In 1968, an information was filed accusing appellant of unlawful possession of heroin and alleging two prior convictions. He subsequently plead guilty to the charge of possession, and at the time of sentencing the allegations of prior convictions were dismissed. He was sentenced to a term of not less than four nor more than seven years imprisonment in the state penitentiary. Approximately six months after commencement of his sentence, appellant moved to vacate the conviction and sentence and to withdraw his guilty plea. His motion stated:
A hearing on the motion was conducted by the same judge who received appellant's guilty plea. Appellant testified, as did the adult probation officer summoned by the court. Appellant's motion was denied and this appeal followed.
This case is a classic example of "plea bargaining," a practice which has been judicially approved so long as the rights of a defendant are protected. State v. Jennings, 104 Ariz. 3, 448 P.2d 59 (1968), modified on other grounds and affirmed on rehearing, 104 Ariz. 159, 449 P.2d 938 (1969). Here, appellant's post-conviction attack is predicated on the claim that his plea was not "intelligently" made in that he did not have a full understanding of the consequences of his guilty plea.
At the hearing on the motion to vacate, appellant admitted that his attorney had informed him of the minimum and maximum punishment for the offense to which he was pleading guilty (not less than two nor more than ten years). The gravamen of his complaint was that he was not informed of the fact that he would not be eligible for release from the state prison until he had served a minimum of two years calendar time. In other words, he would not have the benefit of the credits afforded by A.R.S. § 31-251, as amended, and A.R.S. § 31-252, against a two-year minimum sentence.
Courts are not in accord as to whether a trial court, before accepting a plea, must advise a defendant as to the unavailability of parole. Some courts take the view that anything which affects the length of detention, such as the unavailability of parole, is a "consequence" as to which a defendant must be advised. E.g., Durant v. United States, 410 F.2d 689 (1st Cir.1969); Berry v. United States, 412 F.2d 189 (3rd Cir.1969); Munich v. United States, 337 F.2d 356 (9th Cir.1964). Other courts, however, take a contrary view. E.g., Anushevitz v. Warden, Nevada State Prison, 467 P.2d 115 (Nev. 1970); Smith v. United States, 116 U.S.App.D.C. 404, 324 F.2d 436 (1963), cert. denied, 376 U.S. 957, 84 S.Ct. 978, 11 L.Ed.2d 975 (1963); Trujillo v. United States, 377 F.2d 266 (5th Cir.1967), cert. denied, 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221 (1967).
We are of the opinion that even if there is a duty to inform as to the unavailability of parole, the failure to do so in the instant case was harmless beyond a reasonable doubt. Appellant was sentenced to a term of not less than four nor more than seven years. However, he was not a first offender and therefore would be entitled to credits only against the maximum term of his sentence. A.R.S. § 31-251, subsec. B, as amended; A.R.S. § 31-252, subsec. A. Thus we see that the statutory prohibition against release prior to the expiration of two years makes no difference here since appellant, having been previously convicted, would not be entitled to release by virtue of earned credits prior to two years.
Appellant also complains that the trial court improperly inquired into the subject of his guilt, pointing out that guilt or innocence was not an issue, and cites State v. Corvelo, 91 Ariz. 52, 369 P.2d 903 (1962). At the time appellant entered his plea of guilty, he responded affirmatively to the following question from the court:
At the time of the hearing on his motion to vacate, we find the following inquiry:
It thus appears that at the hearing on his motion to vacate, appellant, in essence, professed innocence contrary to his position at the time he plead guilty. The court was apparently concerned as reflected by the following:
Appellant's counsel objected to allowing the probation officer to testify, arguing that the question of guilt or innocence was not to be considered in these proceedings. The court, however, responded:
The probation officer testified that during his pre-sentence investigation discussion with appellant, he admitted his guilt of the offense and gave no indication that he plead guilty for any reason other than the fact that he was guilty. We do not believe that the trial court's inquiry was for purposes of determining guilt or innocence per se, but solely for purposes of determining that the plea was a genuine one by a defendant who was guilty. Application of Buccheri, 6 Ariz.App. 196, 431 P.2d 91 (1967); Smith v. People, 162 Colo. 558, 428 P.2d 69 (1967); Cortez v. United States, 337 F.2d 699 (9th Cir.1964), cert. denied, 381 U.S. 953, 85 S.Ct. 1811, 14 L.Ed.2d 726 (1965).
The trial court apparently concluded from the inquiry into the circumstances of the plea that it was voluntarily and intelligently made. We are unable to say that he erred and therefore defer to his determination.
HOWARD, C.J., and HATHAWAY, J., concur.
Note: This cause was decided by the Judges of Division Two as authorized by A.R.S. § 12-120, subsec. E.