State v. Linsner
| Decision Date | 02 April 1970 |
| Docket Number | Nos. 1804,1805,s. 1804 |
| Citation | 105 Ariz. 488,467 P.2d 238 |
| Parties | STATE of Arizona, Appellee, v. John Martin LINSNER, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Darrell, F. Smith, Former Atty. Gen., by Carl Waag Phoenix, Asst. Atty. Gen., for plaintiff.
Vernon B. Croaff, Public Defender, by Lou Zussman, deceased, Chief Trial Deputy, Stephen L. Cox, Robert Grygiel, Lewis, Roca, Beauchamp & Linton by John J. Flynn, Phoenix, for defendant.
John Martin Linsner, in pro. per.
These consolidated causes are before this Court on appeal from the judgments and sentences imposed upon pleas of guilty to the crimes of robbery and assault with intent to commit murder.
On February 17, 1967, an information was filed in the Superior Court of Maricopa County charging the defendant, John Martin Linsner, with the crime of robbery, a felony, being Superior Court No. 51075. Defendant was arraigned on February 24, 1967, and entered a plea of not guilty. On March 22, 1967, an information was filed charging the defendant with the crime of assault with intent to commit murder, being Superior Court No. 51416. On March 23, 1967, the defendant withdrew his pleas of not guilty to both charges and entered pleas of guilty. The trial court, Division 2, accepted the pleas of guilty and ordered Superior Court criminal cases numbered 51051, 51040, 51005 and 51414 dismissed at the time of defendant's sentencing.
In Division 3 after probationary violation defendant was sentenced in causes numbered 48146 and 50172 for a period of not less than nine (9) nor more than ten (10) years, said sentences to run concurrently. On April 20, 1967, defendant was sentenced by the trial court in Division 2 for a term of not less than forty (40) nor more than fifty (50) years in the state penitentiary for robbery, the sentence to run consecutive to the sentences in Division 3, and for a term of not less than forty (40) nor more than fifty (50) years for the crime of assault with intent to commit murder, the sentences to run consecutively to the robbery sentence. Simply stated, defendant is serving two (2) concurrent sentences of nine (9) to ten (10) years to be followed by a sentence of forty (40) to fifty (50) years, then to be followed by another sentence of forty (40) to fifty (50) years.
Defendant urges that the trial court greatly abused its discretion in making both sentences of forty (40) to fifty (50) years run consecutively with the two concurrent sentences of nine (9) to ten (10) years, and consecutively with each other.
Defendant contends that the penalties would not have been as severe had it not been for allegedly highly inflammatory and prejudicial publicity by the newspapers, radio and television broadcasts, discussions by courthouse attaches, law enforcement people and other throughout the courthouse in Phoenix up to the time of the pronouncement of the sentences. It is argued that the defendant's sentence was aggravated by pre-trial publicity reflecting defendant was involved in the burglary and 'great escape' from the Juvenile Detention Home in January 1967, and that the charge of assault with intent to commit murder had as its victim a deputy sheriff in the Maricopa County Jail whom defendant stabbed in the throat with a sharpened spoon while in custody. The essence of his argument is that his sentences are excessive and, consequently, constitute cruel and unusual punishment.
A.R.S. § 13--1717 deals with the power of this Court to correct and reduce a sentence upon appeal by a defendant. It provides:
The policy behind the application of this statute was stated in State v. Maberry, 93 Ariz. 306, 309, 380 P.2d 604, 606:
(Citations omitted.)
We have repeatedly held that the imposition of a sentence which is within the statutory limit does not constitute cruel and unusual punishment if the statute prescribing the punishment for such offense is constitutional. State v. Smith, 103 Ariz. 490, 446 P.2d 4; State v. Howland, 103 Ariz. 250, 439 P.2d 821. We have also held that the power to revise and reduce sentences imposed by the trial court should be used with great caution and exercised only when it clearly appears that a sentence is too severe. State v. Valenzuela, 98 Ariz. 189, 403 P.2d 286. And see State v. Smith, supra.
It is apparent that the trial judge sentenced the defendant for a term of years greater than his life expectancy. We do not think this necessarily constitutes an abuse of discretion considering the defendant's past criminal activities, the nature of the offenses here involved, and his consistent antisocial attitudes. c.f. State v. Cuzick, 97 Ariz. 130, 397 P.2d 629.
Defendant urges that his pleas of guilty were involuntary because they were not intelligently made. As stated, defendant had been sentenced to imprisonment in the Arizona State Penitentiary for terms of 9 to 10 years after probation violation. The trial judge, the Honorable Donald Daughton, was aware of this and emphasized the possibility of lengthy sentences by personally interrogating the defendant at the time of his pleas of guilty in this manner:
And:
The court adequately apprised Linsner of the possible sentencing consequences on the robbery charge:
He thoroughly apprised defendant of the possible sentence on a plea of assault with intent to commit murder:
The record of defendant's arraignment on the charges herein establishes that both counsel and the trial judge had advised Linsner of the consequences of his plea. We think the language of the sentencing judge cannot be misunderstood. It conclusively established that Linsner intelligently entered his pleas of guilty to robbery and assault with intent to commit murder. State v. Griswold, 105 Ariz. 1, 457 P.2d 331. Defendant is not an illiterate. His education included one semester of college. It is difficult to imagine how an accused could have been more clearly apprised of the possible consequences of pleas of guilty.
Defendant asserts that his pleas of guilty were otherwise involuntary. Current law on guilty pleas places almost exclusive emphasis upon the need that guilty pleas be in every respect voluntary. The reason for this is clear for A guilty plea differs in purpose and effect from an extra-judicial confession or admission because the plea is itself a conviction and like a jury verdict is conclusive. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473; c.f. State v. Anderson, 96 Ariz. 123, 392 P.2d 784; Cuzick v. State, 4 Ariz.App. 455, 421 P.2d 537.
A defendant must enter a guilty plea freely and voluntarily with understanding of the nature and consequences of the plea. State v. Willard, 102 Ariz. 271, 428 P.2d 423; Machibroda v. United States, supra; Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009. That is, a plea must not be 'induced by promises or threats which deprive it of the character of a voluntary act.' Machibroda v. United States, supra. But since A plea of guilty waives production of all evidence of guilt, State v. Lopez, 99 Ariz. 11, 405 P.2d 892, more is required in the acceptance of such a plea for the court has thereafter nothing to do but give...
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