State v. McClarity

• Decision Date: 22 July 1976
• Docket Number: CA-CR,No. 1,1
• Citation: 557 P.2d 170,27 Ariz.App. 571
• Parties: STATE of Arizona, Appellee, v. Steven P. McCLARITY, Appellant. 1238.
• Court: Arizona Court of Appeals

Page 170

557 P.2d 170

27 Ariz.App. 571

STATE of Arizona, Appellee, v. Steven P. McCLARITY, Appellant.

No. 1 CA-CR 1238.

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

July 22, 1976.

Rehearing Denied Nov. 26, 1976.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, Chief Counsel, Crim. Div., and Shirley H. Frondorf, Asst. Attys. Gen., Phoenix, for appellee.

Richard L. Thompson, Phoenix, for appellant.

OPINION

DONOFRIO, Presiding Judge.

This is an appeal by defendant-appellant, Steven P. McClarity, from a judgment of conviction and prison sentence of one to three years imposed upon him after a revocation of probation.

Pursuant to a plea agreement, on March 29, 1974, appellant pled guilty to 'theft of motor vehicle, open-end' and was granted three years probation. One of the conditions of probation was that appellant be confined to the Maricopa County Jail for a period of six months. Defendant did not appeal this suspended sentence. On March 31, 1975, appellant admitted to the trial court that he violated his probation. On April 7, the court revoked his probation and sentenced him to not less than one nor more than three years in the Arizona State Prison. He has appealed this sentence setting forth two grounds: (1) That the trial court was precluded from sentencing defendant to prison, and (2) that the trial court lacked jurisdiction to impose sentence on a judgment void on its face.

Appellant's plea agreement provided that appellant would receive a sentence consistent with the following terms: 'That the offense be left undesignated for three years and that defendant be sentenced to six months in county jail from 1/8/74 as a condition of sentence.' As previously mentioned, appellant received the six month sentence and was placed on probation for the three years.

The crucial question presented is whether the trial court was precluded from sentencing defendant in the first place because there had been no express determination at the time as to the degree of the offense. In other words, is there such a thing under our law as 'theft of a motor vehicle, open-end' in the sense that the judge by the penalty he metes out determines whether the offense shall be a misdemeanor or a felony, or must the judge first, before determining the penalty, decide whether the taking of the vehicle (in this instance the motorcycle) was with the 'intent to either temporarily or permanently deprive' the owner of such motorcycle. We believe that there must be first a determination of the intent by which the motorcycle was taken before meting out the punishment.

In this case the trial court found appellant guilty of 'theft of a motor vehicle, an openend charge.' The information to which appellant pled charged that appellant 'took from David Ross Spaulding a motorcycle * * * with the intent to permanently or temporarily deprive David Ross Spaulding of such motorcycle, all in violation of A.R.S. § 13--672.'

A.R.S. § 13--672 (1973 Supp.) is divided into four sections. The statute provides:

'A. It shall be unlawful for any person to take from another a motor vehicle or motorcycle with the intent to either temporarily or permanently deprive such other person of such motor vehicle or motorcycle.

'B. A person found guilty of intent to permanently deprive another of his motor vehicle or motor cycle is guilty of a felony.

'C. A person found guilty of intent to temporarily deprive another of his motor vehicle or motorcycle is guilty of a misdemeanor.

'D. A second conviction of a person of intent to temporarily deprive another of his motor vehicle or motorcycle is guilty of a felony.'

First, the State contends that appellant cannot attack the judgment entered after his original guilty plea in an appeal taken from the judgment and sentence in the revocation proceedings. In support of this contention, the State cites a line of cases holding that the probation period does not extend the time for filing an appeal. State v. Osborn, 107 Ariz. 295, 486 P.2d 777 (1971); State v. Ward, 108 Ariz. 288, 496 P.2d 588 (1972); State v. Hughes, 22 Ariz.App. 19, 522 P.2d 780 (1974); State v. Hauersperger, 20 Ariz.App. 224, 511 P.2d 668 (1973); State v. Jackson, 16 Ariz.App. 476, 494 P.2d 376 (1972). This would be true if it were not for the fact that appellant is attacking the prison sentence after revocation and in doing so involves the legality of the previous judgment and sentence, as will be hereinafter discussed.

