: What was the one you could
19 address?
20 MS. PINEDA: There's a motion regarding
21 questioning of Sergeant Peck, where I instructed Sergeant
22 Peck mot to answer wnat I believed to be the ultimate
23 issue before the Court.
24 THE COURT: All right. What would that
25 be? What is that titled, that motion?
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1 MR. PHALEN: It's a motion to compel
2 discovery and for evidentiary hearing.
3 THE COURT: All right. That's number
4 caree.
% MR. PHALEN: Right.
6 THE COURT: All right. There's a motion,
R Mr. Brian's motion for an order releasing DOC files to
8 his attorneys. Mr, MceGiliicuddy indicated that he
9 thought that was being worked on.
10 MS. PINEDA: That's correct. I am
11 currently working on that for him
12 THE COUR’ All right. Let's take up,
13 <nen, Mr. Sizemore’s motion to compel discovery and for
14 an evidentiary hearing regarding Sergeant Peck's refusal
15 to answer whether he will cease interrogating Mr.
16 Sizemore. That is Mr. Phalen and Mr. Gorman.
17 MR. McGILLICUDDY: Could I speak to Mr.
18 Gorman and Mr. Phalen for just a moment, Judge? It might
19 sate a little time.
20. TRE COURT: Sure.
21 MR. McGILLICUDDY: May we go outside?
22 THE COURT: Sure.
23 MR. McGILLICUDDY: Your Honor, Mr. Gorman
24 and Phalen and Branscomb and I and our clients would
25 request a 15- to 20-minute recess. A matter has come up
=10-
1 that may affect the outcome of the case, and we will need
2 to discuss with our clients in confidence, but maybe
3 perhaps together.
4 SHE COURT: Do you want to mest together
5 as counsel first.
6 MR. McGILLICUDDY: Pardon me?
7 THE COURT: Do you want to meet with your
8 clients or counsel?
9 MR. GORMAN: Counsel briefly. We'd like
10 to meet, but then, yeah, probably with both clients,
11 also,
12 MR, GORMAN: We met in this jury room
13. earlier.
14 THE COURT: However you can work it out
AB
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15
with the deputies. Just let me know when you're ready.
16 MR. McGILLICUDDY: Let's all counsel,
DY we'll meet, and then we can meet individually with our
i8 clients. That came as a surprise, Judge.
19 (A brief recess was taken.)
20 THE COURT: Back on the record in CR
21 2901-338. All parties are present.
22 MR. GORMAN: We -- your Honor, may I
23 speak? Tom Gorman on behaif of Mr, Sizemore. We're
24 ready to enter a change of plea to the indictment. We're
25 ready to proceed rigat now if the Court's ready.
ais.
1 THE COURT: I'm ready.
2 MR. DUARTE: If I may, your Honor, your
3 Honor, I don't oppose the change of plea, but I do
4 request on behalf of the victim a reasonable time to
5 contact hez. She lives in Tucson. I would ask you to
6 scaedule this perhaps for Monday or Tuesday of next week.
7 I'll make it my pricrity, but I do need to observe the
8 vieotim's rights requirement that I have contact with her,
39 TRE COURT: I didn't think the victim's
10 sights applied to inmates.
uhh MR. GORMAN: Could I interject something?
12 MR. DUARTE: Please,
13 THE COURT; That was Mr. Brown's position
14 wnen I asked nim about that a long time ago.
15 MR. GORMAN: This is a different point. T
16 understand Mr. Duarte's concern, however, that
17 cequirement, I believe, end we can check by looking at a
18 statute, only applies if the State makes an offer of a
19 plea agreement, then they would have to contact the
20 victim. They have not made an offer. We're pleading to
21 the indictment, so there's no notification requirement
22 because there's no State o=fer.
23 Secondly, I assume that the victims were
24 notified of this proceeding, this Court date, so -- but,
25. in any event, we're prepared to go forward today, and,
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1 Judge, I cannot in any way assure thet there will be a
2 cnange of p if it goes past today.
3 THE COURT: Thank you. Mr. Gorman, Mr.
4 MeGillicuddy?
5 MR. McGILLICUDDY: Yes, sir.
6 TRE COURT; Where are you at with Mr.
7 Brian?
8 MR. McGILLICUDDY: I've been advised by
9 Mr. Brian that following the proposed change of plea,
10 chat he will enter a change of plea, as well.
11 THE COURT; Thank you. Mr. Baran on
12 behalf of Mr. Allred?
13 MR, BARAN: We won't have a change of plea
14 proceedings; we will not.
15 THE COURT: If you look at the definition
16 of victim that's in 13-4402, Paragraph 19, there's a
17 section for a person in custody.
18 MR. DUARTE: Excuse me, Subsection 19,
A6
19 Your Honor, I do read thet. Your Honor, let -- if I may
20 just have a moment.
21 THE COURT; Sure.
22 MR. DUARTE: Your Honor, not to try the
23 Court's patience, but in view of the fact that this isn't
24 -- the rarest, counsel may actually be right about this.
25 As a moral imperative, I do have the victim's next of
~i3-
L xin's phone number. If I can just call her and tell her
2 waat's transpiring, I will be back in the courtroom in,
3 literally, five minutes.
4 MR. GORMAN: I have no objection to that.
r] MR. McGILLICUDDY: No objection.
6 THE COURT; We'll take a brief recess for
7 you to do that.
8 (Whereupon, a brief recess was taken,
9 aiter which, the following proceedings
10 occurred.)
11 THE COURT: Mr. Baran, are we going to
12 need to go forward? Well, I better wait for Mr. Duarte
13 before I ask you that question.
14 THE COURT: Back on the record in CR
15 2001-338; all parties are present. Mr. Gorman indicated
16 your client is ready to enter a plea. Mr. Duarte, what's
17 your position on this?
18 MR. DUARTE: First of all, I thank the
19 Court for its professionalism. I did contact the
20 victim's next of kin. She is aware of the situation and
21 does not have any other observations to impart to the
22 Court at this time. As far as I'm concerned, your Honor
22) your Honor has cited to the appropriate chapter and verse
24 ia the criminal code regarding the definition of the word
25 vietim. The only proviso = have, I'm not in a position
<14<
1 co waive it right new. If there is an authority that is
2 interpreted slightly differently, as much as the Miranda
3 warnings, the definition of in custody is a bit different
4 wnen you're in an institction or penal facility. There
5 may be some authority out there which I am not presently
6 aware of that requires notification of the victim or the
7
8
9
10.
victim's next of kin, since he's passed away. If that
happens, I will brief that immediately, but if not, TI
have nothing else.
THE COURT: Do you have any objection to
11 the State going forward with the plea?
12 MR. DUARTE: I would note my objection
13 your Honor, in the absence of the opportunity to
14 determine specifically whether the decedent had forfeited
15 his rights simply by virtue of his status as an inmate.
16 THE COURT: Thank you. Your objection
17 goes to the question of victims rights, notification?
