State v. Allen

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0368-PR
)
Appellee, ) Court of Appeals
) Division One
) No. 1 CA-CR 07-0803
v. )
) Maricopa County
) Superior Court
ROBERT EUGENE ALLEN, JR., ) No. CR2006-175598-001 DT
)
) O P I N I O N
Appellant. )
_________________________________ )

Appeal from the Superior Court in Maricopa County
The Honorable Paul J. McMurdie, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division One
220 Ariz. 430, 207 P.3d 683 (2008)

VACATED IN PART
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Sarah E. Heckathorne, Assistant Attorney General
Attorneys for State of Arizona

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Christopher V. Johns, Deputy Public Defender
Attorneys for Robert Eugene Allen, Jr.
________________________________________________________________

B E R C H, Chief Justice

¶1 This case addresses whether a court must engage a
defendant who stipulates to the elements of a criminal offense

in a colloquy like that afforded a defendant who pleads guilty.

We conclude that, unless the defendant pleads guilty to an

offense, no specific colloquy is required by Boykin v. Alabama,

395 U.S. 238 (1969), or Arizona Rule of Criminal Procedure 17.

I. FACTS AND PROCEDURAL BACKGROUND

¶2 Two undercover Phoenix police officers heard screams as

they drove through their assigned neighborhood on December 8,

2006. They saw Robert Eugene Allen, Jr., carrying a gun and

chasing a woman, who was screaming “help, help me.”

¶3 The officers followed the two into a parking lot, where

they saw Allen standing over the kneeling woman, holding the gun

to her head. When the officers identified themselves and drew

their weapons, Allen fled. The officers went to the woman, who

identified herself as Allen’s mother.

¶4 Two other officers pursued Allen and saw him throw an

object into a dumpster and heard a sound “like metal on metal.”

They later retrieved a .38 caliber revolver from the dumpster.

After apprehending Allen, they found some marijuana and thirteen

rounds of .38 special ammunition in his pockets.

¶5 Allen admitted carrying the gun while chasing his

mother, but denied pointing it at her. Allen also admitted that

he was prohibited from possessing a firearm and that the

marijuana belonged to him.

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¶6 The State tried Allen on one count each of aggravated

assault, disorderly conduct, misconduct involving a weapon, and

possession of marijuana. On the second day of trial, the

parties asked the judge to read two stipulations to the jury:

The defendant and the State stipulate that
the defendant is a prohibited possessor.

The defendant and the State stipulate that
the defendant was in possession of a usable
amount of marijuana on December 8th, 2006.

¶7 The jury found Allen guilty of all four charges, but

the court dismissed the disorderly conduct charge as subsumed in

the aggravated assault verdict. At the sentencing hearing,

Allen admitted having two prior felony convictions. The court

sentenced him to varying concurrent prison terms, the longest of

which was ten years for the aggravated assault conviction.

¶8 The court of appeals affirmed Allen’s convictions and

sentences for aggravated assault and misconduct involving

weapons, but remanded the conviction and sentence for possession

of marijuana. State v. Allen, 220 Ariz. 430, 431 ¶ 1, 207 P.3d

683, 684 (App. 2008). The court held that because Allen’s

stipulation regarding marijuana possession was the “functional

equivalent of a guilty plea,” the superior court committed

fundamental error by not “engaging defendant in a Rule 17-type

colloquy and ascertaining that he voluntarily and intelligently

entered the stipulation regarding the marijuana charge.” Id. at

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435 ¶¶ 21-22, 207 P.3d at 688.

¶9 The court observed that Allen was bound by his

counsel’s tactical stipulations, absent some “exceptional

circumstance.” Id. at 433-34 ¶ 18, 207 P.3d at 686-87 (citing

State v. West, 176 Ariz. 432, 447, 862 P.2d 192, 207 (1993),

overruled on other grounds by State v. Rodriguez, 192 Ariz. 58,

961 P.2d 1006 (1998)). Because defense counsel had

strategically decided to stipulate to Allen’s prohibited

possessor status to avoid the prejudice that might result from

the jurors hearing why Allen was prohibited from possessing a

weapon, the court held that no exceptional circumstance required

his personal waiver and thus no colloquy was required. Id. at

434 ¶ 18, 207 P.3d at 687. But because the court could think of

no strategic reason for stipulating to two out of three elements

of the marijuana offense and not contesting the third, it

concluded that the stipulation was “the functional equivalent of

a guilty plea,” presenting an exceptional circumstance that

required a plea colloquy. Id. at ¶¶ 19-22, 207 P.3d at 687-88.1

The court held that the trial judge’s failure to engage Allen in

1
The trial court instructed the jury that a possession of
marijuana charge requires proof that (1) the defendant knowingly
possessed marijuana, (2) the substance was in fact marijuana,
and (3) the quantity of substance was a usable amount of
marijuana. Allen, 220 Ariz. at 434 ¶ 19, 207 P.3d at 687. It
further instructed that “possess” means “knowingly [] hav[ing]
physical possession.” Id. (alterations in original). Thus,
Allen expressly stipulated to facts that would support the
jury’s finding of two of the three elements of the offense.
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a plea colloquy constituted fundamental error and remanded the

case for a determination of whether the lack of a colloquy

prejudiced Allen. Id. at 435 ¶ 22, 207 P.3d at 688.