Appellant's initial contention in this appeal is that the trial court was required to sentence him after probation revocation for a misdemeanor rather than a felony. In support of this argument, he contends that because the trial court made no express finding of whether the offense was a felony or a misdemeanor, any doubt in this connection should be resolved in his favor. State v. Gonzales, 105 Ariz. 434, 466 P.2d 388 (1970). This contention does not go to the validity of the original conviction (judgment) which was never appealed, but rather to the sentence which the court imposed after revoking appellant's probation which is the subject of this appeal. Therefore, we feel this issue is properly before the Court on this appeal.

Because the statutory section itself does not provide any specific penalty for the offense, we must determine whether the crime to which appellant pled guilty and adjudged by the trial court ¹ falls within the general category of a felony, a misdemeanor, or an 'open ended' offense. As will be shown, the offense for which appellant was sentenced can be none of the above and therefore we must reverse appellant's conviction.

It is to be noted that in deciding this issue, we do not intend to expand the scope of appeal from a probation revocation proceeding. In virtually every other case, a probationer will be required to file a petition for post-conviction relief under Rule 32 of the Rules of Criminal Procedure. However, in this case the appeal is from the prison sentence after revocation of probation in which appellant contends that he has never been adjudged guilty of a felony.

Turning to the substance of appellant's appeal, we first consider whether the trial court determined the offense was a felony at the time of the guilty plea.

The trial court made no express determination in the current case as to whether the crime was committed with the intent to permanently or temporarily deprive the owner of his vehicle. The State argues that the trial court which accepted the guilty plea determined sub silentio that the offense was a felony by placing appellant on probation for three years. If this is true, this determination was in violation of the plea agreement which provided that the offense be left Undesignated for three years. To make such a determination without explaining its consequences to appellant and giving appellant an opportunity to withdraw his plea would be a violation of the plea agreement which would require reversal. Rule 17.4(e), Arizona Rules of Criminal Procedure; Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Further in light of the trial court's express finding that the offense was 'open-end,' we cannot say that the trial court made a determination as to whether the offense was a misdemeanor or a felony. Therefore, the court which revoked appellant's probation could not sentence him for an offense previously determined to be a felony.

On the other hand, it is even clearer that the trial court did not intend the offense to be a misdemeanor. Appellant was placed on probation for three years. The maximum jail sentence for a misdemeanor is six months. A.R.S. § 13--1645 (1956). Because the probation period cannot exceed the maximum term of the sentence which could be imposed by law, there is no doubt that the offense for which appellant was originally convicted was not a misdemeanor. Although appellant was not convicted of a felony, there is also No doubt that the trial court did Not intend to convict appellant of a misdemeanor offense. Therefore, appellant was not, as he contends, entitled under the terms of the original conviction to be sentenced for a misdemeanor at the time of his probation revocation.

Finally, we must consider whether the court which revoked appellant's probation could sentence appellant for an 'openended' offense.

In common usage, an 'open-ended' offense is one in which the court has the discretion to sentence a defendant to either a felony or a misdemeanor. For example, see A.R.S. § 13--312 (1973 Supp.). For certain offenses the Legislature has expressly given the judiciary the power to make the determination of whether the offense is a felony or misdemeanor. However, the Legislature has not given the judiciary this power for the crime of theft of a motor vehicle. Rather, the statute provides that if the intent is to '* * * Permanently deprive another of his motor vehicle or motorcycle * * *,' then the defendant is guilty of a felony; if the intent is to '* * * Temporarily deprive another of his motor vehicle or motorcycle * * *,' then the defendant is guilty of a misdemeanor. (Emphasis added) Unlike an 'open-ended' offense, the trial court has no discretion on how to treat the offense once the factual determination has been made. In the current case, the prosecutor the defendant and the trial court sought to bypass this legislative determination by not making a determination at the time of the plea.

The control of the sentencing process is a delicate balance between the Legislature, the judiciary and the executive. In State v. Pakula, 113 Ariz. 122, 547 P.2d 476 (1976), our Supreme Court stated:

'The legislature sets the sentencing limits and distributes the authority to control the sentence, within those limits, in the courts, correctional authority, and the parole board.' 547 P.2d 476 at 479.

See also State O'Donnal, 110 Ariz. 552, 521 P.2d 984 (1974).

It is within the sole power of the Legislature to determine what...