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Arizona Supreme Court: Stipulated Plea Agreement Cannot Bar Review of Illegal Sentence

The Court’s August 12, 2020, opinion was issued in an appeal by Demitres Robertson. She was charged in August 2002 with first-degree murder and two counts of intentional child abuse for acts that occurred in November 2001. She faced a mandatory sentence of life on the murder charge and up to 28 years on the child abuse charges.

A plea agreement was reached that allowed Robertson to plead to manslaughter and reckless child abuse. It provided for a sentencing range of eight to 15 years’ imprisonment on the manslaughter charge and a consecutive term of lifetime probation on the child abuse conviction.

The plea court sentenced her to 10 years in prison and a consecutive life probation term.

Robertson was released from prison in 2010. She violated probation in 2014 and 2016 but was reinstated with additional conditions. A March 2017 violation resulted in intensive probation, which she subsequently violated. At the revocation hearing, she argued for the first time that the stipulated consecutive sentences were illegal. Robertson invoked Arizona Revised Statutes (“A.R.S.”) § 13-116, which provides “[a]n act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent.”

The court denied the oral motion to dismiss the revocation petition. It revoked Robertson’s probation and imposed a 3.5 year prison sentence with 260 days of presentence incarceration credit. Robertson appealed, but the Court of Appeals affirmed, finding that she was precluded from challenging her sentence on appeal because she had invited any potential error by stipulating to consecutive sentences in her plea agreement. The Arizona Supreme Court granted review.

The Court of Appeals recognized that State v. Regenold, 249 P.3d 337 (Ariz. 2011), ruled a defendant’s “guilty plea does not waive all challenges to a subsequent sentence imposed after a probation violation” but ruled Regenold does not dictate the outcome in this case. The Arizona Supreme disagreed, finding Robertson’s case was indistinguishable from Regenold. Robertson, therefore, could contest the probation violation and sentence.

The crux of the case was whether the invited error doctrine precluded Robertson from challenging the error on appeal. The Arizona Supreme Court held it did not. “The invited error doctrine prevents a party from injecting error into the record and then profiting from it on appeal.” State v. Rushing, 404 P.3d 240 (Ariz. 2017). The doctrine should not apply “unless it is clear from the facts that the party asserting the error on appeal is responsible for introducing the error into the record.” State v. Escalante, 425 P.3d 1078 (Ariz. 2018).

The Court explained that the doctrine “only applies when the facts show the party urging the error initiated, or at least actively defended, the error rather than passively acquiescing in it.” The Court noted that the doctrine can’t be applied to “stipulated plea agreements without determining the source of the error.” The Court instructed that “in the context of stipulated plea agreements, the invited error doctrine should apply only where ‘the party took independent affirmative unequivocal action to initiate the error [or actively defended the error] and did not merely fail to object to the error or merely acquiesce in it.’” Quoting State v. Lucero, 220 P.3d 249 (App. 2009).

The Court observed that “given the unequal bargaining power between the state and a defendant, the latter is usually in no position to dictate the specific terms to be included in plea agreements.” While the invited error doctrine may apply to some stipulated plea agreements, a court cannot apply that “doctrine to prevent review of a potentially illegal sentence stemming from a stipulated plea agreement,” wrote the Court. A.R.S. § 13-4037(A) expressly requires courts to correct an illegal sentence.

Because “the state is in control of the plea terms, it ‘bears the risk’ of mistake should the plea result in an illegal sentence,” the Court stated. Additionally, the Court explained that the State can’t rescind a plea agreement because an illegal provision is deleted from the agreement. State ex rel. Polk v. Hancock, 347 P.3d 142 (Ariz. 2015). Thus, the Court held that the Court of Appeals misapplied the invited error doctrine.

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Related legal case

State v. Robertson



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