                                                                  FILED BY CLERK
                                                                      JAN 18 2007
                            IN THE COURT OF APPEALS                   COURT OF APPEALS
                                STATE OF ARIZONA                        DIVISION TWO
                                  DIVISION TWO


THE STATE OF ARIZONA,                         )
                                              )      2 CA-CR 2006-0050-PR
                             Respondent,      )      DEPARTMENT A
                                              )
                  v.                          )      OPINION
                                              )
CESAR FRANCISCO RUBIANO,                      )
                                              )
                                Petitioner.   )
                                              )


   PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. CR-20023485

                       Honorable Howard Fell, Judge Pro Tempore

                        REVIEW GRANTED; RELIEF DENIED


Barbara LaWall, Pima County Attorney
 By Nicol Green                                                              Tucson
                                                           Attorneys for Respondent

Robert J. Hooker, Pima County Public Defender
 By Kristine Maish                                                           Tucson
                                                             Attorneys for Petitioner


P E L A N D E R, Chief Judge.
¶1            Pursuant to a plea agreement, petitioner Cesar Francisco Rubiano was

convicted of attempted sexual conduct with a minor, a class three dangerous crime against

children. Thereafter, Rubiano sought post-conviction relief pursuant to Rule 32, Ariz. R.

Crim. P., 17 A.R.S., raising various claims. He argued the factual basis for the guilty plea

was insufficient because, inter alia, there was no evidence of the corpus delicti independent

of his admissions at the change-of-plea proceeding. In this opinion, we only address the

issue of whether the corpus delicti rule applies in the context of a guilty plea. We hold that

it does not. In a separate memorandum decision filed simultaneously with this opinion, see

Rule 111(h), Ariz. R. Sup. Ct., 17A A.R.S.; Rule 31.26, Ariz. R. Crim. P., 17 A.R.S., we

address Rubiano’s other claims and conclude they, like the claim addressed in this opinion,

do not entitle him to post-conviction relief.

¶2            Rubiano was charged by indictment with three counts of sexual conduct with

a minor under the age of fifteen, class two dangerous crimes against children. The victim

was his stepdaughter, who had been seven and eight years old at the time of the alleged

offenses. On the second day of trial in September 2003, Rubiano changed his plea of not

guilty and entered a guilty plea pursuant to a plea agreement.

¶3            During the change-of-plea colloquy, the trial court first informed Rubiano of

the sentences he would face if he were to proceed to trial and if the jury were to find him

guilty of all charges. The court also informed him of the potential consequences of pleading

guilty to attempted sexual conduct with a minor. The court gave Rubiano additional

information, reviewing the rights he would be waiving by entering the guilty plea and asking


                                                2
him a panoply of questions to ensure his guilty plea was knowing, voluntary, and intelligent.

The court then asked Rubiano, “At any time between March of 2001 and August of 2002

did you ever touch [the victim’s] private parts?” Rubiano responded, “Yes.” He again

answered affirmatively when the court asked him, “And when you did that, did you attempt

to put your finger inside of her body?” The court also asked Rubiano if he had reviewed the

victim’s statements and other evidence the state had compiled and whether Rubiano thought,

if the victim and other witnesses testified, “there’s a pretty good chance you might be

convicted in this case?” Rubiano responded, “Yes.” The trial court found the guilty plea

was knowing, voluntary, and intelligent and supported by an adequate factual basis. The

court accepted the plea and subsequently sentenced Rubiano to the presumptive, ten-year

prison term.

¶4             In February 2004, Rubiano filed a notice of post-conviction relief pursuant to

Rule 32, Ariz. R. Crim. P. Through appointed counsel, Rubiano maintained in his June

2005 petition that he was entitled to relief on various grounds. Rubiano claimed, inter alia,

there had been an insufficient factual basis for his guilty plea because “there was no corpus

delicti for the crime.” He argued that, ultimately, he had been convicted based on an

“untrue confession,” that is, the admissions he had made at the change-of-plea proceeding

as a result of his having been “confronted with the reality that if a jury were to find him

guilty, he would be sent to prison for the remainder of his natural life.”1


       1
        We note that Rubiano pled guilty here; the state did not offer a no contest plea, see
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970), a fact the trial court
specifically addressed during the change-of-plea proceeding.

