State v. Pakula

• Decision Date: 25 March 1976
• Docket Number: No. 3168--PR,3168--PR
• Citation: 113 Ariz. 122,547 P.2d 476
• Parties: STATE of Arizona, Appellee, v. David Leonard PAKULA, Appellant.
• Court: Arizona Supreme Court

Page 476

547 P.2d 476

113 Ariz. 122

STATE of Arizona, Appellee, v. David Leonard PAKULA, Appellant.

No. 3168--PR.

Supreme Court of Arizona, In Banc.

March 25, 1976.

N. Warner Lee, The Former Atty. Gen., Bruce E. Babbitt, Atty. Gen. by Robert S. Golden, Asst. Atty. Gen., Phoenix, for appellee.

Slutes, Zlaket, Sakrison & Wasley by D. Thompson Slutes, Tucson, for appellant.

HOLOHAN, Justice.

The defendant was charged by information with 11 counts of obtaining money by false pretenses and entered a plea of guilty to all counts. The superior court sentenced the defendant to not less than one nor more than five years imprisonment on Count One, and suspended imposition of sentence on Counts 2 through 11, placing him on probation for three years on each Count, to run consecutively. The net effect being that the defendant was sentenced to a period of imprisonment and a total of 30 years of probation. The defendant filed a timely appeal from the judgment and sentence. The Court of Appeals, Division Two, affirmed the judgment and sentence. State v. Pakula, 23 Ariz.App. 219, 532 P.2d 161 (1975). This Court granted review. The opinion of the Court of Appeals is vacated.

On appeal, defendant claims that the sentence was illegally imposed in that the sentencing court, contrary to the procedure described by 17 A.R.S. Rules of Criminal Procedure, did not disclose to the defendant the reason for excising a portion of the presentence report.

The presentence report was prepared in two documents, Parts I and II. Part I of the report stated that additional information not contained in the report was appended to the file and that additional information not contained in Part I was contained in Part II. ¹ The record discloses that counsel for the defendant was aware that there were additional matters not covered in the report. ² However, counsel for the defendant did not object to this omission at the superior court level or in any fashion suggest dissatisfaction with the procedure. There was no request ever made to examine the material in Part II. We agree that the procedure was not in accord with the provision of Rule 26.6(c) of the Rules of Criminal Procedure, 17 A.R.S. Any error was waived by the failure to object. State v. Magallanes, 110 Ariz. 235, 517 P.2d 505 (1973).

Defendant complains that his sentence is excessive, especially the confinement imposed under Count I. When the sentence is within the statutory limits we will not disturb it in the absence of unusual circumstances amounting to a clear abuse of the sentencing court's discretion. State v. Waldrip,111 Ariz. 516, 533 P.2d 1151 (1975); State v. Villa, 111 Ariz. 371, 530 P.2d 363 (1975); State v. McDonald, 111 Ariz. 202, 526 P.2d 698 (1974). We find no abuse of discretion in the sentence imposed on Count I.

The defendant urges that the consecutive probationary period for the remaining counts is excessive and unreasonable. The more fundamental question is whether the sentence as imposed by the superior court on the remaining ten counts was a legally permissible sentence.

The power of the superior court to suspend a sentence must be found in the statutes of the state. The superior courts of this state have no inherent power to suspend the imposition or execution of sentence in any case. State v. Bigelow, 76 Ariz. 13, 258 P.2d 409 (1953). The authority to suspend imposition of a sentence is found in A.R.S. § 13--1657. It is clear from the statute that the suspension of the sentence may not exceed the maximum term which could have been imposed for the offense. A.R.S. § 13--1657(A)(1). In this case the suspension of sentence on each count did not exceed the maximum allowed for the offense, but appellant argues that the total period of suspension does exceed the maximum term provided for the offense. By ordering consecutive periods of probation the trial court 'stacked' the probationary periods.

There is no express provision by statute or rule which permits the superior court, on multiple counts in the same information, to impose consecutive periods of probation. Under the 1939 Code, ACA 44--2226, and the 1956 Rules of Criminal Procedure, Rule 339, the terms of imprisonment on two or more offenses charged in the same indictment or information would be served concurrently unless the court expressly directed that they be served consecutively. Division One of the Court of Appeals in State v. Cutting, 15 Ariz.App. 311, 488 P.2d 667 (1971) held that the foregoing authority compelled the conclusion that the superior court had no power to impose consecutive terms of probation on a conviction under a multi-count indictment or information. The authority for consecutive sentences on counts within the same information or indictment was limited to instances of imprisonment. The current Rules of Criminal Procedure, Rule 26.13, contain substantially the same provisions as those referred to above.

The issue in this case has not been before us in this posture. In State v. Ortiz, 98 Ariz. 65, 402 P.2d 14 (1965) a sentence by a trial court providing for confinement on some counts followed by a period of probation on the remaining count was modified by this Court, and the suspended sentence was made to run concurrent with the period of confinement. No discussion of the legality of the sentence was presented. In State v. Evans, 109 Ariz. 491, 512 P.2d 1225 (1973) this Court pointed out that the use of confinement as a condition of probation...