State v. Browne
State v. Browne
Opinion of the Court
OPINION
By separate informations, petitioner Browne was charged with two counts of armed robbery with a gun in violation of former A.R.S. §§ 13-641 and 13-643(B).
In its responses, the State asserts that petitioner is precluded from raising the issue pursuant to Rule 32.2, Rules of Criminal Procedure, 17 A.R.S., because he had knowingly, voluntarily and intelligently not raised the issue on appeal. The State also asserts that petitioner’s allegations are unsupported by fact because when the guilty pleas were taken, petitioner was specifically asked by the trial court whether his pleas were in any way induced by threats or force, to which he answered “no”.
The trial court denied relief on the grounds of preclusion and waiver. Citing State v. Lerch, 107 Ariz. 529, 490 P.2d 1 (1971), the trial court held that because at the taking of the pleas, petitioner stated on the record that he had not been forced, coerced or threatened to enter the pleas, he waived any later right to claim that the pleas were coerced.
Timely motions for rehearing were filed reasserting the allegations in the petitions for post-conviction relief and further arguing that the petitioner was entitled to a hearing pursuant to Rule 32.8, Rules of Criminal Procedure, 17 A.R.S. The motions were denied and timely petitions for review were taken to this Court. Because of the identity of issues, the matters were consolidated in this Court.
The Petition for Post Conviction Relief does not indicate what the wife was going to testify to, or how she could aid defendant. One has to wonder what her testimony would consist of since defendant has admitted to commission of all the armed robberies involved here. In addition, the record clearly indicates that the defendant has been identified by both managers of both of the victim establishments.
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The letter in the file dated October 11, 1978, is also worthy of specific consideration as to why that petition should not be granted. Nowhere in that letter, or even in the prior Petition does the defendant indicate that the testimony of his wife would indicate his innocence or that he did not commit the crimes in question. Rather, a fair evaluation of the file as a whole and specifically the letter in question clearly indicates his admission of two violent crimes, a long and detailed violent history and that he was a danger to society. The letter presents only a plea for mercy because of a violent childhood and youth.
His brother’s abuse of his wife is irrelevant to the issue of petitioner’s guilt or innocence. Under these circumstances, the claim to “duress” is insubstantial and waived. See State v. Lerch, supra.
Our review of the record shows that no colorable claim was raised in either petition. The trial court, therefore, properly handled the matter summarily without the necessity of a further hearing. Rule 32.6, Rules of Criminal Procedure, 17 A.R.S.
Relief is denied.
NOTE: The Honorable J. THOMAS BROOKS, Coconino County Superior Court Judge, was authorized to participate by the Chief Justice of the Arizona Supreme Court pursuant to Arizona Const, art. VI, § 3.
. Now A.R.S. § 13-1904.
. State v. Browne, 1 CA-CR 3648 and 1 CA-CR 3649, Memorandum Decisions filed February 6, 1979.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.