State v. Rhodes

• Citation: 454 P.2d 993,104 Ariz. 451
• Decision Date: 29 May 1969
• Docket Number: No. 9370--PR,9370--PR
• Parties: STATE of Arizona, Appellee, v. Douglas L. RHODES, Appellant.
• Court: Supreme Court of Arizona

Page 993

454 P.2d 993

104 Ariz. 451

STATE of Arizona, Appellee, v. Douglas L. RHODES, Appellant.

No. 9370--PR.

Supreme Court of Arizona, In Banc.

May 29, 1969.

Gary K. Nelson, Atty. Gen., Darrell F. Smith, Former Atty. Gen., by Carl Waag, Asst. Atty. Gen., for appellee.

Vernon B. Croaff, Public Defender, by Grant Laney, Deputy Public Defender, for appellant.

Douglas L. Rhodes in pro. per.

McFARLAND, Justice:

Douglas Rhodes, hereinafter designated as defendant, was charged with the crime of attempting to obtain money or property by means of a false or bogus check, in violation of § 13--311, A.R.S., as amended. Defendant entered a plea of guilty to the charge, and was sentenced by the court. From this sentence he appealed. The Court of Appeals affirmed the judgment of guilty, set aside the sentence of the Superior Court, and remanded the matter to the Superior Court for imposition of sentence at a future date. 7 Ariz.App. 562, 441 P.2d 709. This Court granted defendant's petition for review. Decision of the Court of Appeals is vacated.

The information alleged that the crime was committed on the 12th of November 1965. Defendant left Arizona in 1966, and went to California, where he committed several similar crimes for which he was there sentenced to serve a term in prison.

Defendant had been charged in Arizona on the 24th of September 1963 for the crime of drawing a check without sufficient funds. He was held to answer on the charge, and was released on bail. He did not appear for trial in the Superior Court. On the 8th of January 1966 he turned himself in to the police department of Fresno, California, and admitted to writing numerous bad checks, at which time he informed the authorities about the forgery charges and offenses in other states.

Defendant had written the county attorney of Maricopa County, making known his availability to stand trial, and on the 25th day of May 1967, after a correspondence between defendant and the State of Arizona, defendant was brought from California by executive order for trial in the State of Arizona, to be returned to the State of California for the completion of his sentence after his trial in Arizona.

Upon his return to Arizona, the new charge was filed, and it was to that charge that he entered a plea of not guilty, and thereafter changed his plea from not guilty to guilty. He was represented by Thomas Thinnes, a deputy public defender. The court found him guilty as charged, and sentenced him to be

'imprisoned in the Arizona State Penitentiary at Florence, Arizona for a period of not less than Three (3) nor more than Five (5) years from this date, said sentence to run concurrently with the sentence the Defendant is serving in the State of California.

'IT IS FURTHER ORDERED that the Defendant be returned to the authorities in the State of California for incarceration in the Men's Correctional Institution, Soledad, California, and that he receive credit on this sentence for all times served in that institution.

'IT IS FURTHER ORDERED directing the Sheriff of Maricopa County to return the Defendant to the proper authorities in the State of California.

'IT IS FURTHER ORDERED granting the motion of the State of Arizona to dismiss Cause No. 52204.'

Defendant appealed from his sentence. Briefs were filed both by the public defender's office and by defendant in propria personam. He first contends that he was denied the right to a speedy trial under Article II, Sec. 24, of the Arizona Constitution, A.R.S., and the Fourteenth Amendment to the United States Constitution.

The question then is whether defendant under the circumstances has been deprived of due process of law, and whether the delay deprived him of the opportunity to prepare for and defend himself at the trial. We have previously passed upon this question, and have held that the right to a speedy trial attaches at the time the accused is held to answer, and that there is no deprivation prior to that stage of the case. State v. Tafoya, 104 Ariz. 424, 454 P.2d 569 (May 14, 1969); State v. Burrell, 102 Ariz. 136, 426 P.2d 633; State v. Tuggle, 101 Ariz. 216, 418 P.2d 372; Palmer v. State, 99 Ariz. 93, 407 P.2d 64; and State v. Maldonado, 92 Ariz. 70, 373 P.2d 583. In State v. Tuggle, supra, we said:

'The rights of an accused to a speedy trial re guaranteed by Article 2, § 24, of the Arizona Constitution ¹ and the 14th

