¶1dissenting.
¶2I respectfully dissent. While our decisions in Duran and Cooper lend support to the majority’s result, I dissent for reasons not mentioned by the majority.
¶3The first of these is that Rule 17.5 of the Arizona Rules of Criminal Procedure provides for withdrawal from a guilty plea only for a “manifest injustice.” The majority believes that this standard is met when a defendant admits guilt while suffering a fatal illness. Underlying this notion is the implication that such a defendant is so much less prescient because of illness that to accept his admission of guilt is a “manifest injustice.”
¶4I cannot see how a lately discovered illness alone reduces culpability nor how a person suffering such an illness is for that reason any less capable of acknowledging guilt. Apart from incompetency, the contrary appears to be the case. The majority hovers on the threshold of the therapeutic approach to criminal law, which makes crime and guilt turn largely on illness, contrary to the criminal law’s fundamental supposition of behavioral freedom, including the freedom to make an intelligent admission of guilt. See, for example, in the contest of Rule 17.5’s “manifest injustice,” C.S. Lewis, The Humanitarian Theory of Punishment (1954):
The Humanitarian theory removes from Punishment the concept of Desert. But the concept of Desert is the only connecting link between punishment and justice. It is only as deserved or undeserved that a sentence can be just or unjust.
¶5Secondly, the majority now tacitly invites defendants to withdraw guilty pleas based on allegations of all sorts of newly discovered, ill-defined illnesses supposedly existing at the time of their pleas. Neither this opinion nor its predecessors sets any guidelines for which illnesses are to count. While withdrawal is now allowed in cases of AIDS, there is no clue as to what other, less debilitating medical conditions are excusing. One could plausibly contend that the line should be drawn exclusively in favor of fatal illness, unknown at the time of a plea, where, according to medical doctors, death is likely to occur in prison, coupled with testimony that the pleading defendant would not have pled guilty if aware of this dire prospect. There is some appeal to such a position, though it is absent from this decision. Its appeal, however, augurs in favor of mitigating punishment, not erasing guilt.
¶6I prefer that the court not enter this house of cards at all. Short of insanity, the existence of an unknown illness, even a fatal one, does not by itself render accept*530anee of a plea a “manifest injustice”. Illness does not by itself reduce guilt or the admission of it. Obviously illness might well prompt mercy at the time of sentencing as Cooper narrowly admits. That question is not before us, but that is the proper stage to consider such a mitigating factor. The court would be better advised to avoid entering the thorny bramble of the therapeutic approach to guilt by adhering instead to plea agreements entered by any defendant who is competent even though ill.