State v. Fettis
| Decision Date | 28 April 1983 |
| Docket Number | No. 5793-PR,5793-PR |
| Parties | STATE of Arizona, Appellee, v. George Downhour FETTIS, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by William J. Schafer III and Greg A. McCarthy, Asst. Attys. Gen., Phoenix, for appellee.
Frederic J. Dardis, Pima County Public Defender by Lawrence H. Fleischman, Asst. Public Defender, Tucson, for appellant.
The defendant was convicted of child molestation, A.R.S. § 13-1410. He appealed to the Court of Appeals, Division II, which affirmed his conviction in a memorandum decision. State v. Fettis, 2 CA-CR 2596 (filed 19 November 1982). We agree with the decision of the Court of Appeals and affirm the judgment. We accepted the petition for review, taking jurisdiction under A.R.S. § 12-120.24, for the sole purpose of considering the practice of sentencing in absentia.
The defendant was charged with one count of child molestation of his adopted daughter based on an incident that occurred 25 July 1981. The defendant was arraigned in person on 19 September 1981, at which time the trial was set for 17 November 1981. The defendant absconded, and so far as the record indicates, is still at large.
The defendant was tried, convicted, and sentenced in absentia. The Court of Appeals was not asked to consider the question of sentencing in absentia, and in light of previous opinions of this court quite properly refrained from doing so. We raised the question on our own because of what we believe to be an incorrect interpretation of the rules regarding sentencing in absentia. Our rule states:
Rule 26.9 Presence of the defendant; sentencing in absentia
The defendant is entitled to be present at a pre-sentencing hearing and shall be present at sentencing. However, failure of the defendant to appear for sentencing shall not delay the pronouncement and entry of judgment and sentence. The time for filing a notice of appeal shall run from the original entry of judgment and sentence. Rule 26.9, Arizona Rules of Criminal Procedure, 17 A.R.S.
Admittedly, the rule is not clear. It states the defendant "shall be present at sentencing" and then states "failure to appear for sentencing shall not delay the * * * entry of judgment and sentence." We have held that a defendant who voluntarily absents himself from trial may be both tried and sentenced in absentia. State v. Ellerson, 125 Ariz. 249, 252, 609 P.2d 64, 67 (1980); State v. Cook, 115 Ariz. 146, 564 P.2d 97 (App.1977), supplemented 118 Ariz. 154, 575 P.2d 353 (App.1978). We believe the spirit of the rule mandates that the defendant must be present at his sentencing except in extraordinary circumstances not present in the instant case, when the court may sentence in absentia. We would anticipate that these circumstances would be rare indeed. We do not retreat from our position that a defendant who voluntarily absents himself from a trial may be tried, convicted and adjudged guilty in absentia. We do retreat from our previous position of allowing the defendant to be sentenced in absentia, except in extraordinary circumstances. In doing so, our interpretation of Rule 26.9 will be more in harmony with the comment to Rule 26.9 which states:
* * * this rule requires the presence of the defendant at sentencing, no matter what the nature of the sentence to be imposed * * * because of the essential warnings and information required to be given after sentence is pronounced. Rule 26.9, supra.
Also, if the courts refrain from sentencing until the defendant can be present, the defendant will be able to exercise his right to allocution as recommended in the American Bar Association's Standards for Criminal Justice, Standard 18-6.4 which states:
(a) As soon as practicable after the determination of guilt and the examination of any presentence reports (citations omitted), a proceeding should be held at which the sentencing court should * * *
(iii) afford to the defendant...
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