MOLLOY, Judge.
The petitioner applied to this court for a writ of habeas corpus after the summary denial of a petition for habeas corpus in the superior court, Pinal County. The factual allegations of the petition filed in this court raised some doubt as to the validity of the petitioner's conviction because of the constitutional issues presented. We therefore concluded that, had a like petition been filed in the superior court, a summary denial of the petition, without a hearing, may have been erroneous.
The Supreme Court of Arizona is vested with authority to issue writs of habeas corpus and make such writs returnable before a superior court or judge thereof. Art. 6, § 5, Ariz.Const., A.R.S.; A.R.S. § 13-2003. Although the court of appeals has jurisdiction to issue writs of habeas corpus, A.R.S. § 12-120.21, subsec. A (4), there is no statute vesting this court with authority to make such writs returnable to the superior court. See State v. Sheppard, 2 Ariz.App. 242, 407 P.2d 783 (1965). As indicated in Sheppard, this court does not have proper facilities for conducting fact-taking hearings. (2 Ariz. App. at 245, 407 P.2d 783.) Substance being of the essence, the appellate courts of this state authorized to grant relief by extraordinary writs are inclined to grant appropriate relief notwithstanding the writ applied for is labeled otherwise, Goodman v. State, 96 Ariz. 139, 140, 393 P.2d 148 (1964); State ex rel. Ronan v. Superior Court, 95 Ariz. 319, 390 P.2d 109 (1964). Though the petitions for habeas corpus filed contest the legality of the petitioner's detention in the state prison in Pinal county, they are in essence a collateral attack upon a judgment of conviction and sentence rendered in a criminal action in the superior court in Maricopa county. Oswald v. Martin, 70 Ariz. 392, 397, 222 P.2d 632 (1950). Accordingly, we have issued a writ of certiorari to review both the denial of the habeas corpus petition in Pinal county and the judgment and conviction in Maricopa county.
We believe we act within the scope of our authority in so doing. This is a statutory court, and there is but a "single"
An examination of the record in the Pinal county court establishes that the petition for habeas corpus filed in that court differs substantially from that filed here. The main thrust of the petition in the lower court is that the petitioner was held for twenty-three days after his arrest on a felony charge without "arraignment"
It has been held in this state that a "flagrant" (92 Ariz. at 73, 373 P.2d 583) violation of the counterpart statute, A.R.S. § 13-1418, pertaining to arrest without a warrant, for a period of 79 days, does not invalidate a conviction. State v. Maldonado, 92 Ariz. 70, 373 P.2d 583 (1962). It is understandable, therefore, that insofar as the petition below relied upon the failure to bring the accused "without unnecessary delay" before a magistrate, the petition was denied.
However, in the lower court we also find included in the petition the following allegations, which cause us some concern:
* * * * * *
In this court, the petitioner's pleading includes these assertions and is directed more at the contention of a coerced plea of guilty. The petition is verified and is supported by an affidavit containing factual allegations not contained in the petition below. Among these additional facts are:
The writ of certiorari to the Maricopa county court has produced records which do not necessarily refute the petitioner's allegations, as in Application of Parham, 6 Ariz.App. 191, 431 P.2d 86 (1967), but, to the contrary, in some respects corroborate them. At the time of the acceptance of plea of guilty, there is very little to substantiate that the defendant was acknowledging his guilt as to a crime as to which he himself conceived himself guilty. The transcript reveals that the only dialogue touching upon actual guilt is the following:
The record further reveals that though the warrant for the arrest of the defendant from the felony charge of which he stands convicted was issued on December 29, 1965, it was not served until January 20, 1966, the day upon which he was brought before a magistrate. Further, the record discloses that the charge of a prior conviction was dropped at time of sentence. The petitioner's
We are presented with the problem of whether either one or both of these petitions alleged sufficient grounds for the holding of a factual hearing to determine the validity of a plea of guilty when charges of "fraud and duress" have been made. These petitions are collateral attacks upon a final judgment, and, as such, demand consideration only to the extent that they raise questions which render the judgment void. State v. Court of Appeals, Division Two, 101 Ariz. 166, 416 P.2d 599 (1966); Franklin v. Eyman, 3 Ariz.App. 501, 415 P.2d 899 (1966); Applications of Oppenheimer, 95 Ariz. 292, 389 P.2d 696 (1964), cert. den. 377 U.S. 948, 84 S.Ct. 1359, 12 L.Ed.2d 311 (1964).
