State v. Killian, 1210

• Decision Date: 28 March 1962
• Docket Number: No. 1210,1210
• Citation: 370 P.2d 287,91 Ariz. 140
• Parties: STATE of Arizona, Appellee, v. Victor Ross KILLIAN, Appellant.
• Court: Arizona Supreme Court

Page 287

370 P.2d 287

91 Ariz. 140

STATE of Arizona, Appellee, v. Victor Ross KILLIAN, Appellant.

No. 1210.

Supreme Court of Arizona, In Division.

March 28, 1962.

Robert W. Pickrell, Atty. Gen., Stirley Newell, Asst. Atty. Gen., Charles N. Ronan, County Atty., Phoenix, for appellee.

Tenney & Pearson, Phoenix, for appellant.

DEDDENS, Judge of the Superior Court.

Appellant (hereinafter called defendant) pleaded guilty to the crime of illegal possession of marijuana and was sentenced to seven to ten years in the State Prison, beginning April 17, 1961. He was promptly committed. The sentence was imposed under A.R.S. § 36-1020 (1956) which reads as follows:

'A person violating any provision of this article shall, upon conviction, be punished by a fine not exceeding fifty thousand dollars and imprisonment in the state prison for not more than twenty-five years, but for the first offense the court may, in its discretion, impose a fine not exceeding one thousand dollars, imprisonment in the county jail not exceeding one year, or both.'

In this appeal defendant requests this court to review and modify the sentence in accordance with the provisions of A.R.S. § 13-1717, subd. B (1956) which states:

'Upon an appeal from the judgment or from the sentence on the ground that it is excessive, the court shall have the power to reduce the extent or duration of the punishment imposed, if, in its opinion, the conviction is proper, but the punishment imposed is greater than under the circumstances of the case ought to be inflicted. In such a case, the supreme court shall impose any legal sentence, not more severe than that originally imposed, which in its opinion is proper. Such sentence shall be enforced by the court from which the appeal was taken.'

Defendant contends that this court should consider the sentence de novo and requests that it be reduced to a sentence of not more than one year in the county jail as a misdemeanor, this being the defendant's first conviction. The State contends that sentencing a defendant in a criminal case is within the discretion of the trial court, within the limits of the statute, and no modification can be made by this court unless it finds there was an abuse of discretion.

The law on this subject has been well settled in Arizona and we can do no better than quote from the recent case of State v. Castano, 89 Ariz. 231, 360 P.2d 479, 480, in which this court said:

'Defendant contended that the sentence should be modified by this court under A.R.S. § 13-1717, subsection B, * * *. However, it is a cardinal principle that the penalty upon conviction of a crime is, within the limits of statute, entirely within the sound discretion of the trial judge, and will not be modified unless it clearly appears that the sentence imposed is excessive, resulting in an abuse of discretion. State v. Moody, 67 Ariz. 74, 190 P.2d 920; Chee v. State, 65 Ariz. 147, 176 P.2d 366.

'Where a discretion is vested in the trial judge as to the limits of the sentence, he should consider not only the circumstances of the offense charged but also the moral character and past conduct of the defendant himself in order that he may grade the punishment in accordance with the general character of both the offense and of the party convicted. State v. Fenton, 86 Ariz. 111, 119, 341 P.2d 237; State v. Smith, 66 Ariz. 376, 189 P.2d 205; State v. Levice, 59 Ariz. 472, 130 P.2d 53.'

The sentence of a defendant being within the discretion of the trial court, there is no requirement that a first offender be given a minimum sentence. State v. Castano, supra; State v. Benton, 78 Ariz. 85, 276 P.2d 516 (1954). Likewise the power given this court to revise and reduce sentences imposed by the trial courts should be used with great caution and exercised only when it clearly appears a sentence is too severe. State v. Fenton, 86 Ariz. 111, 120, 341 P.2d 237 (1959).

We must thus inquire into the circumstances of the offense charged, and the moral character and past conduct of the defendant herein, as the same appears from the record of the case, and ascertain whether there may have been an abuse of discretion in imposing a sentence of seven to ten years upon a nineteen year old youth being sentenced for his first offense.

Defendant's mother and father were divorced when he was about three years old and he lived in the custody of his mother until he was about eight. From that time on he lived mostly with his parental grandmother and an aunt, but at times also with his father. He attended about two and a half years of high school in Phoenix and then quit to go to work as a carpenter with his father, a general contractor, to learn a trade and earn his living.

Early in life he developed asthma and hay-fever and, after a spot was discovered on his lungs he spent some months at the Tuberculosis Sanitarium at Tempe. At the age of seventeen he and two other boys blew up a Maricopa County road grader, a car and a pickup truck with dynamite that one of the boys had stolen from the place where he worked. For this offense defendant's father was required to pay approximately $3000 for the damage; defendant worked for his father to pay back this loss. He was placed on probation for one year but later his probation was revoked and he was sent to Fort Grant for three months until he became eighteen.

At eighteen he married and divorced one week later. Subsequently, he married again and likewise divorced again. One child was born of the latter marriage. He has never been in the military service.

On May 31, 1960 a direct information was filed against the defendant charging him and another youth with four counts of contributing to the delinquency of minors. These charges arose out of a trip which the defendant took, together with six juveniles between the ages of fifteen and eighteen years, to Nogales, Sonora, Mexico,...