State v. Gherna

Arizona Supreme Court

State v. Gherna

406 P.2d 396, 99 Ariz. 42, 1965 Ariz. LEXIS 302

CourtArizona Supreme Court

DecidedOctober 15, 1965

DocketNo. 1423

StatusPublished

Cited by2 cases

This text of 406 P.2d 396 (State v. Gherna) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Gherna, 406 P.2d 396, 99 Ariz. 42, 1965 Ariz. LEXIS 302 (Ark. 1965).

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Opinion

McFarland, Justice.

The appellant, hereinafter referred to as defendant, Michael David Gherna, was convicted of the crime of rape in the second degree, in violation of A.R.S. § 13-611, sub-sec. B, as amended. He was sentenced to the state prison for a term of not less than two nor more than five years, and from this conviction and sentence defendant appealed.

Defendant, along with Carlos Acuna and Willie Paken, picked up the prosecutrix, a fifteen-year-old girl, at the Arctic Circle, a lunch counter located in Tombstone Canyon in Bisbee, Arizona. Defendant, along with the rest of the party, proceeded in defendant’s car to drive up to a dump next to Mule Mountain Pass located near Bisbee. Paken and defendant then proceeded to have sexual intercourse with prosecutrix. Thereafter, defendant took prosecutrix to the home of one of her friends. From this sequence of events, charges were brought, resulting in the conviction from which defendant presently appeals.

Although the record shows that defendant did not have counsel at his preliminary hearing, it does not disclose that defendant was prejudiced in any manner by the lack of counsel at that hearing, as no plea was entered, nor was any testimony taken, other than as to indigency. From the time of arraignment, defendant was vigorously defended by court-appointed counsel. Here, on appeal, defendant’s court-appointed counsel, different from his [43]*43trial counsel, made a letter a part of the record, wherein counsel indicated that he had attempted to contact his client, but had not received a reply to his written inquiries. Therefore, counsel on appeal submitted the record for examination as to fundamental error.

This court, having reviewed the entire record here on appeal, cannot find any fundamental error. Therefore, the conviction and sentence are affirmed. A.R.S. § 13-1715. State v. Brewer, 99 Ariz. 55 (October 14, 1965), 406 P.2d 405; State v. Burrell, 96 Ariz. 233, 393 P.2d 921.

LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and BERNSTEIN and UDALL, JJ., concurring.

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McFarland, Justice.

The appellant, hereinafter referred to as defendant, Michael David Gherna, was convicted of the crime of rape in the second degree, in violation of A.R.S. § 13-611, sub-sec. B, as amended. He was sentenced to the state prison for a term of not less than two nor more than five years, and from this conviction and sentence defendant appealed.

Defendant, along with Carlos Acuna and Willie Paken, picked up the prosecutrix, a fifteen-year-old girl, at the Arctic Circle, a lunch counter located in Tombstone Canyon in Bisbee, Arizona. Defendant, along with the rest of the party, proceeded in defendant’s car to drive up to a dump next to Mule Mountain Pass located near Bisbee. Paken and defendant then proceeded to have sexual intercourse with prosecutrix. Thereafter, defendant took prosecutrix to the home of one of her friends. From this sequence of events, charges were brought, resulting in the conviction from which defendant presently appeals.

Although the record shows that defendant did not have counsel at his preliminary hearing, it does not disclose that defendant was prejudiced in any manner by the lack of counsel at that hearing, as no plea was entered, nor was any testimony taken, other than as to indigency. From the time of arraignment, defendant was vigorously defended by court-appointed counsel. Here, on appeal, defendant’s court-appointed counsel, different from his [43]*43trial counsel, made a letter a part of the record, wherein counsel indicated that he had attempted to contact his client, but had not received a reply to his written inquiries. Therefore, counsel on appeal submitted the record for examination as to fundamental error.

This court, having reviewed the entire record here on appeal, cannot find any fundamental error. Therefore, the conviction and sentence are affirmed. A.R.S. § 13-1715. State v. Brewer, 99 Ariz. 55 (October 14, 1965), 406 P.2d 405; State v. Burrell, 96 Ariz. 233, 393 P.2d 921.

LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and BERNSTEIN and UDALL, JJ., concurring.

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406 P.2d 396, 99 Ariz. 42, 1965 Ariz. LEXIS 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gherna-ariz-1965.

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