In contemplating such an attack as this, presumptions favor the regularity and validity of the judgment rendered below. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954); McKinney v. United States, 93 U.S.App. D.C. 222, 208 F.2d 844 (1953); Twining v. United States, 321 F.2d 432 (5th Cir.1963), cert. den. 376 U.S. 965, 84 S.Ct. 1126, 11 L.Ed.2d 982 (1964); Aiken v. United States, 191 F.Supp. 43 (D.C. 1961), aff'd 296 F.2d 604 (4th Cir.1961).
However, the presumption of regularity must yield, at least to the extent of granting a factual hearing, to verified assertions of fact not conclusively rebutted by the record which show that a plea of guilty was "involuntary," thus rendering the plea void. The degree of volition on the part of the accused which is essential to lend validity to a plea of guilty has been variously expressed. We quote from a few of the ever-increasing volume of cases dealing with attacks upon the voluntariness of a plea of guilty. In Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), it was indicated that a plea of guilty would be set aside if it were "* * * induced by promises or threats which deprive it of the character of a voluntary act * * *." (82 S.Ct. at 513.) Machibroda quoted with approval from Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009, 1012 (1927), as follows:
Machibroda cited Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1940), which held that a plea of guilty could be set aside if the defendant in giving his plea was "deceived or coerced." Scott v. United States, 349 F.2d 641, 643 (6th Cir.1965), would outlaw a plea if "* * * induced by a promise of lenient treatment * * *"; United States ex rel. Elksnis v. Gilligan, 256 F.Supp. 244, 253 (D.C. 1966), would do the same if a promise of leniency was a "* * * prime factor * * *" in inducing the plea. Our own Supreme Court has indicated that a plea of guilty should be set aside if it was " * * * induced by fraud or duress * * *" (these two words appear in the subject petition), State v. Murray, 101 Ariz. 469, 421 P.2d 317 (1966).
The differences in verbiage used in these various pronouncements only hint at the diversities in the decisions themselves. Words such as "voluntary," "coercion," and "duress," which tend to be common denominators of these opinions, gloss over underlying chasms in concept. This is especially so when "plea bargaining" is involved, as it is so apparently in this case.
A basic schism in the thinking is brought to the surface in Shelton v. United States, 246 F.2d 571 (1957), a decision which divided the Fifth Circuit Court of Appeals of the United States. In its first rendition in that case, reported at 242 F.2d 101 (1957), the Court held that a plea of guilty given
A dissenting opinion by Tuttle, Circuit Judge, became the majority opinion on rehearing, which is reported at 246 F.2d 571. The test adopted by a bare majority of the Court at that time was as follows:
The previous majority opinion becomes the dissenting one, which is found, rephrased, at 246 F.2d 577. In it is the statement:
In this dissent, there is considerable interest expressed in the actual guilt or innocence of the accused:
In certiorari proceedings to the United States Supreme Court, the Fifth Circuit Court opinion last released is reversed, on a confession of error by the Solicitor General, but also " * * * [u]pon consideration of the entire record * * *." 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958). If these Shelton opinions accomplish nothing more, they at least point up the underlying differences concealed below the high-sounding verbiage which is traditionally used.
That plea-bargaining is actually occurring in this country on a massive scale has been judicially noticed. Cortez v. United States, 337 F.2d 699 (9th Cir.1964), cert. den. 381 U.S. 953, 85 S.Ct. 1811, 14 L.Ed.2d 726 (1965); Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966); Barber v. Gladden, 220 F.Supp. 308 (D.C. 1963), aff'd 327 F.2d 101 (9th Cir.1964); Shelton v. United States, 242 F.2d 101, 115 (dissenting opinion) (5th Cir.1957). Its existence has been recognized by our own Supreme Court, without any indication of disfavor. State v. Maberry, 93 Ariz. 306, 380 P.2d 604 (1963); State v. White, 102 Ariz. 18, 423 P.2d 716 (1967); and, State v. Martinez, 102 Ariz. 215, 427 P.2d 533 (1967). In White, our Supreme Court cited, with apparent approval, Commonwealth
In the Maroney case, it was accepted by the Court that the inducement for the defendant's submitting a plea of guilty to a charge of second degree murder was to avoid running the risk of "`* * * going to the electric chair'" (223 A.2d at 703). It is difficult for this court to conceive of a more persuasive inducement.