18 MR. DUARTE: Yes, your Honor, that's all.
19 Thank you.
20 THE COURT: Thank you. All right. Are we
21 ready to go forward, then?
22 MR. GORMAN: Where did you want us to
AT
9 -£10 @nomnny 144 Ane
23 stand.
24 THE COURT: Right there is fine.
25 Mr. Sizemore, would you please state your
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1 full name and date of birth.
2 THE DEFENDANT: Nicholas Sizemore
a 19/4/79.
4 THE COURT: Mr. Sizemore, do you read and
5 understand the English lenguage?
6 THE DEFENDANT: Yes, I do.
7 THE COURT: Have you had any drugs,
8 cohol, or medication in the last 24 hours?
9 THE DEFENDANT: No, I have not.
10 TRE COURT: You have had a chance to talk
41 with your attorneys about changing your plea from not
12 gailty to guilty?
13 THE DEFENDANT: Yes, I have.
14 THE COURT: And your counsel have
= cussed with you all of the ramifications that surround
16 the change of plea =rom not guilty to guilty?
17 TEE DEFENDANT: Yes, they have.
18 THE COURT: Okay. We don't have a written
19 plea agreement; my understanding is that you simply want
20 to change your plea to the indictment from not guilty to
21 guilty, is that correct?
22 THE DEFENDANT: Yes, I do.
23 THE COURT: Okay. Did I ask if you had
24 any drugs, élcohel, or medication in the last 24 hours?
25 THE DEFENDANT: Yes, you did.
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1 THE COURT: Okay. I need to get File A.
2 Eas anyone forced or threatened you to
3 maxe this decision to change your plea?
4 THE DEFENDANT: No, they haven't.
5 THE COURT: Have they promised you
6 anything to get. you to change your plea?
7 THE, DBFENDANT: No, they haven't.
8 THE COURT: You are charged in the
] indictment with firs= decree murder, a class 1 felony. T
10 geess this is where I'm coing to have a question.
11 Counsel, obviously, the way the indictment was charged, I
12 was given a possible seeking of the death sentence. The
ss decision has come down declaring Arizona's statute
14 unconstitutional. I have to advise Mr. Sizemore of the
15 range of sentence, possible penalty.
16 MR. GORMAN: Correct.
17 THE COURT: So I guess I'd like to hear
18 from counsel.
19 MR. GORMAN: I can address that.
20 THE COURT: What is your position on the
21 range of sentence?
22 MR. GORMAN: I suspect the Court would
23 agree that there's no constitutional death penalty
24 statute presently in Arizona. We certainly have advised
25 Mr. Sizemore there is not. Mr. Sizemore has made his
AB
pMOMANT LIE OM
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~ decision to plead guilty with the understanding that his
2 uilty plea and the acceptance of the plea by the Court
3 will result in a penalty of life imprisonment either
I 4 nacural or 25 calendar years patrol eligible; that is
5 all. He is basing his decision on his understanding that
6 no death penalty stacute presently applies to him, nor
7 because there is no Geath penalty statute in Arizona nor
8 will any deeth penalty stetute apply to him should he be
g sentenced in 60, 90, 120 days; that the only possible
10 penalty he is facing is natural life or 25 calendar
il years. And that's his urderstanding, and that is, in
12 large part, the material reason he is pleading guilty.
13 THE COURT: Thank you.
14 MR. GORMAN: And, Judge, if I could also
15 add, it's speculative fer any other position at this
16 point, because there's nc _egislation passed, and et
17 cetera, et cetera.
18 THE COURT: Mr, Duarte, what's your
19 position?
20. MR. DUARTE: There's no way to soften the
21 fll implication of Ring's decision, that being that
22 re is not presently a sentence that can implement the
23 taxing of a life here in Arizona, So this point, we have
24 a brief that we normally submit that would address
25 caregorically the situation that's before the Court, but
2185
1 that would be -- I don't went to use the word
2 speculative, out that is something that I cannot urge at
2. this particular point in time, because unless there's
4 something that I can put before the Court that is
5 precedent that is on the books or that is case law and
6 has been handed down even and a half emergency posture, I
7 cannot urge a position where there's a void, So at this
8 point, I can't add a whole lot to what counsel has said.
3 Opviously, we are suggesting that I'm sure the
10 legislature will work that out, but today as we stand in
11 court, there does not appear to be a viable death penalty
12 sentence to which Mr. Sizemore would be exposed.
13 Thank you.
14 THE COURT: Mr. Sizemore, the range of
15 sentence for this plea is either natural life, which
16 means that you would not be eligible for parole for any
17 reascn, or you could not be released until having
18 served 25 calendar years; so those are the possible.
19 MR. GORMAN: And ,dudge, just so the Court
20 can add, there is a possibly of either concurrent or
21 consecutive sentence on the prison term Mr. Sizemore is
22 presently serving.
23 THE COURT: That is correct. They could
24 also be consecutive. I don't know what your situation
25 is.
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MR. GORMAN: Consecutive or concurrent.
THE COURT: You understand that?
THE DEFENDANT: Yes, I do,
THE COURT: These are 25 years or natural
life, those are day-for-day sentences. In other words
there is no possibility for parole; you understand that?
THE DEFENDANT: Yes, I de.
THE COURT: There is a possibility there
could be restitution, TI don't know if there will be a
claim for that, but you understand there is possibility
that restitution may be required?
THE DEFENDANT: Yes.
THE COURT: You understand these
sentencing possibilities, then?
THE DEFENDANT: Yes.
THE COURT: Okay, I want to make sure I
-> just so that I cever everything, I know that you're in
prison now, that pleading guilty to this offense could
possibly have ramifications on your classification status
in prison; you understand that?
TRE DEFENDANT: Yes,
THE COURT: You understand once I accept
your plea, you cannot change your mind, withdraw from the
egreement, get out cf it latex unless you can show me
nat it's necessary to correct a manifest injustice?
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WHOIKKDERWNHE
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THE DEFENDANT: Yes, I do.
THE COURT: You also understand that if I
do not agree with this, I can reject it -- actually, I
don't think I could reject Well, I could reject the
plea if I didn't feel it was in the interest of justice.
MR. GORMAN: Judge, I would agree if it
was a plea agreement. If it was a plea agreement that
tne Court had to approve, but in this case when an
ividual is pleading to the indictment, I believe he
has a constitutional right to do so under the Fifth
and 14th amendment, and that the Court could not force
him to go to a jury trial.
THE COURT: All ght. Mr, Sizemore, you
have the right to have a trial by jury on this charge, to
b2 represented by two attorneys at that trial. You have
tne right to confront and cross-examine witnesses at that
trial, the right to compel the attendance of witnesses,
the right to speak if you choose, but if you choose not
to, no one can force you to speak, and that cannot be
used against you. You are presumed innocent; could not
be found guilty unless by unanimous jury beyond a
reasonable doubt; you uncerstand that?
