State v. Fuentes

• Decision Date: 27 April 1976
• Docket Number: No. 1,CA-CR,1
• Citation: State v. Fuentes, 26 Ariz.App. 444, 549 P.2d 224 (Ariz. App. 1976)
• Parties: STATE of Arizona, Appellee, v. Ismael FUENTES, Appellant. 1159.
• Court: Arizona Court of Appeals

Page 224

549 P.2d 224

26 Ariz.App. 444

STATE of Arizona, Appellee, v. Ismael FUENTES, Appellant.

No. 1 CA-CR 1159.

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

April 27, 1976.

Rehearing Denied May 25, 1976.

Review Granted June 15, 1976.

Bruce E. Babbitt, Atty. Gen., by Shirley H. Frondorf, Asst. Atty. Gen., and Raymond Aaron Kizer, Certified Third Year Law Student Under Rule 28(e), 17A A.R.S.,[26 Ariz.App. 446]

Rules of the Supreme Court, Phoenix, for appellee.

Martin, Feldhacker & Friedl by William J. Friedl, Phoenix, for appellant.

OPINION

HAIRE, Chief Judge, Division 1.

Appellant-defendant presents three questions for review on this appeal following the revocation of his probation and the subsequent imposition of a maximum prison sentence. Defendant's first question raises the issue of whether a defendant may, in an appeal following the revocation of his probation, assert the invalidity of the original conviction which resulted in the imposition of probation. The second question raises the issue of whether the sentence imposed upon defendant after the revocation of probation constitutes a breach by the state of its plea agreement with the defendant. The third question is whether defendant was denied equal protection of the law because his presentence incarceration in lieu of bond plus the maximum prison sentence given exceeded the statutory maximum prison sentence. The facts are as follows.

Pursuant to a plea agreement, defendant pled guilty on February 15, 1974, to a charge of 'Possession of a Narcotic Drug'. On March 25, 1974, imposition of sentence was suspended, and defendant was placed on probation for a period of five years. A term and condition of defendant's probation was that he be incarcerated in the Maricopa County Jail for a period of six months, to date from January 11, 1974, which was the date of his arrest on the charge involved. On June 7, 1974, defendant was released from his probationary jail term to participate in a narcotics rehabilitation program.

On November 7, 1974, defendant was again arrested, this time on a burglary charge, to which he eventually also entered a plea of guilty. Based upon the burglary conviction, the trial judge revoked defendant's probation, and on March 3, 1975, sentenced him on the original narcotics possession charge to eight to ten years imprisonment in the Arizona State Prison, with the sentence to run from November 7, 1974, the date of his arrest on the burglary charge.

MAY DEFENDANT NOW APPEAL FROM HIS ORIGINAL CONVICTION

Defendant's notice of appeal was filed on March 3, 1975, considerably more than 20 days after the entry of the judgment of guilt on the original narcotics possession charge and the placing of defendant on probation, which occurred on March 25, 1974. The courts of this state have uniformly held that failure to appeal from the original judgment and sentence of probation within the 20 day time limit prescribed by Rule 31.3, Rules of Criminal Procedure, forecloses a subsequent appeal from that original judgment and sentence following any subsequent revocation of probation. State v. Ingles, 110 Ariz. 295, 518 P.2d 118 (1974); State v. Miller, 110 Ariz. 43, 514 P.2d 1039 (1973); State v. Hughes, 22 Ariz.App. 19, 522 P.2d 780 (1974). From the language of Rule 31.3, which allows a defendant to file his notice of appeal within 20 days after 'the entry of judgment And sentence' (emphasis added), defendant argues that in his case the imposition of sentence was suspended at the time he was placed on probation on March 25, 1974, and not pronounced until after his probation was revoked on March 3, 1975. He thus concludes that the appeal time on the original determination of guilt remained open so as to make the filing of his later notice of appeal timely. In making this argument, defendant ignores the fact that the term 'sentence' as used in the Rules of Criminal Procedure, is defined in Rule 26.1 b as meaning '. . . the pronouncement by the court of the penalty imposed upon the defendant after a judgment of guilty', and, that the comment to that definition expressly states that it 'does include probation even though in most cases, under Ariz.Rev.Stat.Ann. § 13--1657(A) (Supp.1972), imposition of sentence must be suspended in order to place a person on probation.' It is thus clear that for purposes of appeal, 'sentence' was imposed upon defendant at the time he was placed upon probation, and that defendant may not at this late date appeal from the original determination of his guilt.

