State v. Fierro

• Decision Date: 14 July 1966
• Docket Number: No. 1587,1587
• Citation: 416 P.2d 551,101 Ariz. 118
• Parties: The STATE of Arizona, Appellee, v. Robert FIERRO, Appellant.
• Court: Arizona Supreme Court

Page 551

416 P.2d 551

101 Ariz. 118

The STATE of Arizona, Appellee, v. Robert FIERRO, Appellant.

No. 1587.

Supreme Court of Arizona, In Banc.

July 14, 1966.

Darrell F. Smith, Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., Phoenix, Jack I. Redhair, Deputy County Atty., Tucson, for appellee.

Octavio G. Marquez, Michael J. Brown, Tucson, for appellant.

McFARLAND, Justice:

Robert A. Fierro, hereinafter designated defendant, was convicted and sentenced to serve not less than ten nor more than twelve years in the Arizona state prison for the crime of robbery, in violation of A.R.S. §§ 13--641 and 13--642. We granted defendant's application to file a delayed appeal pursuant to Rule 16(a), as amended, Rules of the Supreme Court, 17 A.R.S.

The statement of facts on conviction, submitted by the Pima County Attorney and approved by the Superior Court of Pima County, set forth the following facts:

'On the 19th day of February, 1964 an Information was filed in the Superior Court of the State of Arizona in and for the County of Pima charging Robert Fierro with the crime of Robbery committed on the 11th day of January, 1964.

'On the 14th day of April, 1964 defendant entered a plea of not guilty. Trial was set, and on the 2nd day of June, 1964 defendant changed his plea to guilty. On the 17th day of June, 1964 in the Superior Court, the Honorable Lee Garrett presiding, defendant was sentenced to a term of 10 to 12 years in the Arizona State Prison.

'The evidence showed that: The defendant, with an accomplice, drove up to the Circle K Foodstore at 6485 East Golf Links Rd., Tucson, Arizona, and entering the store pulled a revolver forcing manager Mike Lawless to give up money from the cash register.'

The defendant, seventeen years of age at the time of commission of the crime, raises two assignments of error. He first contends the trial court erroneously used information furnished by the Pima County Probation Office pertaining to defendant's juvenile record in determining the sentence to be imposed. In the record on appeal is a 'Pre Sentence Report' compiled by the Pima County Probation Office which includes as a part thereof a copy of defendant's record from the Tucson Police Department listing some twenty-one instances in the period beginning September 21, 1957 through January 13, 1964 in which that department had some contact with defendant.

Defendant contends A.R.S. § 8--228, subsec. B prohibits the use of such information by a trial court in determining a sentence.

'A.R.S. § 8--228. Effect of adjudication; use as evidence

'B. The disposition of a child or of evidence given in the juvenile court shall not be admissible as evidence against the child in any proceeding in another court, nor shall such disposition or evidence disqualify a child in a civil service application, examination or appointment.'

We do not have before us a transcript of proceedings at the time of sentencing. We have no information as to what portion of the Tucson Police Department record in fact constitutes a juvenile court record in order to fall within the purview of the statute. Assuming, arguendo, some portion of the record does fall within its bounds and the trial court referred to the report, the issue thus presented is whether a defendant's record of juvenile offenses may be used by the trial court in determination of the sentence to be imposed.

The matter herein presented was before the Supreme Court of Pennsylvania in Commonwealth ex rel. Hendrickson v. Myers, 393 Pa. 224, 144 A.2d 367, where the court in interpreting a statutory provision almost identical to A.R.S. § 8--228, subsec. B stated:

'* * * the sentence imposed in 1946 was illegal and void because the sentencing Judge was informed of and considered the appellant's Juvenile Court record in imposing sentence. Appellant had been found delinquent when he was approximately 17 years of age as the result of a burglary then committed by him. Appellant contends that the use of said Juvenile Court record in the consideration of the aforesaid sentences was in violation of § 19 of the Act of June 2, 1933, P.L.1433, 11 P.S. § 261. Section 19 of that Act provides as follows: * * *'

"* * * The disposition of a child or any evidence given in a juvenile court shall not be admissible As evidence against the child in any case or proceeding in any other court.'

'Generally speaking, there are several cogent reasons why juvenile records and evidence given in juvenile proceedings should not be used as evidence against a child in any case or proceeding in any other Court. Juvenile Court proceedings are normally informal, and many of the important constitutional and statutory guarantees afforded a defendant in a criminal trial do not apply to a juvenile in a hearing before a Juvenile Court. Holmes' Appeal, 379 Pa. 599, 109 A.2d 523. For these reasons, it would be unjust and illegal to allow the introduction of juvenile records or evidence given in juvenile cases to be later introduced as competent evidence in criminal cases or proceedings in any other Court, in the same manner as criminal convictions or evidence taken in criminal proceedings may in certain instances be competent evidence in other criminal proceedings.

'The statutory prohibition, however, was not transgressed by the lower Court. Section 19 does not prohibit the use of the 'disposition of a child or any evidence given in a juvenile court' for Any purpose; on the contrary, it bans the use of said order or evidence only when used 'as Evidence against the child in any case or proceeding in any other court'. Although the Legislature failed to define the word 'evidence' in the statute, it is obvious that the Legislature used and intended to use 'evidence' in its generally accepted meaning--testimony and matters actually presented at the trial.

'The Juvenile Court record was not introduced or presented as evidence in the trial. Moreover, the Juvenile Court record was not considered, even after the trial, to determine a factual issue, i.e., his guilt or innocence of the crimes with which he was charged; on the contrary, the juvenile record was taken into consideration by the trial Judge After the appellant had pleaded guilty and then only for the purpose of imposing a fair, proper and just sentence.

'In Commonwealth ex rel. Czarnecki v. Stitzel, 179 Pa.Super. 80, at pages 82--83, 115 A.2d 805, at page 806, the Court said:

"A judge faces a grave responsibility in sentencing boys in their middle and late teens. On the other hand every effort should be made to give them an opportunity to reform. On the other hand the court has a responsibility to the law abiding citizens to protect them from young desperadoes who frequently are involved in the most violent and vicious of crimes. A sentencing judge, and others dealing with the sentence, cannot with justice to the boy or the public ignore completely the boy's conduct during the time he was within the age of the juvenile court law.'

'To deprive the Courts of the right to be informed of and to consider the history and background of the person subject to sentence may result in sentences which are unjust and unfair to both society and defendants.

'The Judgment of the Superior Court is affirmed.' 144 A.2d at 369 (Emphasis supplied)

The record introduced in the instant case was not used as evidence in a trial, nor was it considered to determine any factual issue, but was presumably taken into consideration by the trial court after a plea of guilty, and then used in determination of the sentence to be imposed.

The matters to be considered and the theory behind the sentencing of criminal defendants were well...