Scarborough v. Superior Court Of The State Of Arizona

889 P.2d 641 (Ariz. Ct. App. 1995)

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Nature of the Case

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Facts

D was indicted on one count of fraudulent schemes, and three counts of theft. The charges arose out of a scheme involving D and a co-defendant, by which D, through various business names, allegedly submitted invoices for unperformed services to the corporate victim, for which the co-defendant would authorize payment. After payment was sent to D, he and the co-defendant allegedly split the proceeds. The amounts fraudulently billed to the corporate victim allegedly exceeded $1.36 million. D entered into a plea agreement with the state, which provided for him to plead guilty to one count of attempted theft and to pay restitution on all counts not to exceed $1.5 million. In exchange, the state agreed to dismissal of the remaining counts and an allegation of a prior felony conviction. Counsel for the victim objected to the plea agreement as too lenient, read a statement from the individual investors of the corporate victim regarding the harm they had suffered and asked the court to reject the plea agreement. The state urged the court to accept the agreement, arguing that the sentencing range it afforded was 'sufficiently broad to do justice,' that the victim would receive full restitution, and that a trial would be both lengthy and complex, placing a burden on both the county attorney's office and the court's schedule. After D admitted his guilt and verified the state's factual basis for not only the amended count but all the charges against him, the court rejected the plea agreement, finding that judicial economy should not 'be a very great consideration' where such serious allegations are involved, and that the state appeared able to prove the allegations at trial. The court instructed D to submit a written motion if he desired a change of judge. D filed his Motion to Change Judge Under Rule 17.4 and 10.1. D argued that although the presentence report had not yet been prepared, the court had been privy to similar prejudicial information regarding D's guilt during the change of plea hearing. The state indicated it did not oppose the motion. The court denied the motion because no presentence report has been prepared in this Court. This appeal resulted.