State of Arizona v. Timothy Hagerty

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Respondent,

v.

TIMOTHY ALLEN HAGERTY,
Petitioner.

No. 2 CA-CR 2022-0155-PR
Filed April 13, 2023

Petition for Review from the Superior Court in Pinal County
No. S1100CR202101250
The Honorable Matthew S. Reed, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Kent P. Volkmer, Pinal County Attorney
By Thomas C. McDermott, Deputy County Attorney, Florence
Counsel for Respondent

Rosemary Gordon Pánuco, Tucson
Counsel for Petitioner
 STATE v. HAGERTY
Opinion of the Court

OPINION

Chief Judge Vásquez authored the opinion of the Court, in which Presiding
Judge Eppich and Judge Gard concurred.

V Á S Q U E Z, Chief Judge:

¶1 Timothy Hagerty seeks review of the trial court’s order
summarily dismissing his petition for post-conviction relief filed pursuant
to Rule 33, Ariz. R. Crim. P. We will not disturb that ruling unless the court
abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015).
Hagerty has shown no such error.

¶2 At an early disposition proceeding in August 2021, Hagerty
pled guilty to possession of a dangerous drug and was sentenced to a three-
year prison term. Before entering his plea, Hagerty was shown a video
advising him of his constitutional rights. The trial court later confirmed
during the plea colloquy that Hagerty had watched that video and that he
had no questions about his rights. The court thus “incorporate[d] a
transcript of the video recording into the record,”1 found Hagerty’s waiver
was knowing, voluntary, and intelligent, and accepted the plea.

¶3 Hagerty sought post-conviction relief, arguing the video
advisement violated Rule 17.2, Ariz. R. Crim. P., because the trial court did
not advise Hagerty of his rights “in person.” Thus, he asserted, his
constitutional rights were violated and he was entitled to relief under Rule
33.1(a). The trial court summarily dismissed the petition. It noted, first,
that the advisement video had been shown to Hagerty before each of
several hearings in his case and that during the plea colloquy Hagerty
confirmed he understood his rights. Additionally, the court confirmed that
Hagerty had stated he reviewed his plea agreement, which also identified
his rights, with his attorney. Thus, the court found, Hagerty “was advised
of his rights, and he knowingly, intelligently, and voluntarily waived those
rights in accordance with Rule 17.2 and 17.3.” This petition for review
followed.

1No such transcript appears in our record.

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Opinion of the Court

¶4 On review, Hagerty repeats his claim that the video
advisement does not comply with Rule 17.2 and, thus, he is entitled to relief
under Rule 33.1(a).2 He correctly observes that a plea is valid only if the
defendant knowingly, voluntarily, and intelligently waives applicable
constitutional rights. See Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); see
also Ariz. R. Crim. P. 17.1(b). To ensure compliance with this prerequisite,
Rule 17.1(b) requires the trial court to “use the procedures in Rules 17.2,
17.3, and 17.4.” Rule 17.2(a), relevant here, requires the court, before
accepting a guilty plea, to “address the defendant personally, inform the
defendant of the following, and determine that the defendant
understands:” the nature of the charges, the possible sentences, the
constitutional rights waived by the guilty plea, the right to plead not guilty,
and the waiver of the right to appeal.

¶5 We agree with Hagerty that a prerecorded video presentation
of the mandatory advisement shown outside of the trial court’s presence
does not comply with Rule 17.2(a). 3 Rule 17.2(a) requires the court to
address the defendant personally to accomplish two goals: to “inform the
defendant of the” relevant matters, including the constitutional rights
waived by pleading guilty, and to “determine that the defendant
understands.” See State v. Ibarra, 254 Ariz. 320, ¶ 10 (App. 2022) (rule’s plain
language is best indicator of supreme court’s intent). The interpretation
asserted by the state and apparently adopted by the trial court would mean
the court need only address the defendant personally to ascertain the
defendant’s understanding. But that is not what the rule says. There is no
textual basis in the rule to apply the requirement that the court address the
defendant personally for one purpose and not the other.

¶6 The exception to Rule 17.2(a) further demonstrates our
supreme court’s intent that the Rule 17.2 advisement be given in person.
Rule 17.1(f) permits limited jurisdiction courts to take pleas telephonically

Hagerty devotes a considerable portion of his petition to an
2

argument that he was “reluctant” to plead guilty. Hagerty does not explain,
however, why this would be relevant to whether the video advisement
complied with Rule 17.2.
3We express no opinion on the use of group advisements in which a
trial court advises multiple defendants at the same time in open court or
where a prerecorded audio or video presentation of the mandatory
advisement is provided to multiple defendants in open court in the
presence of the trial court.

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 STATE v. HAGERTY
Opinion of the Court

and, in narrow circumstances, by mail. For a telephonic plea to be valid
under Rule 17.1(f), defendants must provide a document stating they have
read and waived applicable constitutional rights. Ariz. R. Crim. P.
17.1(f)(1)(B)(i). Despite mandating this written advisement and avowal, the
rule nonetheless requires the court to hold “an in-person or telephonic
hearing” at which it “advise[s] the defendant” of the applicable
constitutional rights. Ariz. R. Crim. P. 17.1(f)(1)(D); Ariz. R. Crim. P. Form
28. Thus, the telephonic hearing option available in limited jurisdiction
courts does not, somehow, authorize what occurred in this case. 4
Accordingly, the recorded group advisement apparently used here, which
was not provided in open court when the judge was on the bench, was not
authorized by Rule 17.2(a).

¶7 Hagerty, however, is not entitled to relief. A violation of Rule
17.2 does not necessarily mean that the defendant’s constitutional rights
were violated nor that the plea was not knowing, voluntary, and intelligent.
Instead, “[w]hen the defendant claims his plea was unknowing and
therefore involuntary, the question is not simply what the defendant was
told in court but what he knew from any source.” State v. Crowder, 155 Ariz.
477, 479 (1987), overruled in part on other grounds by E.H. v. Slayton, 249 Ariz.
248, ¶ 26 (2020); see also State v. McVay, 131 Ariz. 369, 372 (1982) (plea
knowing, voluntary, and intelligent if “defendant did, in fact, know the
rights he was waiving” despite defective colloquy).

¶8 Hagerty does not dispute that his attorney reviewed his plea
agreement with him. Nor does he claim that he did not understand the
rights he was waiving. He does not assert that the prerecorded advisement
was incomplete. Although he speculates that the prerecorded advisement
may not have played fully or properly, he identifies no evidence supporting
this claim.5 Notably, Hagerty did not provide an affidavit asserting that the

4 Indeed, the only situation in which the rules do not require a
personal advisement is a plea by mail, available only in limited jurisdiction
courts in limited circumstances, when “a personal appearance by the
defendant would constitute an undue hardship such as illness, physical
incapacity, substantial travel distance, or incarceration.” Ariz. R. Crim. P.
17.1(f)(2)(A). If the supreme court intended to authorize that procedure in
any other context, particularly in the context of felony offenses, it would
have said so.
5During his post-conviction proceeding, Hagerty was provided an
apparently defective copy of the recorded advisement. He suggests this
defective copy shows he did not receive the full advisement. But he has not

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Opinion of the Court

entire recorded video advisement was not played nor, indeed, that he had
not been fully apprised of his rights. See Ariz. R. Crim. P. 33.7(e) (“The
defendant must attach to the petition any affidavits . . . available to the
defendant supporting the allegations in the petition.”).

¶9 We grant review but deny relief.

claimed that a defective copy of the recorded advisement was played at the
early disposition proceeding before he entered his plea.

5