This is an appeal from a judgment of guilt entered after defendant pleaded guilty to a charge of rape.
We are called upon to determine:
The facts necessary for a determination of this matter on appeal are as follows. On 5 December 1969, an information was filed in the Superior Court of Maricopa County charging the defendant with one count of kidnapping in violation of § 13-491 A.R.S. and one count of rape in violation of § 13-611 A.R.S. Defendant was arraigned on these charges on 10 December 1969, and he pleaded not guilty to each count. As a result of "plea bargaining", the defendant came before the court on 2 February 1970 for a change of plea. It was understood that defendant would plead guilty to the rape charge, and the kidnapping charge would be dropped. At this time the following transpired:
On 24 March 1970, defendant was sentenced to serve not less than ten nor more than 15 years in prison. The kidnapping charge was dropped. On 23 April 1970, the defendant filed his notice of appeal to this court.
WAS THE PLEA PROPER?
Defendant contends that, in light of Boykin v. Alabama, supra, his plea of guilty to the rape charge was improperly taken, in that the judge did not personally conduct the interrogation wherein defendant was asked whether he understood which constitutional rights he was waiving in pleading guilty.
The United States Supreme Court in Boykin v. Alabama, supra, stated:
The court also cited in a footnote Rule 11 of the Federal Rules of Criminal Procedure as an acceptable standard. Boykin, supra, n. 5 at 243, 89 S.Ct. 1709. Federal Rule 11 reads as follows:
There is a question whether Boykin v. Alabama, supra, mandates the State court to strictly follow the letter of Federal Rule 11 in determining whether a guilty plea is voluntarily, intelligently, and knowingly made. This court may have added to the confusion in Arizona by stating, "[w]e observe that Federal Rule 11 relates to procedures in the federal courts. * * * We are reluctant to impose upon Arizona the [Rule 11] requirement raised by the defendant." State v. Hooper, 107 Ariz. 327, 487 P.2d 394, 396 (1971). See also State v. Gilbreath, 107 Ariz. 323, 487 P.2d 390 (1971). And also stating that, "[t]his case [Boykin], in effect, extended the procedural requirements of Rule 11 * * * to the state courts." State v. Laurino, 106 Ariz. 586, 588, 480 P.2d 342, 344 (1971). See also State v. Campbell, 107 Ariz. 348, 488 P.2d 968 (1971) and State v. Sullivan, 107 Ariz. 98, 482 P.2d 861 (1971).
It is, of course, clear from Boykin, supra, that if the plea of guilty satisfies Federal Rule 11 then the requirements of Boykin, supra, have also been met. This does not mean, however, that the State courts are required to follow the letter of Federal Rule 11. It is adherence to the spirit of Federal Rule 11 and not necessarily the literal observance of its provisions that is required by the mandate of Boykin v. Alabama, supra.
In the instant case, the defendant would have us strictly adhere to the letter of Rule 11 of the Federal Rules of Criminal Procedure and require that the judge personally conduct the interrogation of the defendant to determine whether the defendant understands each of the constitutional rights he is waiving by pleading guilty. We do not agree. The requirement in Rule 11 that the judge address the defendant personally to determine whether the plea is voluntary cannot be construed to require the judge to personally conduct the entire examination of defendant without the aid of counsel. All that is required is that the court address the defendant personally to determine if the plea is voluntarily and understandingly made.
In this case, the defendant's attorney conducted an examination of defendant as to the rights he was waiving and as to whether any force or coercion was placed on him. The judge then addressed the defendant personally before taking the plea and also before sentencing. We hold that the record shows a knowing, intelligent, and voluntary plea.
WAS THE PLEA TO RAPE PROPER?
Defendant contends further that he was not advised as to the nature of the charge. He contends that, since he was charged with rape without any designation as to whether it was first or second degree rape, the plea is defective. Again we disagree.
This question was determined by this court in the case of State v. Lewis, 107 Ariz. 163, 483 P.2d 1402 (1971), wherein a majority of this court held that any error in a rape prosecution in not determining the degree prior to sentencing was harmless where the sentence was within the range and limits of both degrees of rape. In the instant case, the facts as brought out at the hearing on the plea and sentencing indicate both first and second degree rape and rape committed with a knife. Although this writer does not retreat from his dissent in Lewis, supra, a proper respect for the theory of stare decisis indicates that the majority in State v. Lewis, supra, should be followed unless overruled.
WAS THERE A FACTUAL DETERMINATION?
Finally, the defendant contends that the plea was improperly taken because no factual basis was established for the plea,
Furthermore, we believe the record indicates that the trial court was sufficiently informed as to the factual basis of the plea both at the time of the plea and at the hearing before sentence was imposed:
STRUCKMEYER, C.J., HAYS, V.C.J., and UDALL and LOCKWOOD, JJ., concur.