Rule 188, Rules of Criminal Procedure, 17 A.R.S., provides that the trial court may permit a plea of guilty to be withdrawn "at any time before sentence." In the case of State v. Telavera, 76 Ariz. 183, 261 P.2d 997 this court had occasion to construe the statute which preceded and contained the same language as Rule 188. Telavera had served less than one month of his sentence when he moved to withdraw his plea of guilty.
But we feel that the wrong may be ascribed more to the follies of youth in this era of confusion and frustration than to a wicked and depraved heart. State v. Telavera, 76 Ariz. 183, 187, 261 P.2d 997, 1000 (1953) (Phelps, J.). We must also recognize that sexual conduct among post-pubescent teenagers is not uncommon.
His motion to set aside the sentence and plea of guilty was filed on May 13, 1965, after the date of his sentencing, after incarceration on such sentence, and after he began serving the sentence imposed. In State v. Telavera, 76 Ariz. 183, 261 P.2d 997 (1953), unaffected by subsequent decisions, the defendant was charged with statutory rape, convicted and sentenced to a lengthy prison term. Preliminary hearing proceedings were waived and at his arraignment, defendant pleaded guilty. After his incarceration, he moved for a new trial, and to withdraw his plea of guilty and to enter the plea of not guilty to the offense. In interpreting Section 44-1026, A.C.A. 1939, currently 17 A.R.S. Rules of Criminal Procedure, Rule 188, verbatim, our Supreme Court stated in State v. Telavera, supra, at page 186, 261 P.2d at page 999:
We have reduced sentences in cases which involved juvenile or youthful offenders. State v. Telavera, 76 Ariz. 183, 186-87, 261 P.2d 997, 999-1000 (1953) (seventeen-year-old defendant); State v. Fierro, 101 Ariz. 118, 121, 416 P.2d 551, 554 (1966) (seventeen-year-old defendant); State v. Flores, 108 Ariz. 231, 232, 495 P.2d 461, 462 (1972) (eighteen-year-old defendant); State v. Seelen, 107 Ariz. 256, 262, 485 P.2d 826, 832 (1971) (nineteen-year-old defendant). This court has also reduced sentences as excessive based on the errors and omissions of the sentencing court. State v. Killian, 91 Ariz. 140, 145, 370 P.2d 287, 292 (1962) (reducing a sentence for possession of marijuana largely because the trial court had been misled to believe that defendant was guilty of an unrelated rape); State v. Tuggle, 101 Ariz. 216, 219, 418 P.2d 372, 375 (1966) (remanding a case for resentencing because the sentencing court did not consider as mitigation defendant's age at the time of the crime (eighteen), his rehabilitation, and his restitution to both the victims and the state).
As several courts, including this one, have previously noted, consensual sexual activity between minors "may be ascribed more to the follies of youth in this era of confusion and frustration than to a wicked and depraved heart." State v. Telavera, 76 Ariz. 183, 187, 261 P.2d 997, 1000 (1953); see also People v. Hernandez, 61 Cal.2d 529, 393 P.2d 673, 39 Cal.Rptr. 361 (1964); State v. Sepulvado, 367 So.2d 762 (La. 1979). The Model Penal Code suggests one approach to the types of problems that this case raises.
On this basis, the power vested by ยง 13-1717 has been exercised occasionally. See, e.g., State v. Waldrip, 111 Ariz. 516, 533 P.2d 1151 (1975); State v. Televera, 76 Ariz. 183, 261 P.2d 997 (1953); State v. Kovacevich, 26 Ariz. App. 216, 547 P.2d 487 (1976). Having reviewed the record, we find that there are mitigating circumstances involved which necessitate reduction of defendant's sentence.
On this showing, inter alia, the trial court granted a motion for error coram nobis and the people appealed. Were it not for the holding in State v. Lee Lim, supra, it would be the writer's personal opinion that coram nobis should be the correct remedy in Utah. (See State v. Telavera, 76 Ariz. 183, 261 P.2d 997 and People v. Wade, 53 Cal.2d 322, 1 Cal.Rptr. 683, 348 P.2d 116.) In affirming the trial court's action (and consistent with the sound discretion doctrine), the following language was used by the appellate tribunal: "While this case is a close one we cannot say, as a matter of law, that the conclusions made by the trial judge are not within his discretion."
Our Supreme Court, through a long line of cases, holds that matters in criminal cases must be reviewed and decided solely on the record made in the trial court. State v. Telavera, 76 Ariz. 183, 261 P.2d 997 (1953); Sam v. State, 33 Ariz. 383, 265 P. 609 (1928); Shew Chin v. State, 33 Ariz. 419, 265 P. 621 (1928); Gee Long v. State, 33 Ariz. 420, 265 P. 622 (1928). It is within defendant's control as to what the record on appeal will contain, and it is defendant's duty to prepare the record in such a manner as to enable us to pass upon the questions sought to be raised in his appeal.