THE DEFENDANT: Yes-
THE COURT: You also have the right to
appeal to a higher court. By pleading guilty, you give
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mune
In -240
uD your right to appeal to a higher court; you understand
that?
TEE DEFENDANT: Yes, I do.
THE COURT: Your only means of review
Al10
ememnny an.
5. would be for the filing of a petition for past conviction
6 relief, which would nave to be filed with this Court
7 within 90 days of your sentence; do you understand that?
8 THE DEFENDANT: Yes,
3 THE COURT; You give up these rights by
10 pleading guilty. Is that what you want to do?
11 THE DEFENDANT: Yes.
12 THE COURT: All right. You are charged
13 with >
14 MR. GORMAN: Judge, if the court would
15 iixe --
16 THE COURT: Are you charged with first
iF degree murder, a Class I felony, in that on November 13
18 2000, acting together or in concert, intending or knowing
19 your conduct would cause death, you caused the death of
20 Carlos Ceniceros witx premeditation, a violation of
21 Arizona Revised Statate, Section 13-1105, 1101. Is one
22 of these the Ring?
23 MR. GORMAN: No.
24 TRE COURT: 303, 302, 301, 701, and 801
25 Class I felony. What is your plea?
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1 THE DEFENDANT: Guilty.
2 THE COURT: Factual basis?
3 MR. GORMAN: Well, Judge, the specific
4 factual basis for Mr. Sizemore is that on November 13th
5 of 2000, in Navajo County, with the knowledge that he
6 would kill another human being, Mr. Sizemore stabbed
7 arles Ceniceros wit a homemade knife known in prison as
B @ shank, and Mr. Ceniceros died as a result of stab
9 wounds on that same date, November 13th, 2000.
10 TRE COURT: Do you have anything to add to
iL the factual basis, Mr. Duarte?
12 MR. DUARTE: No, I do not, your Honor,
13 THE COURT: Have I missed anything,
14 counsel?
15 MR. GORMAN: No, your Honor, not that I'm
16 aware of, And, Judge, because this is not a plea
17 agreement, and because he has pled to the charge, we'd
18 the Court to accept the plea, which I believe the
19 Court is required to by law, but we'd ask that the court
20 do so, and then we can discuss sentencing.
21 THE COURT: I find the plea is knowingly.
22 intelligently, and voluntarily made; no force, threats,
23 or promises have induced the plea. Your position on
24 acceptance of the plea, Mr, Duarte?
25 MR. DUARTE: I'd urge the Court to defer
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1 acceptance, your Honor. Forgive me, I don't mean to
Zz interrupt. Did your Honor include 13-703 in the
3 sentencing?
4 MR. PHALEN: JI don't think that was in the
5 indictment.
6 MR. DUARTE: So he pled straight off the
7 indictment? Very well, your Honor.
B THE COURT: Your reasoning for deferring
All
9 tne plea; do you have any?
10 MR. DUARTE: In case something happens
li between now and the time of sentencing, other than that
12 I don't have anything else. Thank you.
13 MR. GORMAN: And, Judge, I don't believe
14 there's any rule, perhaps the Court will find one, but I
AS don't believe there's any rule that would require it or
16 suggest that it should be deferred, and once again, he
17 pied to the charge, so I see no basis to defer
18 acceptance,
19 THE COURT: Let me just look at this real
20 fast. I think I agree with you on that. TI£ I can find
21 my rule. Anybody know what rule that is? There it is.
22 On, here it is. All right. Having reviewed Rule 17, it
23 adpears to me based upon my reading that I will accept
24 tae plea and enter the plea of record and order a
25 presentence report to be prepared.
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1 MR. GORMAN: Judge, could I make a
2 suggestion that you nave the presentence come in; not
3 require Mr. Sizemore to appear, because I don't believe
4 that we would do the sentencing when the presentence came
5 im We would want to consult with Mr. Phalen, get the
6 presentence and review it, and perhaps do it even
7 telephonically, and tell the court how much time we need
8 <9 propose for a sentencing. And although Mr. Sizemore
9 is not eligible for the ceath penalty, the sentencing
10 still is very important to him, In the sentence that
a1 he's going to be asking the court for a concurrent
12 sentence and also the 25 calendar years, so we want to
13 prepare for it. To avoia all of us coming out here and
14 bringing him up from the prison, if you could either have
15 it sent to us or if we could just appear by telephone
16 ween the presentence comes in. After that, we're going to
17 need time to schedule everything.
18 THE COURT: Is Mr. Sizemore going to
19 present himself to an interview?
20 MR. GORMAN: With the presence of counsél.
a1 That would have to be arranged.
22 THE COURT: I don't know if the court's
23 staff would oe driving to prison or they would be
24 bringing him here. [ don't Know the logistics of these
25 things.
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4 I think I'll order that they conduct the
2 interview at the prison. I think that's probably going
zt to be move efficient.
4 MR. GORMAN: Okay-~
5 THE COURT: What I'li do then is direct
6 that the presentence report interview take place at the
7 prison in the accompany of counsel, You might check with
B the probation department before you leave across the
3 parking lot. I think what I'll do then is it takes them
10 about four weeks, in this case it might take them a
11 little longer. I'11 schedule a status conference
12 telephonically in about four weeks. If we have a
Al12
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is one more thing on Mr. Sizemore. I need to tell the
Supreme Court of the State of Arizona what the status is
with respect to the motion to remand.
THE COURT: The stay.
MR. DUARTE: Well, the absence of the
presentence report, then we can schedule a sentencing.
14 MR. GORMAN: Yes.
15 THE COURT: Status conference, I will
16 schedule for --
17 MR. PHALEN: Judge, we have an August 13th
18 date already. I don’t know if that's too soon.
19 MR. GORMAN: That's too soon, I'd like it
20 as far as off as possible.
21 THE COURT: Reschedule it for August 27th.
22 MR. GORMAN: Okay. That's perfect, Judge.
23 THE COURT: August 27th at 9:00 a.m. for
24 the status conference, and you can appear telephonically,
25 if you wish.
265
1 MR. DUARTE: I'll be out of the office.
2 I'll make sure somebody is apprised of what's happening
3 on the 27th.
4 THE COURT: I think we'll probably just be
5: scheduling sentencing on that date.
6 MR. DUARTE: Very well.
7 THE COURT: Anything further?
8 MR. GORMAN: No; thank you, Judge.
9 THE COURT: Mr. Brian --
10 MR. DUARTE: Excuse me, your Honor. There
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stay; they should remove that. I don't know if we need a
17 court order or some recognition of that.
18 THE COURT: I would certainly indicate for
19 the record to Mr. Sizemore that having pled guilty to the
20 indictment, the motion to remand is moot.
21 MR. PHALEN: I would think so. TI will
22 have informed the Supreme Court clerk telephonically to
23 that,
24 MR. DUARTE: We'll file a pleading. I'll
25 file it from my side, between the two of us, hopefully
-27=
1 it will get pack,
3 THE COURT: Mr, Brian, would you come
4 forward, please.
