retired, dissenting:
The majority, by making several assumptions supported by neither the record nor the actual plea agreement in this case, have needlessly complicated a rather simple appeal, and, as a result, have arrived at the erroneous decision that the judgment of conviction and the sentence imposed by the trial judge must be reversed.
The majority states the issue on appeal as being “whether a defendant in entitled to withdraw his plea of guilty when he is sentenced to punishment for a felony offense despite a plea agreement which provides for sentencing as an undesignated offense pursuant to Ariz.Rev.Stat. (A.R.S.) § 13-702(H).” (Emphasis added.) Simply put, the majority’s statement of the issue completely misstates the contents of the plea agreement in this case. If the plea agreement had provided for sentencing “as an ‘undesignated’ offense,” I would not be writing this dissent, since it clearly would have been erroneous for the trial judge to violate such a provision by sentencing the defendant for a designated offense. Rather, the actual language of the plea agreement merely provides that the defendant will plead guilty to “Possession of Marijuana, F-6 (open)____”6
This provision merely relates to defendant’s status at the time of conviction and until sentencing. In accordance with the plea agreement, the conviction for the class 6 felony was “open”, and defendant was eligible for sentencing for an “open” offense pursuant to A.R.S. § 13-702(H). Such an “open” status does not automatically equate to a requirement for “undesignated” status after sentence is imposed. Rather, by the terms of the statute, status after sentence is imposed is left to the discretion of the sentencing judge.
Under A.R.S. § 13-702(H), the judge is given three options. His initial option is to merely sentence a defendant for a class 6 felony. However, if the sentencing judge is of the opinion that it would be unduly harsh to sentence the defendant for a class 6 felony at that time, two other options become available to the judge. The judge may reduce the conviction to a class 1 misdemeanor and make disposition accordingly, or place the defendant on probation and defer designation of the offense as a felony or misdemeanor until probation is *152terminated. The majority concludes that the provision in the plea agreement which allowed the defendant to plead guilty to an “open” charge thereby making him eligible for the three sentencing options authorized by the statute, somehow also took away the judge’s discretion to choose among those options.
Was there any language in the plea agreement that controls or even indicates that the judge’s sentencing options for the defendant’s “open” class 6 felony conviction were restricted to one and only one, that of “[placing] the defendant on probation ... and [refraining] from designating the offense as a felony or misdemeanor until the probation was terminated”? Contrary to the majority’s statement of the issue, there is no language in the plea agreement that “provides for sentencing as an ‘undesignated’ offense.” In fact, the only language in the plea agreement relating to sentencing definitely indicates that the trial judge’s discretion was not to be so limited. A handwritten insertion relating to sentencing in the plea agreement provides:
“In the court’s discretion, this offense can be designated a class one misdemeanor. If such designation is made, the maximum sentence is 6 months in jail + $2,500 fine + 37% surcharge. If probation is granted, 24 hours of community service work is required. There is a mandatory minimum fine of $750.00.”
The above-quoted provision indicates that the trial judge was to have sentencing discretion, and is inconsistent with the contention that the judge’s sentencing options were to be limited to placing the defendant on probation and refraining from designating the offense as a felony or misdemeanor until probation was terminated.
There are also other provisions of the plea agreement, along with remarks made by a previous judge who presided at the hearing regarding whether the plea agreement should be accepted, that are totally inconsistent with the defendant’s present contention that the plea agreement requires that he be given an “undesignated” status after sentencing. As indicated in the above-quoted statutory language, the only time a judge may “refrain from designating the offense as a felony or misdemeanor” at the time of sentencing is when the defendant is placed on probation. Here, both the provisions of the plea agreement and the remarks of the judge at the plea hearing indicate that it was contemplated that the defendant might, or might not, be placed on probation. The plea agreement states that probation is available, but further provides: “If probation is granted____” (Emphasis added.) Likewise, at the plea hearing, the defendant was told: “If you’re placed on probation____” (Emphasis added.) These provisions of the plea agreement certainly do not support defendant’s position that under the agreement the judge was required to place him on probation.
Without focusing on any specific language of the plea agreement, the majority finds the agreement “ambiguous” and that somehow there was a failure of the parties to have a “meeting of the minds.” I see nothing in the plea agreement that makes it ambiguous, or that even remotely suggests the result reached by the majority. Much is found in the majority opinion concerning the defendant’s alleged “understanding” or “misunderstanding” of the agreement, and perhaps the majority bases its finding of ambiguity upon this alleged misunderstanding rather than upon the provisions of the agreement itself. The simple answer to this approach is that the record contains no reviewable evidence as to precisely what the defendant’s understanding of the plea agreement was at the time he entered into it or at the time of the plea hearing. The defendant has neither testified nor submitted any affidavit. I find it particularly revealing that there is nothing in the record concerning what defendant was told concerning the meaning of the plea agreement by the attorneys representing him at the time the plea agreement was entered into or at the time of the plea hearing. All the record shows is that at a later time, after the trial judge indicated his intention to immediately designate the offense a felony, an attorney who had not previously represented the defendant conferred with him and then *153stated that the defendant’s personal position was that under the plea agreement he was entitled to have the designation deferred.
Defendant was not without a means to establish a record in support of his position if, in fact, his position was supportable. Prior to, or pending this appeal, he could have obtained a hearing through the filing of a motion to vacate the trial court’s judgment pursuant to Rule 24.2 of the Arizona Rules of Criminal Procedure. However, he failed to request such a hearing. In order to obtain relief, defendant would have to show, not only his alleged misunderstanding of the agreement, but also objective evidence that he “justifiably relied” on that alleged misunderstanding. See, State v. Lemieux, 137 Ariz. 143, 669 P.2d 121 (App.1983). Another failure in the record before this court is that there is no evidence, objective or otherwise, to support a finding that, assuming that defendant actually misunderstood the agreement, he justifiably relied on that misunderstanding.7
In conclusion, I reject the majority’s analysis finding the plea agreement ambiguous, as well as the majority’s apparent determination that the record supports a finding that the defendant in fact misunderstood the agreement and that he justifiably relied on that misunderstanding. I would affirm the judgment and sentence imposed by the trial judge, allowing the defendant to utilize the provisions of Rule 32, Ariz. Rules of Crim.Proc., to establish a record which might entitle him to the relief he seeks on a barren record before this court.
Note: Judge LEVI RAY HAIRE, a retired judge of the Court of Appeals, was authorized to participate in this appeal by order of the Chief Justice of the Arizona Supreme Court pursuant to article 6, section 20, of the Constitution of Arizona, and A.R.S. § 38-813.
. In the plea agreement, the state agreed not to allege and prove the defendant’s four prior felony convictions for sentence enhancement purposes. Through this provision and by allowing the defendant to plead to an "open” class 6 felony, the defendant ensured that the prior convictions not only could not be used for sentence enhancement purposes pursuant to A.R.S. § 13-604, but also that the state would not be able to use these prior convictions to defeat defendant’s eligibility for "open" conviction status.
. I decline to characterize the majority’s finding of objective evidence supporting defendant's position "in the statute”.