                                              3
¶5            The trial court denied relief on all claims. In denying the corpus delicti claim,

the trial court correctly summarized the rule as requiring “corroborative evidence that an

offense occurred independent of Defendant’s confession.” See State v. Morgan, 204 Ariz.

166, ¶¶ 14-18, 61 P.3d 460, 464-65 (App. 2002). The court found Rubiano had failed “to

present a colorable claim” because “there was corroborating evidence, independent of [his]

statements, that the crime of Sexual Conduct with a Minor was committed.”2 We will not

disturb the trial court’s ruling absent an abuse of discretion. See State v. Schrock, 149 Ariz.

433, 441, 719 P.2d 1049, 1057 (1986). An abuse of discretion includes an error of law.

State v. Wall, 212 Ariz. 1, ¶ 12, 126 P.3d 148, 150 (2006). And whether the corpus delicti

principle applies to a change-of-plea proceeding involving a guilty plea is a legal question

of first impression in Arizona. We agree with the ruling below but base our conclusion on

a reason different from that cited by the trial court.

¶6            As the trial court correctly noted, the corpus delicti rule prohibits conviction

of a defendant “based upon an uncorroborated confession without independent proof of the

corpus delicti, or the ‘body of the crime.’” Morgan, 204 Ariz. 166, ¶ 15, 61 P.3d at 464,

quoting State v. Jones, 198 Ariz. 18, ¶ 12, 6 P.3d 323, 327 (App. 2000); see also Black’s

Law Dictionary 344 (6th ed. 1990) (defining corpus delicti as “body of a crime”). Stated

another way, the rule requires that, before a defendant’s confession or incriminating

statements may be admitted at trial as evidence of a crime, the state must establish with


       2
       We note that the trial court misspoke, in that Rubiano actually pled guilty to and was
convicted of attempted sexual conduct with a minor. That mistake, however, is
inconsequential.

                                              4
independent evidence that a crime occurred and that someone is responsible for that offense.

Jones, 198 Ariz. 18, ¶ 12, 6 P.3d at 327. “The corpus delicti rule was invented by courts,”

and although some states have codified the principle by statute, in most jurisdictions,

including Arizona, it is “entirely a creature of the common law.” Thomas A. Mullen, Rule

Without Reason: Requiring Independent Proof of the Corpus Delicti as a Condition of

Admitting an Extrajudicial Confession, 27 U.S.F. L. Rev. 385, 387 (Winter 1993).

¶7            “The purpose of the rule is ‘to prevent a conviction based solely on an

individual’s uncorroborated confession, the concern being that such a confession could be

false and the conviction thereby lack fundamental fairness.’” State v. Nieves, 207 Ariz. 438,

¶ 7, 87 P.3d 851, 853 (App. 2004), quoting State v. Flores, 202 Ariz. 221, ¶ 5, 42 P.3d

1186, 1187 (App. 2002); see also Smith v. United States, 348 U.S. 147, 153, 75 S. Ct. 194,

197 (1954) (purpose of corpus delicti rule is to prevent errors in convictions based on

untrue confessions); State v. Gerlaugh, 134 Ariz. 164, 170, 654 P.2d 800, 806 (1982)

(same). “The rationale for the [corpus delicti] doctrine was the realization that a defendant’s

confession might be untrustworthy due to mental instability or improper police procedures.”

State ex rel. McDougall v. Superior Court, 188 Ariz. 147, 149, 933 P.2d 1215, 1217 (App.

1996); see also Mullen, supra, at 400-05 (identifying historical purposes of corpus delicti

rule as protection of defendants of limited capacity, avoidance of involuntary confessions,

and promotion of better law enforcement).

¶8            Although no Arizona case directly addresses the issue before us, our supreme

court has noted that the corpus delicti principle applies to extrajudicial statements. State


                                              5
v. Atwood, 171 Ariz. 576, 597, 832 P.2d 593, 614 (1992) (“In Arizona, the prosecution

must establish a reasonable inference of the corpus delicti before it may introduce

defendant’s extrajudicial confession or admission as additional evidence of the crime.”). In

Kercheval v. United States, 274 U.S. 220, 225, 47 S. Ct. 582, 584 (1927), the United States

Supreme Court recognized the significant distinction between statements made

extrajudicially and those made in court within the context of a guilty plea. The Court stated:

“A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial

confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not

required; the court has nothing to do but give judgment and sentence.” Id. at 223, 47 S. Ct.

at 583. Based on principles of fundamental fairness, however, the Court held that evidence

of the defendant’s prior guilty plea could not be admitted against him at a later trial held

after the plea had been vacated and he had changed his plea to not guilty. Id. at 225, 47 S.