Amendment to the Constitution of the United States of America. The question of denial of the right to a speedy trial resulting from a delay in prosecution was considered by this court in Palmer v. State, 99 Ariz. 93, 407 P.2d 64. In that case, a federal prisoner in Leavenworth, Kansas, petitioned this court for a writ of habeas corpus, asking for dismissal of prosecution on two counts of robbery pending in the Superior Court of Arizona. The petitioner contended, among other things, that he had been deprived of the fundamental right to a speedy trial because of failure of the State of Arizona and the County of Maricopa to prosecute actively or grant a preliminary hearing for eighteen months. We there reaffirmed our holding in State v. Maldonado, 92 Ariz. 70, 373 P.2d 583, cert. denied, 371 U.S. 928, 83 S.Ct. 299, 9 L.Ed.2d 236, that the right to a speedy trial attaches at the time the accused is held to answer, and found no deprivation of this right by the delay in prosecution antecedent to petitioner's being held to answer. As the prosecution was conducted with dispatch in compliance with the applicable rules subsequent to defendant's commitment, Palmer v. State, supra, is controlling in the determination of the question in the instant case and we find no denial of defendant's right to a speedy trial. We held in both Palmer v. State, supra, and State v. Maldonado, supra, that the underlying question is whether a defendant under such circumstances has been deprived of due process of law. The acts complained of must be of such a quality as to necessarily prevent a fair trial. The delay must have deprived defendant of the opportunity to effectively prepare for, or defend himself, at the trial. Defendant pleaded guilty to the charge and there is no showing that the acts complained of deprived the accused of a fair trial. Also, by entering a plea of guilty to the charge defendant thereby waived any question in regard to his right to a speedy trial or due process of law. * * *'

Defendant, by entering his plea of guilty, waived any question in regard to his right 'to a speedy trial or due process of law.'

The next question involves the procedure of the court in the pronouncement of sentence. It is contended in the amicus curiae brief of the public defender's office, in support of the petition for review, that after a verdict or plea of guilty it is the duty of the court to pronounce judgment and sentence 'without unreasonable delay.' Rule 324, Rules of Crim. Proc., Revised, 17 A.R.S., provides:

'If the defendant is acquitted judgment shall be rendered immediately. If the defendant is convicted judgment shall not be rendered until three days after such conviction and only after overruling any motion for a new trial or in arrest of judgment. If the defendant expressly waives his right to move in arrest of judgment and for a new trial, judgment may be rendered immediately.'

The provision which prohibits a judgment from being passed until three days after a conviction is for the purpose of giving the defendant an opportunity to make a showing in mitigation of the sentence. State v. White, 97 Ariz. 196, 398 P.2d 903. The next provision requires that a judgment shall be postponed until after the motions for new trial and arrest of judgment are overruled, unless they are expressly waived, in which case judgment may be rendered immediately.

There is no inference from these provisions that the court may unreasonably delay the passing of sentence. As a matter of fact, a reasonable interpretation of the law is to the contrary. In the case of Pollard v. United States, 352 U.S. 354, 77 S,.ct. 481, 1 L.Ed.2d 393, cited by the public defender's office, the majority of the Supreme Court held that the court might impose sentence after a two-year delay after holding a previous sentence to be void; however, it is stated that the time of sentence was not 'at the will of the judge,' and that any delay must not be 'purposeful or oppressive.' The reason for allowing the sentence to be imposed two years later was that the invalidity of the previous sentence was accidental and was promptly remedied when discovered.

In Hall v. State, Okl.Cr., 306 P.2d 361, where there was a suspension of the imposition of sentence to an uncertain date, the court held:

'* * * It is obvious the trial court in violation of the provisions of the Constitution had placed the defendant on judicial parole. Neither the states nor the Constitution permit such to be done. * * *'

In Grant v. McLeod, Okl.Cr., 325 P.2d 1083, a later case the Oklahoma court stated:

'In the within case the defendant had a record of a previous conviction, so the court was not authorized to impose suspended sentence. 2 O.S.A. §§ 991, 992. The same objective could be attained, or so it seems to have been thought, by permitting the petitioner go to free, and postponing sentence for an indefinite period. There was an attempt to get around the law by doing indirectly what could not be done directly. This delay might be for a year, and if for a year, for any number of years, with the possibility of imposition of sentence summarily at any time at the whim of the then district judge or a remote successor. Thus, unlike where one is sentenced for a definite time and sentence suspended, and where the sentence would expire at a definite future date, the deferred sentence to an indefinite date would ever hang over petitioner's head, with his future life restricted, walled in, and hampered by chance and probability.'

See also McLaughlin v. State, 207 Ind. 484, 192 N.E. 753, 97...