State v. Tellez
| Decision Date | 07 July 1971 |
| Docket Number | No. 1,1 |
| Citation | 486 P.2d 810,15 Ariz.App. 130 |
| Parties | The STATE of Arizona, Appellee, v. Robert TELLEZ, Appellant. C.A.-CIR 362. |
| Court | Arizona Court of Appeals |
Gary K. Nelson, Atty. Gen., by Paul J. Prato, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender, by James H. Kemper, Deputy Public Defender, Phoenix, for appellant.
This appeal is from a sentence of not less than five nor more than ten years after a plea of guilty to a charge of attempted sodomy. The guilty plea was a result of a plea bargain. The information here was amended from the original charge of sodomy with a child under fifteen years of age.
The appellant contends that the trial court failed to advise him of the nature of the charge against him and the consequences of his guilty plea, to the effect that the conviction below is invalid, citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Laurino, 106 Ariz. 586, 480 P.2d 342 (1971); State v. Patterson, 14 Ariz.App. 158, 481 P.2d 528 (1971). The guilty plea is not questioned in any other respect. In Laurino our Supreme Court held that Rule 11 of the Federal Rules of Criminal Pro cedure 1 had been, in effect, extended to the states by Boykin.
As to the first of appellant's contentions, the trial court told appellant that the amended information stated that:
'* * * on about the 8th of May, 1970, you (appellant) did commit an infamous crime against nature with David--it's either Carol or Carole (sic), it's got a lower case E on the end of the name, in this County.'
The trial court also questioned the defendant further:
'THE COURT: Can you, just briefly, tell me why a charge has been filed, or what you think you are pleading guilty to?
'A (By Mr. Tellez): Because I had an affair with him.
Q Because you had an affair with this David Carole (sic), is that correct?
A Yes, ma'am.
Q Was that about May 8th of this year?
A Yes.
Q Where did this take place?
A Well, it was supposed to take place at my house, they said.
Q In your house?
A Yes.
Q And, where is that, the same address that you are living now?
A Yes.
Q Did you know David at that time?
A Yes, I have known David probably about a year now.
Q And, is he a neighbor?
A Yes, ma'am.
Q How far away does he live?
A He lives on 10th Street.'
These portions of the testimony from the reporter's transcript convince us that the appellant was informed of the nature of the charge against him and understood.
As to the appellant's second contention, that the consequences of his guilty plea were not explained, the reporter's transcript reveals that the trial court told the appellant that the maximum punishment was ten years in the State Prison. No objection was made by either counsel for the appellant or for the State in the court below. On appeal, it is urged that the possible maximum punishment for the offense appellant plead guilty to was half a lifetime under A.R.S. §§ 13--651, as amended, and 13--110(1). This would be true if the appellant had been charged with attempted sodomy with a child under fifteen years of age in the amended information, but the amended information made no reference to the age of the victim, with the result that the maximum punishment was ten years, which is half the maximum sentence for conviction of attempted sodomy (without regard for the victim's age). The trial court accurately advised the defendant of the possible maximum punishment here. Additionally, no prejudice could have possibly occurred by this alleged error, if it was error, in that the ten-year maximum...
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State v. Ferreira
...so attempted," A.R.S. § 13-110, which calculates to a term of two and one-half years to one-half life imprisonment. State v. Tellez, 15 Ariz.App. 130, 486 P.2d 810 (1971). Therefore, all counts carry a maximum penalty which exceeds five Next, § 13-1649(B) substitutes a sentence of not less ......