5 Mr. Brian, would you state your full name
6 and date of birth?
7 THE DEFENDANT: Scott Bradley Brian,
8 6/12/61.
9 THE COURT: Do you read and understand
10 English?
11 THE DEFENDANT: Yes, I do.
12 THE COURT: What's the last grade you
13 finished in school?
14 THE DEFENDANT: I finished 10th grade and
15 go> a GED, correspondence course.
16 THE COURT: Have you had any drug
17 alcohol, or medication ir the last 24 hours?
A13
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF NAVAJO
JUDGE: DALE P. NIELSON DIVISION: u
CLERK: JSUANITA MANN DATE: July 24, 2002
DEPUTY CLERK: Amy Maestas TIME:
COURT REPORTER: Josie Roper
MINUTE ENTRY
STATE OF ARIZONA, Case No. S$-0900-CR-0020010338
Plaintiff, Attorneys Present
ae Joseph Duarte, Assistant Attorney General
MARK E, ALLRED
SCOTT BRIAN, and Conrad Baran, Attorney for defendant Allred
NICHOLAS SIZEMORE,
Barend Emery La Barge, Public Defender, Co-counsel
efendsiits: for defendant Allred
Thomas Gorman, Attorney for defendant
Sizemore
Thomas Phalen, Co-counsel for defendant
Sizemore
Patrick McGillicuddy, Attorney for defendant
Brian
Monique Branscomb, Co-counsel for
defendant Brian
MOTIONS HEARING
This is the date and time set for Motions Hearing. The record may reflect the presence of all defendants,
in custody.
Mr. Phalen provided the Court with a list of regarding the order of motions.
Mr. Duarte requested the Court get Susanna Pineda on the telephone as to Department of Corrections
motions. Mr. Duarte advised the Court that motions #1, #3, #9, and #10 will need to be addressed by Ms.
Ald x
Sb
Pineda.
Counsel addressed the Court regarding the order of the motions.
The record may now reflect the presence of Susanna Pineda, Assistant Attorney General, appearing
telephonically. Ms. Pineda addressed the Court regarding motions.
Mr. McGillicuddy requested that the Court take a fifteen to twenty minute recess due to new information
that was received and he needs to discuss with his client.
The Court recessed at 1:45 p.m.
The Court reconvened at 2:12 p.m. The record may reflect the presence of all parties.
Mr. Gorman advised the Court that defendant Sizemore is ready to enter into a change of plea as to the
allegations set forth in the indictment.
Mr. Duarte advised the Court that he has no objection but requested time to contact the victim’s next of
kin, Mr. Duarte addressed the Court regarding State law as to victim’s rights.
Mr. Gorman responded and believed case law only applied when the State is making an offer.
Mr, McGillicuddy advised the Court that defendant Brian wishes to enter into an agreement as well.
Mr. Baran advised the Court that defendant Allred does not wish to enter into a plea agreement at this
time.
The Court and counsel] discussed case law regarding victim(s) rights.
Counsel advised the Court that they have no objection to Mr, Duarte contacting the victim’s next of kin.
The Court recessed at 2:16 p.m.
The Court reconvened at 2:30 p.m. The record may reflect the presence of all parties.
Mr. Duarte advised the Court that the victim’s family was notified.
The Court advised counsel that it would proceed with change of pleas as to defendants’ Sizemore and
Bnan.
As to defendant Nicholas Sizemore, Mr. Gorman advised the Court that an agreement has been reached
wherein the defendant will admit to the allegations as set forth in the Indictment with sentencing at the Court
discretion.
The defendant advised the Court that he can read and understand English. The defendant further advised
the Court that he has not had any drugs, alcohol, or medication within the last twenty-four (24) hours, The
defendant advised the Court that he has discussed the agreement with counsel.
The Court finds that the defendant will be changing his plea from not guilty to guilty to the allegations
set forth in the Indictment. The Court advised the defendant of his rights. The Court advised the defendant of
possible range of sentence.
Mr. Gorman addressed the Court regarding factual basis,
The Court finds the defendant has knowingly, intelligently, and voluntarily entered into this agreement,
and no force, threats, or promises have induced the admission. The Court accepts the agreement and enters it of
record.
Mr. Gorman advised the Court that the Ring Decision in Arizona finds death penalty unconstitutional
and the defendant entered into the agreement with the outcome being a life sentence or twenty-five (25) calendar
years,
Mr, Duarte addressed the Court regarding the death penalty.
The Court orders a presentence report prepared with copies provided to the defendant, Court and counsel
at least five (5) days prior to Sentencing.
The Court orders probation to conduct the presentence interview in the Arizona State Prison in Florence
in the company of counsel.
The Court schedules a Status Conference for August 27, 2002, at 9:00 a.m, The Court stated that
counsel may appear telephonically. The Court advised counsel that it will schedule Sentencing at the time of
Status Conference.
The Court finds that due to defendant Sizemore having entered into an agreement, the Motion to
Remand is moot.
As to defendant Scott Brian, Mr. McGillicuddy advised the Court that an agreement has been reached
wherein the defendant will admit to the allegations as set forth in the Indictment with sentencing at the Court’s
discretion.
The defendant advised the Court that he can read and understand English. The defendant further advised
the Court that he has not had any drugs, alcohol, or medication within the last twenty-four (24) hours. The
defendant advised the Court that he has discussed the agreement with his attorney. The Court advised the
defendant of the range of sentence. The Court advised the defendant that the sentence may run consecutive or
concurrent with his current sentence. The Court advised the defendant of his rights.
The Court finds the defendant is changing his plea from not guilty to guilty, to the allegations set forth in
the Indictment.
Mr. McGillicuddy advised the Court that he concurs with Mr. Gorman regarding sentencing.
The Court takes judicial notice of the factual basis already given by Mr. Gorman.
The Court finds the defendant has knowingly, intelligently, and voluntarily entered into this
agreement and no force, threats, or promises have induced the admission. The Court accepts the agreement and
enters it of record,
Mr. McGillicuddy requested that Sentencing be expedited. Mr. McGillicuddy advised the Court that the
defendant does not wish to cooperate in a presentence interview with probation. The defendant advised the
Court he waives time.
The Court schedules Sentencing for September 11, 2002, at 1:30 p.m.
As to defendant Allred, Mr. Baran requested that the Court schedule the matter for Case Management
Conference,
The Court advised counsel that Case Management Conference will be scheduled at the same time as the
Status Conference set for August 27, 2002, at 9:00 a.m.
Copies to; Joseph Duarte Susanna Pineda, Emery La Barge; Conrad Baran; Tom Phalen; Thomas Gorman;
Monique Branscomb; Patrick McGillicuddy; Galen Wilkes; Cal. qi) Pond(z)
Al16
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF NAVAJO
JUDGE: DALE P. NIELSON DIVISION: ai
CLERK: JUANITA MANN DATE: August 27, 2002
DEPUTY CLERK: Valerie Wyant TIME:
COURT REPORTER: Josie Roper
MINUTE ENTRY
STATE OF ARIZONA, Case No. S -0900 -CR ~-0020010338
Plaintiff, Attorney's Present
VS. .
| Joseph Duarte, Assistant Attorney General,
MARK E. ALLRED appearing telephonically
SCOTT BRIAN and
NOCHOLAS SIZEMORE Susanna Pineda, Assistant Attorney General
Defendants.
