State v. Sutherland, 1
| Decision Date | 14 April 1971 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 483 P.2d 576,14 Ariz.App. 344 |
| Parties | STATE of Arizona, Appellee, v. Ben Herbert SUTHERLAND, Appellant. 257. |
| Court | Arizona Court of Appeals |
Ross P. Lee, Public Defender, Maricopa County, by Anne Kappes, Deputy Public Defender, for appellant.
Gary K. Nelson, Atty. Gen., by Albert M. Coury, Asst. Atty. Gen., for appellee.
Ben Herbert Sutherland, the defendant in the Superior Court, appeals his judgment of guilt and his sentence after a plea of guilty in the Superior Court. This is one of the seemingly never ending appeals following the entry of a plea of guilty or as our Supreme Court expressed the thought in State v. Lycett, 107 Ariz. 46, 481 P.2d 839 (4 March 1971) 'Following McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), a spate of guilty plea cases were filed in this court.'
A complaint was filed in the Justice Court on 14 July 1968 charging the defendant, and another, with the crime of robbery which was allegedly committed on 13 July 1968. A preliminary hearing was held on 19 July 1968. A reporter's transcript of the preliminary hearing was filed in the Superior Court on 8 August 1968.
The reporter's transcript affirmatively discloses that the defendant, at gun point, caused Doris Townsend, a cashier at the downtown store of Penneys in Phoenix, to surrender to the defendant $171 in cash and a check payable to Penneys. The defendant and the other person jointly charged with him in the Justice Court complaint were apprehended within minutes by the police. At the preliminary hearing the defendant was represented by counsel and his co-defendant was represented by separate counsel. Both men were bound over to the Superior Court and on 9 August 1968 an information was filed charging both men with the offense of robbery. Attached to the information was an addendum relating to the defendant setting forth two prior convictions.
The defendant was released on bond and waived the 60-day period. The co-defendant plead to a lesser offense and that matter is not before us.
The matter of the final disposition of the case by the Superior Court was delayed by reason of the fact that the defendant was arrested out of state and subsequently sentenced to the United States Penitentiary at Ft. Leavenworth.
Shortly after the imposition of the federal sentence the defendant was returned to Phoenix where the events now in question took place. The defendant and his counsel, a well-qualified member of the staff of the Office of the Public Defender, consented to the filing of an amended information charging the defendant with grand theft in relation to the same transaction. The addendum as to the prior convictions was not attached to the amended information. The defendant's maximum sentence was thereby reduced from life to a period of not to exceed 10 years. The defendant's counsel advised the court in the defendant's presence relative to the advice which counsel had given to the defendant. Notwithstanding the fact that this portion of the proceedings is part of the subject matter of the appeal, there is no indication that the Deputy Public Defender in any way attempted to lead the trial court into error. After the statement by defense counsel the court questioned the defendant personally and the defendant personally entered his plea of guilty.
On the day fixed for the judgment of guilt and the pronouncement of sentence the defendant again appeared before the court. The defendant's only request was that his sentence for the grand theft be made to run concurrently with his federal sentence. The trial court elected to direct that the sentences be made consecutive. After the sentence was pronounced we find the following exchange in the reporter's transcript.
The appeal urges that this cause be reversed and that the plea of guilty, the judgment of guilt and the sentence be set aside. The opening brief makes the following assertions of error.
We quote a portion of Federal Rule 11.
Our Supreme Court in the case of State v. Laurino, 106 Ariz. 586, 480 P.2d 342 (1971), recognizes that the United States Supreme Court has '* * * in effect, extended the procedural requirements of Rule 11 of the Federal Rules of Criminal Procedure to the state courts.'
On appeal the defendant urges that the trial court must ascertain that there is a factual basis for the plea prior to the entry of the plea of guilty and that the defendant must admit the facts. We do not agree. In Arizona the final disposition is not always entered by the judge who accepts the plea. At the time of the entry of the plea the busy trial judge often is not informed as to the facts and has no basis upon which to then question the defendant as to the facts. Once the plea has been 'made voluntarily with understanding of the charge and the consequences of the plea', the next phase of the criminal proceeding is that the case is investigated by a probation officer. It is only thereafter that the judgment of guilt and the sentence or probation are announced.
In the light of our procedures we analyze the Rule as follows:
On a plea of guilty, the rule requires:
1. That the court must address the defendant personally.
2. That the court must determine that the plea of guilty:
a. is made voluntarily;
b. is made with an understanding of the nature of...
To continue reading
Request your trial
-
State v. Stewart
...Criminal Procedure, rule 26.13. A sentence that is consecutive to that of another jurisdiction is lawful. See State v. Sutherland, 14 Ariz.App. 344, 347, 483 P.2d 576, 579 (1971). In the instant case, the trial judge found that appellant had: 1) an accomplice; 2) prior felony convictions; 3......
-
State v. Ross
...to ascertain a 'factual basis' for the plea prior to accepting the guilty plea. It was recently pointed out in State v. Sutherland, 14 Ariz.App. 344, 483 P.2d 576 (1971), that the court must be satisfied that there is a factual basis for the plea prior to the entry of judgment, and not prio......
-
State v. Kuhlman
...the argument that the trial court must ascertain the presence of a factual basis for the plea prior to its entry in State v. Sutherland, 14 Ariz.App. 344, 483 P.2d 576 (1971), stating: 'Had the trial court found an absence of a factual basis for the entry of a judgment of guilt, the court w......
-
State v. Ellison
...the issue of the defendant's ability to waive his several constitutional rights. The Arizona Court of Appeals in State v. Sutherland, 14 Ariz.App. 344, 483 P.2d 576 (1971), correctly said that with a plea of guilty, the rule of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 274 (1......