State v. Pierce

• Decision Date: 09 March 1972
• Docket Number: No. 2242,2242
• Citation: 494 P.2d 696,108 Ariz. 174
• Parties: The STATE of Arizona, Appellee, v. Phillip Cecil PIERCE, Appellant.
• Court: Arizona Supreme Court

Page 696

494 P.2d 696

108 Ariz. 174

The STATE of Arizona, Appellee, v.Phillip Cecil PIERCE, Appellant.

No. 2242.

Supreme Court of Arizona, In Banc.

March 9, 1972.

Howard A. Kashman, Pima County Public Defender, by Fredric F. Kay and Eleanor Daru Schorr, Deputy Public Defenders, Tucson, for appellant.

Gary K. Nelson, Atty. Gen., by Jerry C. Schmidt, Asst. Atty. Gen., and Albert M. Coury, Former Asst. Atty. Gen., Phoenix, for appellee.

HAYS, Chief Justice.

The defendant, Phillip Cecil Pierce, was charged with one count of child molesting and one count of rape.Prior to trial, and pursuant to a plea bargain, the defendant plead guilty to rape in the second degree, the two initial charges against him being dismissed.The record clearly reflects that the defendant plead guilty because he felt that there was a high probability that if he went to trial, he would be found guilty.The defendant therefore elected to take advantage of the plea bargain.This procedure was specifically approved in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162(1970).

The defendant was sentenced to imprisonment at the Arizona State Prison for not less than five years nor more than ten years.Prior to the time this sentence was handed down, the trial court rejected a motion by defense counsel to inspect the presentence report.The defendant also presented to the trial court a motion for an order to include the presentence report as part of the record on appeal.The motion stated that the report was necessary in that the appeal would be based on the grounds that the sentence imposed was excessive.This motion was also denied.The defendant brings this appeal contending that the trial court erred in not granting his request to examine the presentence report for purposes of this appeal and in rejecting his motion to have the report made a part of the record on appeal.

It has been the holding of this court in the past that the decision as to whether to disclose the contents of the presentence report is in the discretion of the trial judge, State v. Nelson, 104 Ariz. 52, 448 P.2d 402(1968).We are well aware that this question has been the subject of much discussion in legal circles and that there are strong arguments for the various positions espoused.The American Bar Association's Standards for Criminal Justice Sentencing Alternatives and Procedures recommends as follows:

'4.4 Presentence report: disclosure; parties.

(a) Fundamental fairness to the defendant requires that the substance of all derogatory information which adversely affects his interests and which has not otherwise been disclosed in open court should be called to the attention of the defendant, his attorney, and others who are acting on his behalf.

(b) This principle should be implemented by requiring that the sentencing court permit the defendant's attorney, or the defendant himself if he has no attorney, to inspect the report.The prosecution should also be shown the report if it is shown to the defense.In extraordinary cases, the court should be permitted to except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously distrupt a...