State v. FarleyState v. Farley
Clarence Farley — hereinafter referred to .as defendant — was charged with the crime ■of burglary of the first degree in Count I; and Cоunt II, burglary in the second degree. On the 11th day of April 1969 he entered ‘his plea of guilty of burglary in the second degree, and was sentenсed to serve not less than three years nor more than five years at the Arizona State Penitentiary, to begin -with his original incarсeration April 2, 1969.
From the judgment and sentence of the -court he appeals.
Counsel was appointed to .represent defendant on appeal. Counsel advised this. Court that he had thoroughly read the file in the matter; had consulted with defendant’s wife and by mail'with defendant; had interviewed deputies of the Sheriff’s offiсe Aiid the probation officer, the county attorney' and the ;deputy county attorney; had -examined the reporter’s transcript;., and-that he had made a‘search' of the law — particularly of Arizona cases pertaining to. appeаls initiated in propria personam. From these investigations counsel represented to. the Court that he was “unable to fin'd, grounds on which an appeal could be based,” and stated his reasons therefor, together with the points raised by defendant, A сopy of the statement was sent to defendant, and the defendant — on advice of counsel — presented his contentions pro se. Counsel for defendant thereafter filed his supplemental statement referring to the pertinent parts of the record which might arguably support the appeal, in compliance with Anders v. State of California,
“1. That Defendant did not enter his: plea voluntarily, because he-did not-fully understand his rights; and
“2. That the sentence imposed was excessive.”
The record shows that, as pointed out by counsel, defendant apрeared in' court, and that he was fully advised of his rights'to have an attorney. 'The transcript shows' that he told the court that he would represent himself. The only question" that he raised after his plea was that "of leniency. '
The “arguable” points.are not well-’ founded. The - record indicates that defendant was conducting-.his own “plea-bar-; gaining.” We. have therefore examined-the record as to whether, the court followed the procedure- required for the protection of a. defendant’s rights in “plеa bargaining.” State v. Davis,
Defendant was charged with prior convictions on each of the two counts. At this stаge of the proceedings the county-attorney moved to dismiss the first prior conviction. Defendant then was asked if he werе ready to proceed without counsel, realizing the seriousness of the felony, and that he had been charged with a prior conviction. He was arraigned on the first count, and entered a plea of not guilty. On the second count he entered a plea of guilty. Thereafter, the court questioned him in regard to his plea on the prior conviction on the second сount. The defendant was asked whether he had admitted the prior conviction alleged to have occurred on about the 14th day of May 1965. Defendant asked at what location the crime was alleged to have been committed, and the cоurt stated:
“Very good question. The allegation should set forth where the conviction was. I can’t answer that.”
Thereupon, defеndant entered a plea of not guilty to the prior conviction, stating “because in 1965, 1 was in the Oklahoma State Penitentiary.” At this time the county attorney moved to dismiss the second prior and Count I, which motion was granted by the court. The defendant then requestеd that the court pronounce sentence at that time. The court advised defendant that it appreciated that he wanted sentence pronounced at that time, but it was against the policy of the court to pronounce sentence until a pre-sentencing report was filed, April 11 at 9:00 a. m. was set as the date for pronouncing the sentence, at which timе the defendant made his statement asking for leniency. Defendant stated that he realized the . seriousness of the charge; that he readily admitted his guilt to the crime; that the taking of the things was a bad thing to do because he had two hundred dollars in his pocket; and that he realized there was no excuse for his actions; and that it must be that he had a mental problem and wanted to get hеlp. The court, after pronouncing sentence, properly advised the defendant of his right of appeal. The record shows the defendant entered his plea voluntarily and with a full understanding of the consequences of such plea after рroper advice and explanation by the court.
In regard to leniency, this Court has held that the trial court has a wide discrеtion in the pronouncing of a sentence, and that it will uphold a sentence if it is within statutory limits, unless there is a clear abuse of discretion by the court. State v. Bible,
The defendant, in propria person-am, raises the additional question — namely, whether his constitutional rights were violated by his not being taken to the Arizona State Penitentiary after his sentencing of from three to five years, аnd states that instead he was released to the custody of Coconino County to face charges, and was there cоnfined in jail instead of immediately being sent to the penitentiary. The court, in sentencing defendant, provided that the term of imprisоnment “shall begin with the date of your original incarceration, April 2, 1969.” This Court held, in State v. Rhodes,
Judgment affirmed.