- 4 Conrad Baran, Attorney for Defendant Allred
Emery La Barge, Public Defender,
Co-Counsel for Defendant Allred
Thomas Gorman, Attorney for defendant
Sizemore, appearing telephonically
Thomas Phalen, Co-Counsel for Defendant
Sizemore, appearing telephonically
Patrick McGillidcuddy, Attorney for
Defendant Brian, appearing telephonically
Status Conference
IN CHAMBERS:
This is the date set for status conference. Record may reflect the absence of the defendant’s. Record
may further reflect the presence of Bruce Wolfe, Investigator.
The Court indicated that it has received a motion to correct the July 24, 2002 minute entry filed by
Mr. Phalen. ive
aw
The Court believes that the motion is well taken and directed that any notion of there being an
agreement should be stricken as the defendant's changed their plea’s to guilty and there was no agreement.
The minute entry dated July 24, 2002 is corrected to reflect that the defendant requested to change his
plea from not guilty to guilty. The minute entry dated July 24, 2002 is further corrected to reflect that the
Court finds the defendant has knowingly, intelligently, and voluntarily changed his plea and no force, threats,
or promises have induced the admission. The correction of the minute entry dated July 24, 2002 is as to
Defendant Sizemore and Defendant Brian.
The Court indicated that it has a motion to permit defendant’s Brian and Sizemore to withdraw from
guilty pleas filed by Mr. Duarte.
Mr. Duarte advised the Court that he sent out the motion yesterday and defense counsel should receive
it by Thursday,
The Court will allow counsel time to respond to the motion and will then set a hearing on the motion.
Mr. Duarte advised the Court that he has not sent the Probation Department the police reports for the
presentence reports yet.
Mr. McGillicuddy objected to the continuance of the sentencing as to his client as he does not believe
the State has legal grounds to continue the sentencing.
Mr. Phalen joined in the objection to continue the sentencing even though he has not seen the motion.
Mr. Phalen-does not believe that the State can withdraw from the plea because there was no agreement. Mr.
Phalen objected to the manner in which the motion was filed. Mr. Phalen advised the Court that he may need
to refile the special action that was dismissed.
Mr. Megillicuddy advised the Court that he believes the motion should be denied as he believes that it
is moot as he does not see how the State can make a request on behalf of the defendant.
Mr. Baran advised the Court that the case is greatly complicated in that an interview was conducted
with a defendant as a result of the change of plea, Mr. Baran further advised the Court that there is not any
confidentiality that attaches to the interview and is not sure what his ethical responsibilities are for the Public
Defender’s Office to remain on the case if defendant Brian and Defendant Sizemore are forced to withdraw
from their guilty pleas. Mr. Baran further advised the Court that the interview is of record at the Arizona
Department of Corrections.
Mr. McGillicuddy advised the Court that his client did the interview against his advise and would seek
a protective order from the Court to seal that interview until all issues are resolved. Mr. McGillicuddy
requested that the Court order Mr. Baran to keep the interview under seal and not disclose it to anyone other
than himself. 7
Mr. Duarte advised the Court that he does not see a need for the interview to be disclosed to him at
this time.
Mr. Phalen had no objection.
The Court ordered the tape or the transcript of the interview to be sealed and not to be disclosed
without approval of the Court. The Court permitted the interview to be sealed in the Public Defender’s
safety deposit box. The Court ordered that any mention of the interview or the contents of the interview are
precluded.
Copies to: Joseph Duarte, Susanna Pineda, Conrad Baran, Emery La Barge, Thomas Gorman, Thomas
Phalen, Patrick McGillicuddy, Monique Branscomb. Galen Wilkes, Probation (2)
Al18
JANET NAPOLITANO
ATTORNEY GENERAL
PROSECUTING ATTORNEY:
JOSEPH A. DUARTE\BAR #010603 ;
Assistant Attorney General
1275 W. Washington
Phoenix, Arizona 85007
(602) 542-3881
SUPERIOR COURT OF ARIZONA
NAVAJO COUNTY
No. CR2001-0338
STATE OF ARIZONA,
Plaintiff, STATE’S MOTION TO PERMIT
DEFENDANTS BRIAN AND SIZEMORE TO
VS. WITHDRAW FROM GUILTY PLEAS
SCOTT B. BRIAN and (Assigned to Hon. Dale P. Nielson)
NICHOLAS S. SIZEMORE,
Defendants.
Comes now the state, through undersigned attorney, and requests that defendants
Brian and Sizemore be allowed to withdraw from their pleas of guilty entered July 24,
2002. This motion is proferred pursuant to Rule 17.5, Ariz.R.Crim.P., which allows the
court, in its discretion, to consider withdrawal where compelled to correct a manifest
injustice, The premise under which both defendants pled was the lack of exposure to the
imposition of a death sentence. All parties erroneously believed that Ring v. Arizona, 200
Ariz. 267, 25 P.3rd 1139 (2002), precluded the state from seeking the death penalty.
Because Ring affects solely the procedure under which a defendant is sentenced, not the
imposition of the death penalty itself or the state’s power to impose it, the maximum
punishment for the instant crime remains the imposition of the death penalty.
Consequently, the pleas premised upon the lack of exposure to the death penalty are
involuntary and each defendant should be allowed to withdraw, The state’s position is
more fully set out in the following Memorandum of Points and Authorities.
Tabd
Cen Aun & WN =
el ee ee ee
Ba wne Sf
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Respectfully submitted this Z aay of August, 2002.
JANET NAPOLITANO
Attorney Gene!
ral
A Nnot—
JQSEPH A. DUARTE
Criminal Division
MEMORANDUM OF POINTS AND AUTHORITIES
FACTS:
On July 24, 2002, defendant Sizemore pled guilty to the first degree murder of
inmate Carlos Ceniceros. In the process of entertaining the change of plea the court
asked for advisory opinions regarding the range of sentence. (Transcript dated 31 July,
2002) (TR, P. 17). "I have to advise Mr. Sizemore of the range of sentence, possible
penalty." Mr, Gorman’s response was "I suspect the court would agree that there’s no
constitutional death penalty statute presently in Arizona. We certainly have advised Mr.
Sizemore there is not. Mr. Sizemore has made his decision to plead guilty with the
understanding that his guilty plea and the acceptance of the plea by the court will result
in a penalty of life imprisonment either natural life or 25 calendar years, parole eligible;
that is all. He is basing his decision on his understanding that no death penalty statute
presently applies to him, nor because there is no death penalty statute in Arizona nor will
any death penalty statute apply to him should he be sentence in 60, 90, 120 days; that the
only possible penalty he is facing is natural life for 25 calendar years. And that’s his
understanding, and that is, in large part, the material reason he is pleading guilty."