¶10 The State petitioned for review, which we granted to

determine whether a Boykin or Rule 17 colloquy is required when

a defendant stipulates to elements of a charged criminal

offense. We have jurisdiction pursuant to Article 6, Section

5(3) of the Arizona Constitution.

II. DISCUSSION

¶11 Parties routinely stipulate to easily proven facts, and

courts encourage such stipulations “to narrow issues and to

promote judicial economy.” West, 176 Ariz. at 447, 862 P.2d at

207. Although stipulations may bind the parties and relieve

them of the burden of establishing the stipulated facts,

stipulations do not bind the jury, and jurors may accept or

reject them. State v. Virgo, 190 Ariz. 349, 353, 947 P.2d 923,

927 (App. 1997).2

¶12 Allen argues that because he stipulated to two out of

2
The superior court instructed the jury incorrectly
regarding the two stipulations. In the preliminary jury
instructions, the court told the jurors that “if the lawyers for
both parties agree or stipulate that some particular fact is
true, you should accept it as true.” The law provides, however,
that jurors need not accept the parties’ stipulations or find
the facts to which the parties stipulated. See State v.
Carreon, 210 Ariz. 54, 64 ¶¶ 47-48, 107 P.3d 900, 910 (2005);
Virgo, 190 Ariz. at 353, 947 P.2d at 927. The trial court did
not address stipulations in the final jury instructions, and
Allen did not challenge the preliminary instructions on appeal.
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three elements of the marijuana offense (possession of a usable

quantity of marijuana) and did not contest the third element

(that his possession was “knowing”), his stipulation was the

practical equivalent of a guilty plea, and therefore due process

concerns similar to those inherent in pleading guilty should

have triggered Boykin and Rule 17 colloquy requirements.

A. Federal Constitutional Requirements: Boykin v. Alabama

¶13 Pleading guilty to a criminal offense has significant

consequences. As the Supreme Court has explained, a “plea of

guilty is more than a confession which admits that the accused

did various acts; it is itself a conviction; nothing remains but

to give judgment and determine punishment.” Boykin, 395 U.S. at

242 (citing Kercheval v. United States, 274 U.S. 220, 223

(1927)). Because a defendant waives several constitutional

rights when pleading guilty — including the privilege against

self-incrimination, the right to trial by jury, the right to

proof of guilt beyond a reasonable doubt, and the opportunity to

confront accusers — the trial judge, to satisfy due process

concerns, must ensure that the defendant understands the rights

being waived and enters the plea agreement knowingly and

voluntarily. Id. at 242-43.

¶14 Allen acknowledges that he did not enter a guilty plea.

Nonetheless, he argues, because he stipulated to most of the

elements of the crime of possession of marijuana, the court

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should have advised him of his rights before reading the

stipulation to the jury. But stipulations to facts combined

with “not guilty” pleas are “simply not equivalent to a guilty

plea for Boykin purposes, even if the stipulation is to all

elements necessary to a conviction and even if it might appear

to a reviewing court that the stipulation serves little

purpose.” Adams v. Peterson, 968 F.2d 835, 842 (9th Cir. 1992);

see also Florida v. Nixon, 543 U.S. 175, 188 (2004) (finding

defense counsel’s statements to jury conceding defendant’s guilt

not “the functional equivalent to a guilty plea”). The

constitution does not compel a full Boykin colloquy in the

absence of a formal guilty plea. See Adams, 968 F.2d at 841;

see also id. at 845 (Kozinski, J., concurring) (observing that

Boykin established a prophylactic rule rather than a

constitutional requirement). Thus, Boykin does not require a

colloquy in this case.

B. The “Tantamount to a Guilty Plea” Standard

¶15 Allen contends, and the court of appeals concluded,

that a colloquy was required because Allen’s stipulation on the

marijuana charge gave up so much that it was the practical

equivalent of a guilty plea. Allen, 220 Ariz. at 434 ¶ 19, 207

P.3d at 687. At one time, Arizona cases extended the Boykin

colloquy requirement to a stipulation that was “tantamount to a

guilty plea.” See, e.g., State v. Woods, 114 Ariz. 385, 388,

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561 P.2d 306, 309 (1977); State v. Gaines, 113 Ariz. 206, 207,

549 P.2d 574, 575 (1976); State v. Crowley, 111 Ariz. 308, 310,

528 P.2d 834, 836 (1974). Nearly thirty years ago, however, we

explicitly rejected the “tantamount to a guilty plea” standard

as unworkable. State v. Avila, 127 Ariz. 21, 23, 617 P.2d 1137,

1139 (1980).

¶16 In Avila, the defendant submitted his case to the court

for determination based solely on the preliminary hearing

transcript and a police report. Id. at 22, 617 P.2d at 1138.

We noted that while “it must appear from the record that the

waiver was knowingly, intelligently and voluntarily made,”

defining when a submission became the functional equivalent of a

guilty plea had proven difficult. Id. at 25, 617 P.2d at 1141.