Ct. at 584.

¶9            In Lam v. Peyton, 268 F. Supp. 253, 254 (W. D. Va. 1967), the court relied

on that language in Kercheval in rejecting the defendant’s claim that the state had been

required to provide independent evidence of the corpus delicti through a witness in a guilty

plea proceeding. The court concluded that “corpus delicti must be established in order to

admit an extra-judicial confession” and refused to apply that rule to “a formal plea of

guilty.” Id.; see also Waley v. United States, 233 F.2d 804, 806 (9th Cir. 1956) (corpus

delicti rule inapplicable to plea of guilty made at trial); State v. Lee, 439 S.E.2d 547, 568

(N.C. 1994) (finding corpus delicti rule inapplicable at jury trial for sentencing of defendant


                                              6
who had pled guilty to first-degree murder); Mullen, supra, at 408 (recognizing

“infrajudicial statements” among exceptions to corpus delicti rule; “defendant may plead

guilty without independent proof of a crime, and a defendant’s in-court confession requires

no corroboration”); but see Commonwealth v. Fears, 836 A.2d 52, 67 (Pa. 2003) (applying

corpus delicti principle in determining validity of guilty plea).

¶10           We agree with the court in Lam that the corpus delicti rule does not apply in

the context of in-court guilty pleas. This position is consistent with that of the majority of

jurisdictions in which courts have not applied the rule to statements made by a defendant

in a judicial proceeding. See, e.g., Landsdown v. United States, 348 F.2d 405, 409-10 (5th

Cir. 1965) (addressing whether government had provided evidence of corpus delicti before

defendant’s extrajudicial admissions were admitted; finding defendant’s own statements at

trial could provide evidence of corpus delicti because “requirement of corroboration does

not apply to infrajudicial statements made by the accused”); Manning v. United States, 215

F.2d 945, 950 (10th Cir. 1954) (defendant’s own testimony may provide corroboration to

extrajudicial statements introduced at trial, and “rule requiring a confession to be

corroborated by proof of the ‘corpus delicti’ has no application to infra-judicial

confessions”); People v. Ditson, 369 P.2d 714, 731 (Cal. 1962) (“It is . . . elementary and

unquestioned that a defendant who chooses to testify is just as competent to establish the

corpus delicti as any other witness.”); Riley v. State, 349 N.E.2d 704, 706 (Ind. 1976)

(“[T]here is no requirement that the corpus delicti be established independent of the proof

of the crime, when the prosecution does not intend to rely upon an extrajudicial statement


                                              7
of the accused.”); State v. Staat, 822 P.2d 643, 647 (Mont. 1991) (prosecution not required

to provide independent evidence of corpus delicti at trial to corroborate defendant’s

“judicial confession,” admissions he had made in court at suppression hearing); Salazar v.

State, 86 S.W.3d 640, 645 n.18 (Tex. Crim. App. 2002) (“[I]n-court judicial confession[s]

need not be corroborated.”); Alvarez v. State, 374 S.W.2d 890, 891 (Tex. Crim. App. 1964)

(“The testimony of appellant from the witness stand is a judicial confession and as such

needs no corroboration.”); State v. Liles-Heide, 970 P.2d 349, 351 (Wash. Ct. App. 1999)

(defendant’s testimony at trial established corpus delicti for purposes of conviction for

driving under the influence of alcohol). As legal scholar John H. Wigmore stated, the corpus

delicti rule “has of course no bearing upon an infrajudicial confession, which is in effect a

plea of guilty.” 7 John H. Wigmore, Evidence § 2071, at 524 (Chadbourn rev. 1978).