It is very apparent from reading the decisions in this troublesome field of "voluntariness" that pleas of guilty are usually sustained when there have been coercive influences far greater than those which would be permitted if an ordinary contractual relationship were at stake. See Restatement of the Law, Contracts § 493, and illustrations thereunder.
The very fact that a person has been arrested and brought forcibly before the court for an arraignment at which he must publicly declare his guilt or innocence obviously runs counter to the fondest wishes of the accused. Most defendants can think of something better to do. When a defendant is promised a reduction in charge or the dropping of several counts of a multicount information or indictment, to say that he is not induced by "threat or promise" is to take some liberty with the English language and yet this is exactly the conclusion reached by courts.
The difference between a "threat" and a "promise," in the context at hand, is nebulous. The prosecutor may "threaten" to file other charges or he may "promise" not to do so. There is little difference between the two expressions except in the emotional tone generated in the reader. To the average defendant, the whole situation is a threatening one, and in his mind it is most appropriate to use the word "threat" when referring to whatever statements a law-enforcement officer may make in connection with the bringing of other charges against him. And, the more unpunished crime the accused knows himself guilty of, the more menacing such "threats" will be. To the conscientious prosecutor, seeking to avoid what to him may appear the needless expense of a jury trial, plea-bargaining is not intimidation.
To say that any plea of guilty is "not voluntary," when hypnotism, drugs or aberrations of the mind are not present, is true in only a figurative sense:
We agree with the statement found in a leading law review article
Nor can we accept, until the United States Supreme Court becomes more explicit, the innuendo of that Court that a plea of guilty must run the same gauntlet of "voluntariness" as a confession. We refer to statements such as that found in Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942):
If pleas of guilty are to be equated with confessions insofar as "coercion" is concerned, then pleas of guilty involving plea-bargaining in any degree cannot stand the test.
It is to be noted that neither the petition in the lower court nor the one presented here indicates that the petitioner did not understand what he was doing when he "copped a plea" to the attempted burglary charge. Nor is there any assertion that the prosecution failed to keep promises of dropping other charges. In evaluating the petitions, then, we are squarely presented with the dichotomy of philosophy which plagued the Fifth Circuit in the strange case of Shelton.
The nature of this choice can perhaps best be brought home by postulating the case of a defendant accused of first degree murder in this State, where the death penalty is still occasionally imposed. If such an accused were to come before a trial court on a motion by the county attorney to reduce the charge to second degree murder and the defendant were willing to enter a plea of guilty to this reduced charge, the trial court might very well ask the defendant whether he had actually killed the person whom he is charged with murdering. If the accused should respond that he certainly had not, as he was in Texas at the time of the alleged incident, few trial courts would be inclined to accept the plea of guilty, no matter how the accused and the county attorney might importune the court. And this would seem right and just to everyone,
That the court in passing upon the validity of a plea of guilty should not be concerned with whether the defendant is actually guilty finds sustenance in such dicta statements as found in the early case of Kercheval v. United States, supra:
Broad statements to the same effect may be found in United States ex rel. Cuevas v. Rundle, 258 F.Supp. 647, 657 (D.C. 1966); United States v. Tateo, 214 F.Supp. 560, 564 (1963); and Woodring v. United States, 248 F.2d 166, 169 (8th Cir.1957). See also, Hoover v. United States, 268 F.2d 787, 790 (10th Cir.1959); Gandy v. United States, 235 F.Supp. 373, 375 (1964). Of course, if we are equating confessions and pleas of guilty, such an approach has authoritative support in Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961).
A leading law review article arrives at the conclusion that the court should not be concerned with the actual guilt of the accused in accepting a plea of guilty, but only with whether there is sufficient credible evidence to convict him. Paradoxically, its line of rationalization is that there is a basic difference between confessions and pleas of guilty:
This view, upholding a plea-bargain if understandably made, regardless of "actual" guilt, has inescapable pragmatic validity. Neverthless it is our judgment that its very pragmatism will make it unacceptable to a majority of the present constituency of the Supreme Court of the United States. The view smacks too much of mercantilism to receive countenance in that Court, which appears to be dedicated to humanistic values. We, therefore, take the "high road," the guideposts of which may be found in the dissenting opinion in the last rendition of the Fifth Circuit in the oscillating case of Shelton, which opinion would appear to be that favored by the Supreme Court of the United States:
The same approach has been expressed in somewhat different language in Cortez v. United States, supra:
And see Smith v. People, 428 P.2d 69 (Colo. 1967).