We observed that if a proffered submission does not concede all

elements of an offense, the judge may not know when it is

offered whether it is “tantamount to a guilty plea,” or whether

the defendant will instead vigorously contest the remaining

elements of the charge. Id. at 24, 617 P.2d at 1140. We also

noted “the unfair advantage permitted the accused” provided by

the “tantamount to a guilty plea” standard. Id. It allowed a

defendant to essentially plead guilty, yet retain rights

typically waived when entering a guilty plea, such as the “right

to test searches, [the] right to challenge the voluntariness of

pretrial admissions, and [the] right to test identification on

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appeal.” Id.

¶17 The standard creates other problems as well. It may

cause interruptions in a trial to ascertain whether warnings are

required and, if so, to give them. See Adams, 968 F.2d at 840

(relying on United States v. Terrack, 515 F.2d 558 (9th Cir.

1975)). Concurring in Adams, Judge Kozinski observed that “it

would be entirely unworkable to demand a Boykin inquiry every

time the defense and prosecution come to some arrangement . . .

that narrows the issues for trial.” Id. at 846. Moreover, such

a standard requires inappropriate judicial speculation as to

defense counsel’s trial strategy. Id. at 842. Presumably, if

the court can imagine a strategy, the stipulation may be

accepted without the necessity of warnings. If, however, the

court cannot identify a reason for a stipulation, a colloquy is

required. Courts should not have to guess whether a stipulation

will turn out to be strategic or tactical or whether

stipulations are sufficiently significant that they will be

“like pleading guilty.” For these reasons, we once again reject

the “tantamount to” or “functional equivalent of” a guilty plea

standard.

C. Requirements Under Arizona Rule Of Criminal Procedure 17

¶18 Arizona Rule of Criminal Procedure 17 requires a judge

to advise a defendant in open court of the consequences of

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pleading guilty or no contest3 and to ensure that the defendant

wishes to forgo the constitutional rights involved. Ariz. R.

Crim. P. 17.1-17.4. Rule 17.6 requires the court to ascertain

whether a defendant’s admission of a prior conviction is knowing

and voluntary. Id. R. 17.6; State v. Morales, 215 Ariz. 59, 60

¶ 1, 157 P.3d 479, 480 (2007).

¶19 Allen acknowledges that he did not plead guilty or no

contest and thus Rule 17.2 and 17.3 do not apply to his case.

Rule 17.6 also does not apply, because he does not challenge the

trial court’s finding of two prior convictions. Nonetheless,

Allen urges that, just as Rule 17.6 requires a plea colloquy for

stipulations to prior convictions, which are like elements of a

crime, we should similarly require a colloquy whenever a

defendant stipulates to facts that constitute elements of a

crime. He asserts that the reasoning in Morales, 215 Ariz. at

60 ¶ 1, 157 P.3d at 480, compels that result. Morales, however,

was grounded in the language of Rule 17.6 and relates solely to

prior convictions. See id. at 61 ¶¶ 7-8, 157 P.3d at 481.

Allen points to no language in Rule 17 compelling a similar

result for his evidentiary stipulations.

¶20 In the absence of a guilty or no-contest plea or a

stipulation to a prior conviction, nothing in Rule 17 requires a

3
These rights include the range of sentence as well as the
immigration consequences. Ariz. R. Crim. P. 17.2(b), (f).
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trial court to engage a stipulating defendant in a formal plea

colloquy. Although a prudent trial judge may opt to confirm on

the record that the defendant understands the consequences of

the stipulation, recognizes the constitutional rights he will

forgo, and agrees with the decision to stipulate, neither Boykin

nor Arizona Rule of Criminal Procedure 17 compels a colloquy.

D. Ineffective Assistance of Counsel Claim

¶21 The State argues that Allen’s claim is, in effect, an

ineffective assistance of counsel claim that should have been

raised in a Rule 32 proceeding rather than by direct appeal.

See State v. Spreitz, 202 Ariz. 1, 3 ¶ 9, 39 P.3d 525, 527

(2002). Although we agree that ineffective assistance claims

must be raised in Rule 32 proceedings, we disagree that Allen

has raised such a claim here. Instead, Allen has claimed that a

Boykin-type colloquy was required, and none was given. We have

rejected that claim, which rests solely on the record below, as

a matter of law. But to the extent a defendant claims that his

lawyer failed to obtain the client’s informed consent to a

stipulation, failed to adequately explain a stipulation, or

suggested a stipulation that proved to be unwise, such claims

require evidence outside the record for resolution and therefore

must be raised in a Rule 32 proceeding.

III. CONCLUSION

¶22 Boykin and the Arizona Rules of Criminal Procedure

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require a trial court to advise a defendant of the

constitutional rights he or she waives when pleading guilty.

When a defendant pleads not guilty, but stipulates to elements

of an offense, a trial court need not engage the defendant in a

colloquy under Boykin or Rule 17. The opinion of the court of

appeals is vacated in part and the judgment of the superior

court is affirmed.

_____________________________________
Rebecca White Berch, Chief Justice

CONCURRING:

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
Michael D. Ryan, Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

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