(TR, P. 17-18).
Undersigned prosecutor stated that "there was not presently a sentence that can
implement the taking of a life in Arizona." (TR, P. 18). "That is something I cannot urge
at this particular point in time, because unless there’s something that I can put before the
court that is precedent, that is on the books or that is case law and has been handed
down even and a half emergency posture I cannot urge a position where there is a void.
2
A-20
26
So at this point, I can’t add a whole lot to what counsel has said. Obviously, we are
suggesting that I’m sure the legislature will work that out but today as we stand in court,
there does not appear to be a viable death penalty sentence to which Mr. Sizemore would
be exposed." (TR, P. 18-19).
Co-defendant Brian also pled guilty to the murder of Carlos Ceniceros. Mr.
McGillicuddy, his lawyer, stated a similar view to that of Mr. Gorman in advising the
court of the reason why is client was pleading guilty. "I met with my client today; I told
him of the possibilities based on the case of Ring v. Arizona, and how it affects his case.
T’ve advised him that my view of the law now is that there is no death penalty statute
under which he can be sentenced, but if he enters a guilty plea today to the charges, that
the court is prevented from imposing a sentence of death. That is the basis for his guilty
plea today, and that is the only basis. It would be my position that if the court doesn’t
agree with me, and I take it that the court did agree with Mr. Gorman and Phelen, then
the plea later would not be found to be knowingly, intelligently and valuntarily made,"
(TR, P. 31-32). Mr. McGillicuddy went on to state "Obviously, the court realizes that it
cannot impose the death penalty on Mr. Brian."
The court advised defendant Sizemore that "the range of sentence for this plea is
either natural life, which means that you would not be eligible for parole for any reason,
or you could not be released until having served 25 calendar years. . ." (TR, P. 19).
With regard to defendant Brian the court advised him "the range of sentence for this plea
is 25 years, day for day, and/or actually, release after that. You could also possibly be
sentenced for the rest of your natural life, which means that you could not get out of
prison." (TR, P. 29). Neither defendant pled pursuant to a formal written plea
agreement between the state and the respective defendant. Each defendant pled straight
up to the court to avoid the imposition of a death sentence.
In sum, the co-defendants pled guilty to First Degree Murder on the mistaken
assumption, endorsed by the state, that they were not subject to the death penalty
because Arizona’s Capital Sentencing Statute had been declared unconstitutional in King,
3
AQ1
26
supra. The state seeks to vacate the guilty pleas on the ground that the defendants can
still receive death sentences, notwithstanding Ring.
LAW:
The defendants remain subject to the death penalty for two main reasons. First, the
unconstitutional portion of the statute which is responsible for the imposition of the death
penalty is severable because Ring only affects the procedure under which a defendant is
sentenced, not the viability of the death penalty itself or the state’s power to impose it.
The maximum punishment for the crime of First Degree Premeditated Homicide remains
death and that has never changed. The Ring decision invalidated Arizona’s capital
sentencing scheme which violated the 6” Amendment jury trial guarantee by entrusting
to a judge the finding of a fact raising the defendant’s maximum penalty. Ring
invalidated the system that allowed a sentencing judge, sitting without a jury, to find an
aggravating circumstance necessary for the imposition of the death penalty. See State v.
Walton, 497 U.S. @ 647-649.
The question presented was whether an aggravating factor may be found by the
judge, as Arizona law specifies, or whether the 6” Amendment jury trial guarantee,
made applicable to the states by the 14" Amendment, requires that the aggravating
factor determination be entrusted to the jury. Because Arizona’s enumerated
aggravating factors operate as "the functional equivalent of an element of greater
offense," Apprendi, 530 U.S., @ 494, n. 19, the 6 Amendment requires that they be
found by a jury. Pp. 10-23. Under A.R.S. §13-703(E) it formerly stated:
In determining whether to impose a sentence of death or life imprisonment, the court
shall take into account the aggravating and mitigating circumstances included in
Subsections F and G of this section and shall impose a sentence of death if the court
finds one or more of the aggravating circumstances enumerated in Subsection F of
this section and there are no mitigating circumstances sufficiently substantial to call
for leniency.
Ring now mandates that the 6 Amendment right to a jury trial applies. The newly
amended §13-703,01 states:
In determining whether to impose a sentence of death or life imprisonment, THE
TRIER OF FACT shall take into account the aggrayating and mitigating
4
A22
WN
an
circumstances THAT HAVE BEEN PROVEN. THE TRIER OF FACT shall impose
a sentence of death if the TRIER OF FACT finds one or more of the aggrayatin,
circumstances enumerated in Subsection F of this section and THEN DETERMINES
that there are no mitigating circumstances sufficiently substantial to call for leniency.
In short, the unconstitutional flaw was only as to the state’s sentencing scheme and
manner of the imposition of the death penalty, namely that the judge alone could
determine the aggravating factors resulting in the imposition of the death penalty. The
new statute reflects the Ring mandate requiring the trier of fact or the jury to take into
account the releyant aggravating and mitigating circumstances and then impose the
appropriate sentence. It is specifically the sentencing scheme for first degree murders,
which was affected by the Ring decision, The death penalty itself was never invalidated
by the Ring decision nor was the state’s power to impose it compromised. The only
change was the shift from the judge’s discretion to the trier of fact’s discretion in
considering the circumstances which would result in its imposition. The unconstitutional
portion of the sentencing statute is seyerable and has been corrected.
Regarding the issue of severability, the case of State v. Watson, 124 Ariz. 441, 586 P.2d
1253 (1978), is instructive. In that case, the Arizona Supreme Court held that Arizona’s
Death Penalty Statute was unconstitutional to the extent it limited consideration of
mitigating circumstances. Watson further held that the portion of the statute that limited
presentation of mitigation evidence was severable from the rest of the statute, and
remanded the case to allow the defendant to present any mitigating circumstances tending
to show why the death penalty should not be imposed. In the instant case, the Ring
situation is analogous because the portion of the statute which is unconstitutional duc to
the fact it does not allow the jury to consider the aggravation and mitigation during the
sentencing phase can be severed out from the rest of the statute. The unconstitutional
features contained in the statute can be excised with the amended statute correcting the
flaw.
The second reason the defendants remain subject to the death penalty is rooted in the
state’s position that certain capital cases on direct review are subject to harmless error
A238
analysis. The imposition of certain sentences may not have run afoul of Ring’s mandate.
For example, in some cases the court has found the existence of prior convictions to be
the factors responsible for the imposition of the death penalty. As such, they would not
require the enpanelment of a jury to consider their existence and application. In turn, if
death sentence as imposed under the unconstitutional version of A.R.S, §13-703 can
stand, then death sentences can continue to be lawfully imposed under that statute
provided the trial court’s sentencing procedure does not offend Ring.
