dissenting:
I disagree with the majority that State v. Anderson, 147 Ariz. 346, 710 P.2d 456 (1985) applies in this case. Anderson involved a guilty plea; appellant here was dealing for an Alford plea (North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)). There is a world of difference. The Alford guilty plea is only an acknowledgment of the strength of the State’s case by the defendant. In it he makes the best that he can out of a tough situation. The appellant fully understood *202that problem. He claimed that someone else had done the crimes of kidnapping and sexual assault with a gun. His attorney was able to strike an Alford plea agreement with the county prosecutor which dismissed the two counts of sexual assault, dismissed the allegation of dangerousness and agreed to the probation disposition of appellant.
It is true as counsel and the majority indicate that appellant waggled considerably before and after entering his Alford plea. However, the record shows that the court bent over backwards to accommodate the appellant and to assist him in understanding the proceedings. At the end of the change of plea hearing, following a conversation between appellant and his advisory counsel, the following occurred:
MR. ADAMS [appellant’s advisory counsel]: Your honor, if I might try to clarify matters a little bit, I have discussed with Mr. Mott many times and he feels that he is being falsely accused, that the facts as stated by the State are not the true facts, but he also knows that if he were to go to trial they would present this evidence, that there is a likelihood of conviction, that the original offense as charged is a dangerous offense, that he would go to prison if he were convicted.
Because the State has offered to drop the allegation of dangerousness and stipulate to probation, it is my understanding that Mr. Mott wants to enter the guilty plea with the full knowledge that he is not admitting to having done this, but he is only pleading guilty to take advantage of this plea agreement. That’s what I have advised him and I am certain that he understands it that way.
THE COURT: Do you understand it that way, Mr. Mott?
THE DEFENDANT [Mr. Mott]: Yes.
THE COURT: And now after all the discussion that has been made, and knowing that the State has said they would prove and your feelings about the matter and the fact of the totality, the whole plea agreement of dismissal of two causes, and the stipulated probation and the fact that you would not be having to have a trial, the risk that you indicated yourself was involved there in a jury possibly finding you guilty of all three counts, because of all of that, you feel that it is wise to plead guilty and that is why you are still pleading guilty, is that correct?
THE DEFENDANT: Yes, I am doing that under Alford, yes.
Thus, I disagree with appellant and the majority opinion that his plea was not voluntarily and intelligently made. The record supports the wisdom of his plea. The state had a very strong case against him and he made a very good bargain, getting probation in the process. His criminal record certainly did not justify probation in my opinion.
Regarding appellant’s comments: “I still intend to clear myself, I am not guilty....” and “[I]f I have any new evidence that they might reopen the case or dismiss it or look into it or something, right?” and “I will pursue to prove my innocence ... until I am able to clear myself ...” and others, there is no question that appellant was waggling between accepting the plea agreement and rejecting it. He properly characterized the whole transaction as a “deal”. The record is clear that he pled guilty pursuant to Alford because of the strength of the state’s case against him and in order to receive probation. The record shows us that he got exactly what he was bargaining for: probation.
Appellant also contends that defense attorney misinformed appellant concerning his ability to later disprove the charges based on Rule 32, Arizona Rules of Criminal Procedure. I disagree. I have reviewed the record and it shows that while appellant pled guilty (Alford) he still wanted the option of coming back to the court, pursuant to Rule 32, Arizona Rules of Criminal Procedure, in the event he discovered substantial evidence that he was not in fact guilty of the crime as charged. His counsel advised him that Rule 32 was available for that purpose. The trial court attempted to throw cold water on the whole idea by sticking to appellant’s waiver of constitutional rights and obtaining a waiver *203on the record. Indeed, Rule 32.1, id. does provide:
Subject to the limitations of Rule 32.2, any person who has been convicted of, or sentenced for, a criminal offense may, without payment of any fee, institute a proceeding to secure appropriate relief on the ground or grounds that:
* * * * * *
e. Newly-discovered material facts exist, which the court, after considering:
(1) the probability that such facts, if introduced would have changed the verdict, finding or sentence;
(2) The diligence which would have been required to discover and produce the evidence at trial;
(3) The promptness with which the petitioner has commenced a proceeding after discovery of such facts,
may require that the conviction or sentence be vacated;
Rule 32.2(b) expressly provides an exception to the defense of preclusion involving a Rule 32.1(e) matter. Therefore, the advice given appellant by his counsel was correct and he was not misinformed.
I would affirm.