State v. Glasscock
| Decision Date | 31 December 1990 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 168 Ariz. 265,812 P.2d 1083 |
| Parties | STATE of Arizona, Appellee, v. Richard Ray GLASSCOCK, Appellant. 89-1263. |
| Court | Arizona Court of Appeals |
Appellant Richard Ray Glasscock ("defendant") timely appeals from a judgment of conviction of armed robbery, a class 2 dangerous felony, and the sentence imposed.
Defendant was indicted on one count of armed robbery, a class 2 felony. The state filed an allegation of dangerous nature of felony pursuant to A.R.S. § 13-604. Thereafter, the defendant entered into a plea agreement and pled guilty to armed robbery, a class 2 dangerous felony. The agreement set forth the applicable range of sentences for the offense, which was a minimum term of 7 years, a presumptive term of 10.5 years, and a maximum term of 21 years. The agreement provided that the sentence would not exceed 15 years and would be concurrent to any sentence imposed for a probation violation in another case. In addition, the state agreed not to file any charges arising out of a Phoenix police departmental report. The probation department recommended that defendant be sentenced to the presumptive term.
At the change of plea hearing, the court found the plea agreement had been entered into knowingly, voluntarily and intelligently. At sentencing, the court stated that defendant was convicted of armed robbery, a nondangerous, nonrepetitive class 2 felony. The court then asked both counsel if there were any mitigating or aggravating circumstances, and they responded in the negative. Mistakenly thinking the conviction was for a nondangerous class 2 felony, the court then proceeded to sentence defendant to what it believed was a presumptive 7-year term, with 109 days given for presentence incarceration credit. 1
Thereafter, this exchange took place:
So change that in the record, and thank you very much, Pauline. A dangerous, non-repetitive offense.
If it's dangerous, would that be the presumptive? ...
Defense counsel then advised the court that the defendant did not have a long criminal record and that, according to the probation officer, could be rehabilitated. The court then found there were mitigating circumstances sufficiently substantial to call for a lesser term than the presumptive term and sentenced the defendant to a 9-year term of imprisonment, with 109 days given for presentence incarceration credit. The only issue on appeal is whether the court had the legal authority to increase the defendant's sentence to 9 years after it had imposed a sentence of 7 years.
The plea agreement correctly set forth the range of sentences for a dangerous class 2 felony of 7, 10.5 and 21 years, pursuant to A.R.S. § 13-701(C)(1) and A.R.S. § 13-604(G). Under A.R.S. § 13-702(C):
The upper or lower term imposed pursuant to section 13-604 or 13-710 or subsection (A) or (B) of this subsection may be imposed only if the circumstances alleged to be in aggravation or mitigation of the crime are found to be true by the trial judge upon any evidence or information introduced or submitted to the court prior to sentencing or any evidence previously heard by the judge at the trial and factual findings and reasons in support of such findings are set forth on the record at the time of sentencing.
Compliance with this statute by a sentencing court is mandatory. State v. Travis, 150 Ariz. 45, 48, 721 P.2d 1172, 1175 (App.1986); State v. Rodriguez, 126 Ariz. 104, 107, 612 P.2d 1067, 1070 (App.1980).
In the original sentence, the court intended to impose the presumptive term. The court made no findings of mitigating circumstances and yet mistakenly sentenced the defendant to what in actuality was a mitigated term. It is apparent the court had forgotten that the offense was a dangerous class 2 felony with a presumptive term of 10.5 years. After being advised of the error by his clerk, the court reviewed evidence in favor of a mitigated sentence. The court then made findings as required by A.R.S. § 13-702(C) and sentenced the defendant to a mitigated term...
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...and sentence has been ‘orally pronounced in open court and entered on the clerk's minutes.’ ”), quoting State v. Glasscock, 168 Ariz. 265, 267 n. 2, 812 P.2d 1083, 1085 n. 2 (App.1990); State v. Perez, 172 Ariz. 290, 292, 836 P.2d 1000, 1002 (App.1992) (“Judgment is not final until it is or......
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...bench trial, and sentence has been “orally pronounced in open court and entered on the clerk's minutes.” State v. Glasscock, 168 Ariz. 265, 267 n. 2, 812 P.2d 1083, 1085 n. 2 (App.1990) (emphasis omitted); see also Ariz. R.Crim. P. 26.16(a) (“The judgment of conviction and the sentence ther......
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