State v. Arthur

• Decision Date: 24 January 1980
• Docket Number: No. 1,CA-CR,1
• Citation: State v. Arthur, 125 Ariz. 153, 608 P.2d 90 (Ariz. App. 1980)
• Parties: STATE of Arizona, Appellee, v. Robert Joseph ARTHUR, Appellant. 4162.
• Court: Arizona Court of Appeals

Page 90

608 P.2d 90

125 Ariz. 153

STATE of Arizona, Appellee, v. Robert Joseph ARTHUR, Appellant.

No. 1 CA-CR 4162.

Court of Appeals of Arizona, Division 1, Department A.

Jan. 24, 1980.

Rehearing Denied Feb. 29, 1980.

Review Denied March 18, 1980.

Robert K. Corbin, Atty. Gen., by William J. Schafer, III, Chief Counsel, Crim. Div., Dennis C. Freeman, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by Garth V. Smith, Deputy Public Defender, Phoenix, for appellant.

OPINION

FROEB, Presiding Judge.

Robert Joseph Arthur was charged by information with second degree burglary (count one) in violation of A.R.S. §§ 13-1501 and 13-1507, and with theft (count two) in violation of A.R.S. §§ 13-1801 and 13-1802. The charges arose from the unauthorized entry of a residence in Phoenix on January 29, 1979, and the use of car keys found within the residence to steal a 1973 Mercedes Benz automobile from the driveway of the residence. Arthur pleaded guilty to the theft count. The terms of the written plea agreement also provided, inter alia, that there would be no agreement as to the length of sentence to be imposed; any sentence imposed would be concurrent with that imposed in a pending forgery case; and that count one (second degree burglary) would be dismissed at the time of sentencing. Following entry of judgment of guilt, appellant was sentenced to a term of five years' imprisonment. A.R.S. §§ 13-701, 13-702, 13-801. He brings this appeal contending that the trial court erred in sentencing him to the presumptive term for a class 3 felony because the crime to which he pleaded guilty was a class 6 felony. We disagree with this contention and affirm the judgment of conviction and sentence.

Under the terms of the Arizona Criminal Code, effective October 1, 1978, the presumptive term of imprisonment for a class 3 felony is five years and the presumptive term for a class 6 felony is one and one-half years. A.R.S. § 13-701(B). The definition of the offense of "theft" is set forth in A.R.S. § 13-1802. Determination of the issue presented herein depends upon the interpretation of subsection C of A.R.S. § 13-1802, which provides, in pertinent part:

C. Theft of property or services with a value of more than one thousand dollars is a class 3 felony. Theft of property or services with a value of more than one hundred dollars but not more than one thousand dollars is a class 4 felony. Theft of any property or services valued at one hundred dollars or less is a class 1 misdemeanor, unless such property is taken from the person of another or is a motor vehicle or a firearm, in which case the theft is a class 6 felony. (emphasis supplied).

Appellant argues that the words: "(U)nless such property is taken from the person of another or is a motor vehicle or a firearm, in which case the theft is a class 6 felony," should be read to mean that all thefts from a person or of a motor vehicle or firearm are class 6 felonies, regardless of the value of the stolen item. We disagree. Initially, we note that the charging documents herein (both the complaint and the information) charged appellant in count two with a class 3 felony and set forth the correct statutory provisions which he allegedly violated. The written plea agreement which he executed likewise contains reference to the charge as a class 3 felony and sets forth the proper term of sentence. The parties do not dispute that the trial court explained that appellant was pleading guilty to a class 3 felony and that the consequences, i. e., the punishment, were explained properly. At sentencing, appellant stated...