THE ALLEGED BREACH BY THE STATE OF ITS PLEA AGREEMENT WITH DEFENDANT

Under the plea agreement presented to the trial court at the time defendant pled guilty, the state agreed to dismiss a second count charging felony possession of marijuana, and not to allege prior convictions. The state also stipulated to a maximum prison sentence of two to three years in the Arizona State Prison, with an understanding that the defendant, in lieu of the prison sentence, would request a drug program-connected term of probation. As previously indicated, after acceptance of defendant's guilty plea made pursuant to the plea agreement, he was placed on probation. His contention that the plea agreement was violated is based upon the fact that after his probation was revoked, he received a sentence of eight to ten years in the Arizona State Prison, thereby exceeding the originally stipulated two to three year term.

We recognize that under Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the state is bound by plea agreements which induce a plea of guilty. This principle also finds recognition in the provisions of Rule 17.4 e, Rules of Criminal Procedure, which specifically requires that the defendant be given an opportunity to withdraw his plea if the trial judge rejects the plea agreement or any of its provisions. With these principles in mind, we have reviewed the record, and there is nothing to indicate that the sentencing stipulation contained in the plea agreement was to apply to any postrevocation sentencing. This conclusion is further supported by the fact that at the time defendant was placed on probation, the trial court specifically advised the defendant that if he violated the terms of his probation he could be sentenced 'in accordance with the law', that is, to a term of up to ten years as outlined in the original plea agreement signed by the defendant. In addition, we note that defendant made no reference to the originally stipulated sentence at the time his probation was revoked and the eight to ten year sentence imposed. In summary, we find no indication, nor even any contention, in the record before the trial court that the plea agreement was breached. We next consider the third question raised by appellant.

DEFENDANT'S CONTENTION CONCERNING THE STATUTORY MAXIMUM SENTENCE

As previously stated, defendant asserts that he was denied equal protection under the law because his presentence incarceration in lieu of bond plus the ten year prison sentence given after revocation, exceeded the statutory maximum prison sentence. Looking at the facts, it is true that on the narcotics charge here involved defendant was subjected to presentence incarceration in lieu of bond for a period of 73 days, from January 11, 1974, to March 25, 1974. Under A.R.S. § 36--1002A, the maximum term of imprisonment in the Arizona State Prison which could have been imposed upon defendant was ten years, and after revocation he was sentenced to that maximum term in prison. In State v. Sutton, 21 Ariz.App. 550, 521 P.2d 1008 (1974), we held that where the defendant was given the maximum statutory sentence and was not given credit for presentence time in jail due to his failure to make bond, there was a denial of equal protection. From the foregoing it might appear that defendant's equal protection argument is meritorious. However, there is an additional factor present which precludes an automatic application of Sutton to the facts of this case. Here, although defendant did not receive credit for his original presentence incarceration against the prison term imposed after his probation revocation, he did receive credit for his 73 day presentence incarceration against the six month jail term imposed as a condition of probation.

Defendant's equal protection argument has its genesis in Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). As stated in Williams:

'. . . once the State has defined The outer limits of incarceration necessary to satisfy its penological interests and policies, it may not then subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency.' (Emphasis added). 399 U.S. at 241, 90 S.Ct. at 2022.

In determining 'the outer limits of incarceration' established by the Arizona statutes when the imposition of sentence has been suspended and a defendant has been placed on probation, two facets of the statutory punishment scheme must be considered. First, incarceration in the county jail for a period not to exceed one year may be imposed as a term and condition of probation. A.R.S. § 13--1657 A(1). Second, upon revocation after breach of probation, the court may 'pronounce sentence . . . within the longest period for which the defendant might have been sentenced . . ..' A.R.S. § 13--1657 C. Here, the longest period for which defendant might have been sentenced to the Arizona State Prison under § 36--1002 A was ten years. Thus, it is apparent that under the express provisions of the Arizona statutes the 'outer limits of incarceration' is a total of eleven years--a maximum of one year in the county jail imposed as a condition of probation, plus a maximum of ten years in the Arizona State Prison.

In arriving at this conclusion, we have considered the language of A.R.S. § 13--1657 A(1), which limits the court's power to suspend imposition of sentence to...