If it is "voluntariness" in any sense that is the test of the validity of a plea of guilty, then certainly we are to some extent evaluating the mental state of the accused. And in the train of thoughts of the accused, it seems most probable that volitional decisions in regard to pleading to a criminal charge are amalgamated with whatever concepts the accused may have as to his actual guilt or innocence. To insist upon separating out of this amalgam at a factual hearing only the strictly volitional thought processes is to overestimate the state of the art, both psychiatric and forensic.
Having taken the "high road," because we believe it to be in accord with the view of the United States Supreme Court, the final arbiter, we conclude that the petition for writ of habeas corpus filed in this court states sufficient facts to merit a factual hearing on the charge that the plea of guilty was "involuntary." Taking all of the factual allegations of this petition as true, we are of the opinion that this plea of guilty lacks that degree of reliability and trustworthiness demanded by due process. However, we are also convinced that the petition for habeas corpus filed in the superior court did not state sufficient facts to require a hearing.
Pro se petitions for habeas corpus relief should be liberally construed and read with a measure of tolerance, McKinney v. Taylor, 344 F.2d 854 (10th Cir.1965); Smith v. Settle, 302 F.2d 142 (8th Cir.1962); Sas v. State of Maryland, 334 F.2d 506 (4th Cir.1964); Pike v. Dickson, 323 F.2d 856 (9th Cir.1963), cert. den. 377 U.S. 908, 84 S.Ct. 1164, 12 L.Ed.2d 179 (1964). However, a petitioner is still required to allege facts, which if proved, would entitle him to relief. Collins v. Beto, 245 F.Supp. 639 (D.C., 1965); United States ex rel. Hawryliak v. Maroney, 235 F.Supp. 135 (1964); Adamson v. Nash, 218 F.Supp. 841 (D.C., 1963); Crescioni v. Settle, 202 F.Supp. 868 (D.C., 1962). Mere conclusional allegations, unsupported by facts, will not suffice to require a court to grant a hearing on the petition. Schlette v. People of State of California, 284 F.2d 827 (9th Cir.1960), cert. den. 366 U.S. 940, 81 S.Ct. 1664, 6 L.Ed.2d 852 (1961); Grant v. State of Georgia, 358 F.2d 742 (5th Cir.1966); Martinez v. United States, 344 F.2d 325 (10th Cir.1965); Heisler v. United States, 321 F.2d 641 (9th Cir.1963); see also Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).
The petition for habeas corpus relief filed in superior court consists of an admixture of legal citations and quotations, legal argument, and a few facts, most of which are of a conclusional nature. Construing these allegations with as much liberality as is proper, and recognizing some degree of discretion in the trial court, Boies v. Dovico, 97 Ariz. 306, 400 P.2d 109 (1965), we cannot say that there was error in denying the petition filed below. It is our view that a habeas corpus petition should be devoted principally to a simple and intelligible statement of specific facts upon which the claim for relief is based, and that extensive legal citation is often of little help to the court. See Johnson v. Avery, 252 F.Supp. 783, 787 (1966).
This general law would appear to be intended for this State by Rule 1(b) (1), Rules of the Supreme Court, 17 A.R.S., which reads:
Under this Rule, the petition to this court for writ of habeas corpus is denied. Because insufficient facts were alleged below, the order entered in the superior court in Pinal county denying the petition for habeas corpus is affirmed on certiorari, without prejudice to amend or refile. See Heisler v. United States, supra; Swepston v. United States, 227 F.Supp. 429 (1964); Hamby v. United States, 217 F.Supp. 318 (1963); Aiken v. United States, 282 F.2d 215 (4th Cir.1960); Burleson v. United States, 205 F.Supp. 331 (1962), motion to vacate subsequently denied, 209 F.Supp. 464 (1962), when petitioner failed to amend. The writ of certiorari to the superior court in Maricopa county, having served its purpose in permitting us to look at the petition before us in the light of that record, is quashed.
HATHAWAY, C.J., and KRUCKER, J., concur.
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