State v. Salazar

• Decision Date: 23 March 1966
• Docket Number: CA-CR,No. 2,2
• Citation: 3 Ariz.App. 114,412 P.2d 289
• Parties: The STATE of Arizona, Appellee, v. Charles Alvarez SALAZAR, Appellant. 43.
• Court: Arizona Court of Appeals

Page 289

412 P.2d 289

3 Ariz.App. 114

The STATE of Arizona, Appellee, v. Charles Alvarez SALAZAR, Appellant.

No. 2 CA-CR 43.

Court of Appeals of Arizona.

March 23, 1966.

Darrell F. Smith, Atty. Gen., Norman E. Green, Pima County Atty., Carl Waag, Deputy County Atty., Pima County, Tucson, for appellee.

Arthur W. Vance, Jr., Tucson, for appellant.

KRUCKER, Chief Judge.

Appellant, Charles Alvarez Salazar, appeals from his conviction and sentence to imprisonment for a term of not less than one and one-half years, nor more than two years.

The record discloses that an information was filed on April 29, 1965, charging appellant with violation of A.R.S. § 13--531, indecent exposure, with a prior conviction, and counsel was appointed to defend. The appellant was arraigned on May 4, 1965, entered a plea of not guilty to the charge, and denied the prior conviction. On June 1, 1965, appellant filed a motion to suppress the evidence of any prior conviction, as set out in the information. The motion was heard and denied with leave to raise the question again at the trial. Thereafter, the matter was tried to the court, the appellant having waived trial by jury. The motion to suppress was renewed but again denied and the prosecution was permitted to present evidence regarding the prior conviction. Appellant was found guilty of the crime charged and was sentenced in accordance with the mandates of A.R.S. § 13--1649, requiring increased punishment for subsequent offenses committed within the state. From that judgment and sentence appellant appeals.

Two issues are raised: (1) that the trial court erred in denying appellant's motion to suppress evidence of the prior conviction on grounds that he had been denied the assistance of counsel during the prior proceedings; and (2) that the trial court erred in admitting a certified copy of the record of the prior conviction signed by the City Magistrate before whom the appellant was convicted and sentenced because it failed to comply with Rule 44, Arizona Rules of Civil Procedure, 16 A.R.S.

What appears to be the central issue in this appeal under the first assignment of error has been given only scant attention in the briefs submitted. Appellant's contention that the trial court erred in denying his motion to suppress evidence of the prior conviction constitutes an attempt to collaterally attack the validity of the prior conviction and sentence. Such contention is based on the alleged ground that the appellant was not accorded the right to counsel during the prior conviction proceedings. We have reviewed the authorities and conclude that a determination of appellant's right to counsel during the prior conviction proceedings is not required since we hold that the appellant cannot now, long after the opportunity to appeal the prior conviction has elapsed, collaterally attack its validity. It is our opinion that the state legislature, in adopting A.R.S. § 13--1649, never intended to provide a defendant with the opportunity to retry his prior conviction when brought to light during sentencing upon a subsequent conviction. Nor do we think that constitutional mandates of due process require such review.

Appellant relies heavily on the doctrine of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), but we do not believe that case is controlling in this matter. We conclude, however, that the case of State v. Mendez, a.k.a. Campillo, 2 Ariz.App. 77, 406 P.2d 427 (1965), is particularly in point to a determination of this appeal, since the facts of that case are quite similar to those before this Court.

In the Mendez case, supra, the defendant was charged with petty theft with a prior conviction. Upon a verdict of guilty, the jury reconvened to hear evidence regarding the prior conviction under Rule 180, Arizona Rules of Criminal Procedure, 17 A.R.S. From the imposition of an increased sentence under A.R.S. § 13--1649, the defendant appealed asserting that the prior conviction was invalid since she was not represented by counsel during the prior conviction proceedings. The Arizona Court of Appeals, Division One, stated in particularly appropriate language in the Mendez case, supra, at 406 P.2d 430, as determinative of this issue, that:

'The final question raised by the defendant concerns the validity of the prior misdemeanor conviction which, when established, raises the petty theft conviction from a misdemeanor to a felony. Defendant asserts that under the provisions of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1964), since the defendant was not represented by counsel at the time she was convicted of the prior offense of petty theft, that prior conviction may not be used in the instant case to raise the crime from a misdemeanor to a felony. Defendant points out the case of United States ex rel. Durocher v. LaVallee, 2 Cir., 330 F.2d 303, cert. denied, 377 U.S. 998, 84 S.Ct. 1921, 12 L.Ed.2d 1048 (1964), as support for this position.

'In that case, the court was concerned with a direct attack by habeas corpus upon the validity of the prior felony convictions allegedly made contrary to the rule set down in Gideon v. Wainwright. We believe and therefore hold that the rule in Gideon v. Wainwright does not apply hereto what amounts to a collateral attack upon a prior misdemeanor conviction. There was nothing before the court to indicate that defendant's prior conviction had been set aside or invalidated by appeal or otherwise. The prior conviction must be considered valid, until successfully attacked through recognized judicial procedure.'

The second assignment of error concerns the admission of a certified copy of the prior conviction signed by the City Magistrate who convicted and committed appellant under the prior offense. Appellant contends that the procedure for presenting evidence of a prior conviction by document is set out in Rule 44, Arizona Rules of Civil Procedure, 16 A.R.S., and that this rule precludes the admission of this report since it was not signed by the person having custody of the official records, nor was it accompanied by a certificate that such person had custody.

In proving a prior conviction there are basically two requirements: (a) positive identification of the accused as the same person previously convicted; and (b) proper proof of the prior conviction itself. State v. Cobb, 2 Ariz.App. 71, 406 P.2d 421 (1965).

In the case before us, a police officer testified he was present in open court when the appellant pleaded guilty to the prior offense and identified the appellant as that same person. This satisfies requirement (a) above; however, this question has not been raised in this appeal.

The prosecution then offered a certified copy of the record of the prior proceedings in the police court, signed by the magistrate, showing, among other things, the plea of guilty and the judgment of guilty on May 18, 1964. This document was sealed with a 'Court Seal, City Court of the City of Tucson, County of Pima, State of Arizona' and was admitted in evidence over appellant's objection. The trial court held that this evidence constituted sufficient proof of the prior conviction and sentenced appellant in accordance with A.R.S. § 13--1649.

Appellant contends that the certified copy of the record of the prior conviction was erroneously admitted. Rule 44(g), Arizona Rules of Civil Procedure, 16 A.R.S., provides in part:

'1. An official record or an entry therein, when admissible for any purpose, May be evidenced by an official publication thereof Or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has the custody.

'2. If the office in which the record is kept is within the United States * * * the certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, Or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office.' (Emphasis supplied.)

The public documents exception to the hearsay rule is of common law origin. The rule allows the admission in evidence of copies of official records or acts of public officers based on the principle of necessity and expediency when there is sufficient circumstantial probability of trustworthiness. V Wigmore, Evidence §§ 1631, 1632 (3d ed. 1940). Rule 44(g), while it condifies a portion of this common law, is permissive and not exclusive of other methods of authentication. Rule 44(i), Arizona Rules of Civil Procedure, 16 A.R.S., provides:

'This Rule does not prevent the proof of official records or of entry or lack of entry therein by any method authorized by any applicable statute or by the rules of evidence at common law.'

However, if Rule 44(g) is satisfied there would be no error so we will direct our inquiry first to determining whether the certificate before us is in compliance with Rule 44(g).

A City Magistrate is a public official having official duties. Tucson City Charter, Chapter V, § 2, Chapter XII, § 3;...