[Part 1 of 2*] Driver plea bargains for 2 year sentence, wants it secret; passenger seeks suppressio
2 years after arrest, co-defendants in Elfrida-area marijuana transport case take different paths towards resolution
Plea agreement, normally public, leads to Appeals Court special action
BISBEE - Sheri Lyn Middleton Hogan wanted to sign a plea agreement with prosecutors in order to avoid going to trial on 6 drug-related counts. She was willing to plead guilty to two counts - transporting marijuana for sale and possession of drug paraphernalia - stemming from a 2014 traffic stop. But she wanted the terms of that agreement kept secret.
Plea agreements -also known as plea bargains- typically provide an upside for all parties. The court saves money not holding a trial. The prosecution is assured a conviction. And the defendant usually ends up with a shorter sentence than if found guilty at trial.
As part of her agreement, Hogan would be required to “provide truthful testimony at any proceeding to which she may be subsequently subpoenaed” in the case against her co-defendant Maria Sallard. She was also required to waive her right to direct appeal in her case.
But when Hogan tried to have the plea agreement sealed (restricted from public access) she found that by waiving her right to direct appeal she had limited her legal options for getting the document sealed.
COUNTY PUBLIC DEFENDERS TRY TO KEEP DOCUMENT FROM PUBLIC ACCESS, BUT DON'T IDENTIFY THE POSSIBLE HARM
Cochise County Superior Court judge Wallace Hoggatt accepted Hogan’s plea agreement on June 10, at which time deputy public defender Xochitl Orozco sought to have the document sealed. Hoggatt denied the request and the plea agreement was added to the official case file kept by the Clerk of the Superior Court in accordance with Arizona Supreme Court rules for records in adult criminal cases.
Another motion to seal the document was filed June 15, and deputy public defender Kevin Oursland tried a third time at Hogan’s July 8 sentencing. The judge denied those requests as well. The next week Orozco filed a motion asking Hoggatt to stay - put on hold - his decision to not seal the plea agreement, explaining that “continued access to the plea agreement subjects Ms. Hogan to potential harm and prejudice.”
Orozco also noted that because the case “was resolved via plea agreement, Ms. Hogan has no right to an appellate review of the denial of the motion to seal.”
Deputy county attorney Roger Contreras, who prosecuted Hogan’s case, objected to the motion, arguing that it “seeks an Order of this Court which would violate the Arizona Public Records Act.” Contreras, who noted the document has been publicly available since June 10, added that Hogan’s motion “fails to identify any harm that would result from the failure of the Court to grant her Motion.”
APPEALS COURT SEALS ARGUMENTS FOR SEALING THE AGREEMENT
On July 18, Hoggatt denied the motion for stay, calling the issue “moot” based on “the plea agreement already having been filed at the time it was presented.” On September 9, defense attorney Orozco filed a special action petition on Hogan’s behalf with the Arizona Court of Appeals (Division 2).
Contreras will provide the state’s response to the petition and all parties have until October 7 to file their pleadings, says Jeff Handler, Clerk of the Appeals Court. He noted that because the petition and related documents have been sealed by presiding judge Joseph Howard no additional information is available, including the specific action requested of the Court.
Mary Ellen Dunlap is the elected Clerk of the Superior Court who oversees public access to court records. She says that if a judge orders a document to be sealed from public access, then all copies of the document are pulled from the file and placed in a secured envelope marked “sealed.” The envelope cannot be opened without a court order.
THE STOP THAT STARTED IT; DPS OFFICER FOLLOWS TRUCK 20 MILES
Hogan’s case - and that of co-defendant Maria Sallard - started July 17, 2014 when Arizona Dept. of Public Safety (DPS) officer Jeff Richardson noticed a pickup truck with Texas plates traveling on Highway 191 near Elfrida. Richardson followed the vehicle for nearly 20 miles before initiating a traffic stop for speeding (60mph in a 55mph zone) and crossing the shoulder line.
According to the officer’s probable cause statement, Hogan was at the wheel of the truck and Sallard was in the passenger seat. He kept the women separated after the stop, and noted he became suspicious due to their differing accounts of where they had been. He also thought Hogan appeared nervous because she “began pacing back and forth and looking at the pickup.”
Richardson reported that Hogan declined to give consent for a search of the truck, so the pair was detained for more than an hour until Cochise County Sheriff deputy Marsha Callahan-English arrived on scene with her canine partner Nobe, a certified drug-sniffing dog. Nobe “alerted to the pickup” and officers then performed a search which revealed 49 packages of marijuana totaling 48.8 pounds.
The women were arrested at the scene on drug charges but their cases were dismissed when the Cochise County Attorney’s Office failed to file a complaint. Then on June 11, 2015 they were indicted by a county grand jury, with Hogan charged with 6 violations of Arizona law, including conspiracy, possession of marijuana for sale, transportation of marijuana for sale, and possessing drug paraphernalia. Sallard, the passenger in the truck, was indicted on 5 drug-related counts and 1 count of providing false information to police.
ONE DEFENDANT IN PRISON, THE OTHER MAY GO TO TRIAL
Since then, the two cases have taken different paths toward resolution. Hogan agreed to the plea agreement just short of two years after the traffic stop, and in keeping with the terms of that deal she was sentenced to two years in prison followed by three years of supervised probation. She will need to serve at least 85% of the two years before being eligible for parole.
Hogan, who received 33 days credit for time served in jail before her sentencing, is working as a porter at the Arizona State Prison Complex - Perryville and is scheduled for release December 2017.
Meanwhile, Sallard’s case continues to slowly move forward. On October 19 she will be in court for a hearing to suppress cell phone evidence police uncovered after her arrest.
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* [Part 2 of 2] Check www.CochiseCountyRecord.com on Friday for the second half of the report which focuses on Maria Sallard’s case.
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Contact reporter Terri Jo Neff at 520-508-3660 and cjw_media@yahoo.com