It should be reiterated that the defendants pled prior to the time Senate Bill 1001 was
enacted in an emergency measure by the state legislature and after the mandate in Ring
was handed down.
The application of the new law to the co-defendants is not a denial of due process
where this amended statute was not in effect at the time of the defendants’ plea. The
instant case differs from the case of Coleman vy, McCormick, 874 F.2d 1280 (9"" Cir.
1989), In that case the defendant was convicted of deliberate homicide, rape and
aggravated kidnaping in 1976 in Montana. He received a sentence of 100 years for the
homicide, 40 years for the rape, and death on the aggravated kidnaping charge under
Montana’s existing mandatory death penalty statute. On direct appeal the Supreme
Court for the State of Montana held that the mandatory death penalty statute was
uncostitutional, vacated Coleman's death sentence, and remanded the matter for resentencing. 876 F2d @ 1282. The trial court re-sentenced Coleman to death in 1978
under a death penalty statute that bad been enacted in 1977, Coleman’s sentences were
upheld again on direct appeal. Id. He then sought post-conviction relief in state court
and petition for writ of habeas corpus in federal court.
One of Coleman’s claims in his habeas corpus petition alleged that he had been
denied due process of law when the trial court sentenced him to death under a statute
that was not in effect at the time of his trial, The 9" Circuit agreed holding that
sentencing Coleman to death under Montana’s new death penalty statute had deprived
him of due process. The holding was based on fundamental changes to the death penalty
6
Ag4
Cent AH FW
sentencing procedures brought about by the new sentencing statute and how those
changes might haye affected Coleman’s strategies in trial if he had known about them at
the time.
Coleman was first convicted and sentenced to death in 1975 under a mandatory
death penalty statute which was later held to be unconstitutional because it lacked
provisions that would enable the court to consider mitigating circumstances. Coleman,
874 F2d @ 1285, n. 6. Montana’s new death penalty statute, under which Coleman was
sentenced the second time, required the judge who had presided over the trial to conduct
a sentencing hearing and to determine whether there existed any aggravating or
mitigating circumstances for purposes of determining the sentence to be imposed. Id.,
874 F2d @ 1285. Under the new statutory scheme, the trial court had to impose the
death sentence if it found the existence of at least one of the enumerated aggravating
circumstances and determined that there were not mitigating circumstances sufficiently
substantial to call for leniency. The 9" Circuit held that retroactive application of the
new death penalty procedures to Coleman violated his right to due process. That court
noted that because the death penalty was no longer mandatory upon a conviction for
aggravated kidnaping in Montana, the sentencer who was the trial judge could now
weigh the aggravating and mitigating circumstances in order to determine whether a
death sentence was appropriate. Coleman, 874 F2d @1286. The court acknowledged
that if Coleman’s counsel had known, at the time of trial, that the trial judge would have
sentencing discretion regarding the death penalty, several of his strategic decisions might
have been different. Specifically he might not have brought Coleman’s prior convictions
to the trial court’s attention during cross-examination of a co-defendant; he might have
advised Coleman not to testify; and he might haye elected to challenge the judge without
cause before trial. Jd., 874 F.2d at 12860-87.
The court held that Coleman had a right to make informed decisions in these
matters, stating "The defendant is due at least that amount of process which enables him
to put on a defense during trial knowing what effect such strategy will have on the
7
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15
subsequent capital sentencing, the results of which may be equally if not more critical to
the defendant than the conviction itself." Jd., 874 F.2d at 1288. Coleman had no notice
whatsoever of the consequences his decisions at trial would have in his capital sentencing
proceeding. The court held that this lack of notice with its resultant deprivation of the
ability to make informed decisions regarding trial strategy had violated Coleman’s right
to due process of law.
In marked contrast, the recent changes in Arizona’s Death Penalty Statute are not of
the type that materially affect either eo-defendant’s strategic decisions at trial. Indeed
there has been no trial, there was simply a plea. The principle change in Arizona’s
procedure merely transfers the sentencing task from the judge to the jurors.
Consequently, the defendant cannot allege that application of the new death penalty
procedure to him would deprive him or his counsel of the ability to make informed
strategic decisions about the conduct of his defense. Unlike the sweeping and
fundamental changes to Montana’s death penalty procedure that were applied
retroactively in Coleman, the recent changes in Arizona’s death penalty procedure are
not the of the type that alter the manner in which defenses are presented at trial.
Retroactive application of A.R.S. §13-703.01, as amended, to the co-defendants does not
violate their rights to due process of law.
The application of A.R.S. §13-703.01, as amended, to these co-defendants does not
violate state or federal prohibitions regarding ex post facto laws. Defendants will
undoubtedly contend that the changes to Arizona's capital sentencing scheme mandated
by Ring and implemented by A.R.S. §13-703.01, as amended, violates their rights under
the federal and state constitutions to be free from the application of ex post facto law.
Co-defendants will claim that the changes to Arizona’s capital sentencing law are
substantive rather than procedural and as such cannot be applied retroactively to either.
This claim is erroneous.
In Dobbert v. Florida, 432 U.S.282 (1977), the United States Supreme Court held that
when Florida revised its death penalty statute it did not violate the ex post facto
8
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prohibition of the Constitution. In Dobbert, the defendant was conyicted of Murder in
the First Degree. Under the death penalty statute in effect at the time of the crimes, a
defendant in Florida was sentenced to death by the judge. Id., @ 284. The death penalty
statute in effect at that time stated "A person convicted of a capital felony was to be
punished by death unless the verdict included a recommendation of mercy by a majority
of the jury." Id., @ 288. The United States Supreme Court released its opinion in
Furman v. Georgia, 408 U.S. 238 (1972), striking down all death penalty statutes -
including the one in effect at the time Dobbert committed his crime. Florida enacted a
new statutory scheme instituting a bifurcated sentencing scheme, with an advisory verdict
by the jury, with the judge either following that recommendation or making his own
ruling. Id., @ 288-289. (Dobbert was given a death sentence under the new law).
In the United States Supreme Court, Dobbert argued that the change in the role of
the judge and the jury “constitutes an ex post facto violation." Jd., @ 292. The United
States Supreme Court disagreed and held that the change was procedural and there was
no ex post facto violation. Jd., @ 292. The court reasoned that "Even though it may
work to the disadvantage of a defendant, a procedure change is not ex post facto." Id.,
@ 293. "The new statute simply altered the methods employed in determining whether
the death penalty was to be imposed; there was no change in the quantum of punishment
attached to the crime." Id., @ 293-294. Regarding the argument that there was not a
constitutional death penalty statute in effect at the time of the murders, the court
rejected the claim that there was an ex post facto violation. "But this sophisticated
argument mocks the substance of the ex post facto clause. Whether or not the old statute
would in the future, withstand constitutional attack, it clearly indicated Florida’s view of
the severity of murder and of the degree of punishment which the legislature wished to
impose upon murderers. The statute was intended to provide maximum deterrents, and
its existence on the statute books provided fair warning as to the degree of culpability
which the state ascribed to the act of murder." Jd., @ 297.