¶11           Given the historical purpose of the corpus delicti rule—protection of

defendants from being convicted based on unreliable confessions that may have been

unfairly obtained—there is no reasonable justification for applying it to guilty plea

proceedings. Statements made in such a context are made under the supervision and,

essentially, the protection of a trial judge, who is required to ensure the defendant’s plea and

admission of guilt is made with the knowing, voluntary, and intelligent waiver of all relevant

constitutional rights. See Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 1711

(1969) (record must show guilty plea was knowingly, intelligently, and voluntarily made);

Kercheval, 274 U.S. at 223, 47 S. Ct. at 583 (“[A] plea of guilty shall not be accepted

unless made voluntarily after proper advice and with full understanding of the


                                               8
consequences.”); State v. Brown, 212 Ariz. 225, ¶ 15, 129 P.3d 947, 951 (2006) (same); see

also Ariz. R. Crim. P. 17.1(b), 18.1, 16A and 17 A.R.S. (setting forth criteria for defendant’s

entry of guilty plea and waiver of right to jury trial). In addition, a defendant’s statements

at change-of-plea proceedings typically are made in the presence and on the advice of

counsel.

¶12           In short, the danger that a defendant will be convicted based on coerced or

otherwise unfairly elicited and untrustworthy admissions is not the same in the change-of-

plea context as it is in the extrajudicial context. And, assuming a defendant’s plea is

somehow infirm, he or she is not without means of obtaining redress; the defendant may seek

to set aside the conviction entered pursuant to the guilty plea. See Kercheval, 274 U.S. at

224, 47 S. Ct. at 583 (defendant is bound by plea, “[b]ut, on timely application, the court

will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance,

fear or inadvertence”); see also State v. Ysea, 191 Ariz. 372, ¶¶ 23-24, 956 P.2d 499, 506

(1998) (recognizing a defendant may seek post-conviction relief pursuant to Rule 32, Ariz.

R. Crim. P., on ground that trial counsel had been ineffective by inducing defendant to enter

guilty plea); State v. Anderson, 147 Ariz. 346, 351-52, 710 P.2d 456, 461-62 (1985)

(same); Ariz. R. Crim. P. 17.5 (court may allow defendant to withdraw guilty or no contest

plea “to correct a manifest injustice”); Ariz. R. Crim. P. 32.1(a) (post-conviction relief

available if conviction obtained in violation of constitutional rights).

¶13           Finally, our supreme court’s decision in State v. Janise, 116 Ariz. 557, 570

P.2d 499 (1977), does not require application of the corpus delicti principle here. There,


                                              9
the defendant had submitted the case to the trial court to decide based on a police report

that contained his inculpatory statements. Id. at 558, 570 P.2d at 500. On appeal, the

supreme court agreed with the defendant that if the “police departmental report lacked

sufficient independent evidence to warrant a reasonable inference that the crime charged was

actually committed by some person, then appellant’s ‘confession’ in the report could not

be used.” Id. at 559, 570 P.2d at 501. Applying the corpus delicti rule, the court found

there was independent evidence to support the conviction. Id. Addressing a different

issue—whether the defendant had to be advised of the possible range of sentence before the

case could be submitted to the trial court—the supreme court stated that submitting the case

to the court based on the report was “tantamount to a plea of guilty.” Id. at 558, 570 P.2d

at 500. But, in Janise, unlike here, the defendant was not convicted based on statements

he had made in a judicial proceeding. Rather, the trial court had relied on the defendant’s

extrajudicial statements to support the finding of guilt.3 For that reason, independent,

corroborating evidence was required to support the conviction.

¶14           We hold, therefore, that the corpus delicti rule does not apply to statements,

including admissions, a defendant makes at a change-of-plea hearing in establishing a factual

basis for a guilty plea. Therefore, although the trial court in this case found that evidence



       3
         We note, moreover, that Rubiano was not convicted based solely on his admissions
at the change-of-plea hearing. Despite her later recantations, the victim had made statements
that Rubiano had sexually abused her. This was independent evidence that a crime had been
committed and that someone, specifically Rubiano, was culpable. See State v. Gillies, 135
Ariz. 500, 506, 662 P.2d 1007, 1013 (1983); State v. Morgan, 204 Ariz. 166, ¶¶ 23-24, 61
P.3d 460, 466-67 (App. 2002).

                                             10
independent of Rubiano’s statements at the change-of-plea hearing existed to support his

plea of guilty to attempted sexual conduct with a minor, the court did not have to make that

finding in order to deny Rubiano’s request for post-conviction relief. Consequently, we

grant Rubiano’s petition for review, but because the trial court did not abuse its discretion

in denying relief on this claim, we deny relief as well.



                                              ____________________________________
                                              JOHN PELANDER, Chief Judge

CONCURRING:



____________________________________
JOSEPH W. HOWARD, Presiding Judge



____________________________________
GARYE L. VÁSQUEZ, Judge




                                             11
