State v. Herrera
| Decision Date | 06 December 1978 |
| Docket Number | No. 4057,4057 |
| Citation | 588 P.2d 305,121 Ariz. 12 |
| Parties | STATE of Arizona, Appellee, v. Lorenzo Torres HERRERA, Appellant. |
| Court | Arizona Supreme Court |
John A. LaSota, Jr., Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., R. Wayne Ford, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender, James L. Edgar, Deputy Public Defender, Phoenix, for appellant.
This is an appeal by defendant Lorenzo Torres Herrera from a probation revocation and resentencing for second degree rape, a violation of A.R.S. § 13-611 B. Taking jurisdiction pursuant to A.R.S. § 13-1711, we modify the sentence imposed by the Superior Court and affirm the judgment as modified.
On November 5, 1976, defendant pled guilty to second degree rape as an open-ended offense. The charge evolved from an extra-marital affair that the twenty-two year old defendant was having with a sixteen year old co-worker and was precipitated by defendant's mother discovering the co-worker in defendant's closet. The pre-sentence investigation report prepared by the Adult Probation Office questioned the sixteen year old's alleged "naivete as to the defendant's marital status" as well as her "victim status other than her chronological age." Concluding that defendant was not dangerous but, rather, lacking in judgment and maturity, the report recommended three years probation. On December 15, 1976, defendant was adjudged guilty, given a suspended sentence, and placed on the recommended probationary term.
On August 9, 1977, a Petition to Revoke Probation was filed in the Superior Court of Maricopa County alleging that defendant had violated the conditions of his probation by committing forcible rape on or about June 6, 1977, in violation of A.R.S. § 13-611 A. At the conclusion of a subsequent violation hearing, the court found that defendant had so violated his probation. Defendant soon after pled no contest to the charge of first degree rape, a felony, and on October 27, 1977, was sentenced thereon to a term of not less than thirty years nor more than life in the Arizona State Prison. The court at the same time revoked defendant's probation in the second degree rape judgment, designated the offense a felony, and sentenced him for that crime to another thirty year to life term, to be served concurrently with that imposed for the forcible rape conviction.DP On November 2, 1977 defendant filed notice of appeal in the second degree rape judgment. We address ourselves to the following three issues:
(1) Is Arizona's second degree rape statute, A.R.S. § 13-611 B, violative of the equal protection guarantee of the Fourteenth Amendment to the United States Constitution?
(2) Is appellant's sentence of thirty years to life for the second degree rape conviction excessive, and does it, therefore, warrant reduction pursuant to A.R.S. § 13-1717 B?
(3) Is a maximum life sentence for second degree rape, as provided by A.R.S. § 13-614, proscribed by the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution, because it is grossly disproportionate to the crime for which imposed?
A.R.S. § 13-611 B, Arizona's second degree rape statute, provides:
"Rape in the second degree is an act of sexual intercourse with a female, not the wife of the perpetrator, under the age of eighteen years, under circumstances not amounting to rape in the first degree."
Defendant maintains that this statute denies him equal protection of the law guaranteed by the Fourteenth Amendment to the United States Constitution in that it penalizes males who have had intercourse with minor females, while adult females are not penalized for engaging in intercourse with minor males. The gravamen of defendant's argument is that the statute does not pass constitutional muster, because it subjects males to disparate treatment without a sufficient state interest for so doing.
The state counters that defendant's attempt to attack the constitutionality of the statute under which he was originally convicted on December 15, 1976, is untimely. The state's contention is that defendant's equal protection argument constitutes a challenge of the original 1976 judgment, from which no notice of appeal was filed within twenty days as required by Arizona law. 17 A.R.S., Rules of Criminal Procedure, rule 31.3. 1
We agree with the state. This Court has said, and we now reiterate:
State v. Osborn, 107 Ariz. 295, 295-96, 486 P.2d 777, 777-78 (1971); See also State v. Ingles, 110 Ariz. 295, 518 P.2d 118 (1972); State v. Miller, 110 Ariz. 43, 514 P.2d 1039 (1973); State v. Ward, 108 Ariz. 288, 496 P.2d 588 (1972).
It is, however, within the power of this Court to suspend the twenty day requirement of 17 A.R.S. Rules of Criminal Procedure, rule 31, on motion of a party or on our own initiative in "exceptional circumstances" pursuant to 17 A.R.S. Rules of Criminal Procedure, rule 31.20. In State v. Parra, 27 Ariz.App. 756, 558 P.2d 951 (1976), a case involving a notice of appeal filed eight days late, the Court of Appeals found the existence of exceptional circumstances, opining that its refusal to consider the appeal would result in wasteful trial court proceedings, duplication and serious delay to parties, all in frustration of judicial economy. It so held because, had the court dismissed the appeal and required appellant to apply to the trial court for permission to file a delayed appeal (pursuant to 17 A.R.S. Rules of Criminal Procedure, rule 32), the trial court would have been virtually required to grant permission.
In the instant case, however, the trial court would be precluded from granting a delayed appeal because of rule 32.2 a. (3), which mandates that a petitioner not be granted such a delay based upon any ground "knowingly, voluntarily and intelligently not raised at trial, on appeal, or in any previous collateral proceeding." 2 Rule 32.2.c states further that the court may infer a knowing waiver from petitioner's failure to appeal after being advised by the sentencing judge of the necessity that he do so. Here, the record shows that defendant was informed at the sentencing hearing of December 15, 1976, that he had the right to appeal from the judgment of guilt or the sentence imposed (i. e., three years probation) and that he would be required to do so within twenty days from that date. Defendant indicated that he understood his right to appeal and the twenty day limitation. Additionally, defendant signed the Notice of Right to Appeal and Appeal Procedure, which informed him of the twenty day limitation for filing and included a boldfaced warning that failure to file on time would result in the loss of his right to appeal. Because defendant failed to appeal from the judgment within the requisite twenty days, we may infer a knowing waiver of his right to do so. Defendant, therefore, is not able to demonstrate the "exceptional circumstances" necessary to bring him under the rubric of 17 A.R.S. Rules of Criminal Procedure, rule 31.20. We accordingly hold that defendant is procedurally precluded from attacking the constitutionality of the second degree rape statute on the basis of equal protection.
Defendant next asserts that his sentence of thirty years to life for second degree rape is excessive under the circumstances and ought to be reduced pursuant to A.R.S. § 13-1717 B.
A.R.S. § 13-1717 B empowers this Court to reduce a sentence if it believes that the circumstances of the case warrant a lesser penalty. Because of the broad discretion allowed trial courts, this statutory power is seldom exercised. E. g., State v. O'Neill, 117 Ariz. 343, 572 P.2d 1181 (1978); State v. Malory, 113 Ariz. 480, 557 P.2d 165 (1976). The rationale for this judicial reluctance is that the trial judge has the defendant before him and is, thus, in the best position to evaluate him. State v. Patton, 120 Ariz. 386, 586 P.2d 635 (1978); State v. Smith, 107 Ariz. 218, 484 P.2d 1049 (1971).
This Court will reduce a sentence, however, if it clearly appears that a sentence is too severe, or that the trial judge abused his discretion in determining the penalty. See State v. Ellis, 117 Ariz. 329, 572 P.2d 791 (1977). On this basis, the power vested by § 13-1717 has been exercised occasionally. See, e. g., State v. Waldrip, 111 Ariz. 516, 533 P.2d 1151 (1975); State v....
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