The Arizona Supreme Court has also followed the reasoning of Dobbert with regard
9
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to procedural changes in death penalty law. In Watson, supra, the Arizona Supreme
Court declared that the restriction regarding mitigating circumstances in the death
penalty statute was unconstitutional because it did not allow the sentencing judge to
consider all mitigating circumstances. In upholding the application of the new statute to
pending cases, the court noted that it was only concerned with a procedure change and
one which increases the rights of the defendant in death penalty cases. "We do not
believe there is an ex post factor problem. We find no error." Id,, @ 454, 586 P2d at
1266. In Knapp v. Cardwell, 667 F.2d 1253 9" Cir, 1982), the 9° Circuit agreed which
the Arizona Supreme Court that the challenge in Arizona’s death penalty statute did not
violate the ex post facto clause. Citing to Dobbert the 9" Circuit held that the change in
the law was procedural. The court stated that the "only effect" was to enlarge the ability
of defendants to introduce mitigating circumstances at sentencing. Thus, no ex post facto
problems arise, even with respect to those appellants tried and sentenced before Watson.
Id., @ 1263. Under Dobbert, Watson and Knapp, it is clear that the state can impose new
procedural changes on pending capital cases,
More recent cases show that the United States Supreme Court has gone eyen further
in restricting their ex post facto analysis. In California Department of Corrections v.
Morales, 514 U.S. 499, 115 S.Ct. 5097, 131 L. Ed. 2d 588 (1995),
the court stated that their ex post facto analysis had changed in focus.
Our opinions in Lindsey v. Washington, 301 U.S, 397, 57 S.Ct. 797, 81 L.Ed. 182 (1937),
Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d, 17 (1981), and Miller v,
Florida, 482 U.S. 423, 107 S.Ct, 2446, 96 L.Ed. 2" 351 (1987)... are inconsistent with
the framework developed in Collins v, Younghlood, 497 U.S. 37, 41, 110 8.Ct. 2715,
2718, 111 L.Ed.2d 30 (1990). After Collins the focus of the ex post facto inquiry is not
on whether a legislative change produces some ambiguous sort of “disadvantage”, nor.
.. whether an amendment affects a prisoner’s opportunity to take advantage of
provisions for early release, ... but on whether any such change alters the definition of
criminal conduct or increases the penalty by which a crime is punishable.
Excerpted from California Department of Corrections v. Morales, (514 U.S, 499, 506, 115
S.Ct. 1597, 1602, 131 L.Ed.2d 588, excerpt from n. 3 (1995).
The amendments to Arizona’s Death Penalty Statute do not change the aggravators
required to establish imposition of the death penalty. The aggravators still must be proven
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by the state, by a standard of beyond a reasonable doubt, Defendants are still entitled to
present statutory and non-statutory mitigation, The penalty remains the same, death or
life imprisonment, The change is simply one of the jury (rather than the judge) weighing
aggravation against mitigation. The definition of the crime and the penalty remain the
same. There is adequate “fair notice”, Therefore, application of the changes in the death
penalty procedures to the co-defendants does not violate ex post facto prohibitions.
Application of A.R.S. §13-703.01, as amended, to the case of the co-defendants does not
deprive either of his federal or state constitutional rights, nor does it violate the Arizona
Rules of Criminal Procedure.
The focus now shifts to whether the court has the discretion to permit the defendants
to withdraw. As noted above the trial court can sentence the defendants to death and the
state will pursue such sentence. The trial court erroneously informed the defendants that
the maximum sentence was natural life and as a consequence the circumstantial context
satisfies the “manifest injustice” standard for withdrawal. To enforce the guilty plea in the
absence of a plea agreement with the limitation on sentencing to natural life, based on the
mistake of law would be manifestly unjust to the victims in the state, and would perpetuate
the legal error. Attorney Patrick McGillicuddy implicitly acknowledged the possibility that
the death sentence remains viable. After stating the defendant’s motivation to avoid the
death penalty as a basis for his plea Mr. McGillicuddy stated “It would be my position that
if the court doesn’t agree with me, and I take it that the court did agree with Mr. Gorman
and Phalen, then the plea would not be found to be knowingly, intelligently and voluntarily
made.” (TR, P. 31-32).
The state’s mistaken endorsement of the position that the death penalty was nota
viable option should not preclude the state from correcting the record and proceeding in
pursuit of the death penalty against defendants Sizemore and Brian. The court is not
bound by, nor can the defendants rely upon, the Attorney General’s mistaken opinion
regrading the state of the law. Sze, e.g., Martinez v, State Workers Compensation Insurance
Fund, 163 Ariz. 380, 385, 788 P.2d 113, 118 (App. 1990). (Appellate court rejecting
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Attorney General’s conclusion in Attorney General Opinion 100-107), Nor is there any
estoppel principal preventing the state from changing the position it took on a legal issue at
the plea hearing. Greene v, Osborn, 157 Ariz. 363, 365, 758 P.2d 138, 140 (1988). State v.
Deddens, 112, Ariz. 425, 428, 542 P.2d 1124, 1127 (1975), states that “The Attorney
General's opinions are advisory only and are not binding on courts of law. They are nota
legal determination of what the law is at any certain time.” If formal opinions of the
Attorney General’s Office do not bind the courts, and defendants cannot rely upon them,
then informed legal conclusions of an Assistant Attorney General expressed at a hearing
are entitled to substantially less authority,
Double jeopardy does not bar trial and re-sentencing if the defendant elects to
withdraw from the plea. Instructive is the case of State v. Hinchey, 181 Ariz. 307, 313, 890
P.2d 602, 608 (1995): “If there is no trial and no evidence of aggravation, then the trial
judge can only sentence the defendant to life imprisonment. Unless sentence pursuant to
the plea the defendant has the right to withdraw.” If there is a plea agreement with a
stipulated life sentence, the defendant cannot be sentenced to death. The 9" Circuit has
since acknowledged this in Clark v. Lewis, 1 F.3d 814, 823 (9"" Cir, 1993). See, also
Lombrano v. Superior Court, 124 Ariz. 525, 526, 606 P.2d 15, 16 (1980). When a defendant
moyes to withdraw his guilty plea he waives the double jeopardy defense if his motion is
accepted by the court.
Helpful also is consideration of State v. City Court of Tucson, 131 Ariz. 236, 640 P.2d
167 (1981), a defendant entered a guilty plea to a wreckless driving charge mistakenly
thinking that he wouldn’t suffer the sanction of a driver’s license revocation. The license
was revoked because he was mistaken in his belief that his prior DUI conviction was more
than 24 months old. In considering the young man’s plight the court stated “A person who
pleads guilty without knowledge of the punishment that must be imposed has pled guilty
under a mistake and misapprehension. It was therefore no abuse of discretion for the trial
judge to have set aside Krist’s plea. We have stated;
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.