775 P.2d 543 | Ariz. Ct. App. | 1989
OPINION
On December 16, 1986, appellant Nancy Stellwagen (defendant) was indicted on two counts of molestation of a child and two counts of sexual conduct with a minor, class 2 felonies and dangerous crimes against children. On April 27, 1987, defendant entered into a written plea agreement (agreement) and agreed to plead guilty
Before accepting defendant’s plea, the trial court addressed defendant personally and determined that the plea was knowing, voluntary, intelligent, and had a factual basis. The trial court then accepted the plea.
On June 26, 1987, the trial court pronounced judgment, sentenced defendant to an aggravated term of 15 years of imprisonment on one count, and placed defendant on lifetime probation on the second count.
Counsel for defendant filed a brief complying with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), requesting this court to search the record for fundamental error pursuant to A.R.S. § 13-4035. This court ordered supplemental briefing on the issue of
A.R.S. § 13-604.01(1) provides:
In addition to the term of imprisonment imposed pursuant to this section and notwithstanding any other law, the court shall order that a person convicted of any dangerous crime against children in the first degree be supervised on parole after release from confinement on such conditions as the court or the board of pardons and paroles deems appropriate for the rest of the person’s life. If the person is convicted of any dangerous crime against children in the second degree the court, in addition to any term of imprisonment imposed or in lieu of the term if probation is otherwise authorized, may order that the person convicted be supervised on probation or on parole after release from confinement on such conditions as the court or board of pardons and paroles deems appropriate for any term up to the rest of the person’s life.
(emphasis added).
In Wagstaff,
A defendant convicted of a dangerous crime against children in the second degree is eligible for probation, and thus revocation of defendant’s probation is available as a sanction for violation of the conditions thereof. Cf Wagstaff, 161 Ariz. at 70, 775 P.2d at 1134. Further, the imposition of probation is clearly within the judiciary’s authority. A.R.S. § 13-901, et seq.; Rule 27, Arizona Rules of Criminal Procedure.
Pursuant to A.R.S. § 13-4035, we have read and considered counsel’s brief and have reviewed the entire record for fundamental error. We find no reversible error.
Upon this court entering its decision in this matter, counsel is relieved from all further responsibilities in this appeal except, if appropriate, filing a motion for reconsideration in this court. State v. Skattuck, 140 Ariz. 582, 684 P.2d 154 (1984). Counsel shall notify defendant in writing of the fact that defendant, if aggrieved by this decision, is entitled to file a motion for reconsideration or a petition for review within 30 days pursuant to Rule 31.19, Arizona Rules of Criminal Procedure.
The conviction, sentence, and imposition of probation are affirmed.
. Defendant entered her guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
. A petition for review in Wagstaff is pending in the Arizona Supreme Court. State v. Wagstaff, CR-88-0299-PR (Nov. 23, 1988).
. We have recently declined to follow Wagstaff where it construes A.R.S. § 13-604.01(1) to be violative of the separation of powers doctrine. See State v. Berger, 1 CA-CR 88-522 (June 6, 1989).