Opinion
No. 1 CA-CR 671.
April 2, 1974.
Defendant was convicted on a plea of guilty before the Superior Court, Maricopa County, Criminal Cause No. 76789, Harold D. Martin, J., of forgery and he appealed. The Court of Appeals, Stevens, J., held that even though it would have been better had the trial judge enlarged the record by reciting that he found a factual basis for the plea, court's statement that defendant was found guilty on his plea of guilty and the report of the probation department was sufficient to sustain the conviction.
Affirmed.
Gary K. Nelson, Atty. Gen. by William J. Schafer, III, Chief Counsel, Crim. Div., Asst. Atty. Gen., for appellee.
Ross P. Lee, Maricopa County Public Defender by H. Allen Gerhardt, Jr., Deputy Public Defender, for appellant.
OPINION
After a plea of guilty to the charged offense of forgery, a judgment of guilt and a sentence, Edward Martinez Vasquez, herein referred to as the defendant, perfected an appeal to this Court under his privileges as an indigent.
The opening brief was filed urging that the only arguable question was the absence of an express finding of a factual basis for the plea. No error is urged in the taking of the plea and based on the record and the signed pretrial statement we find no error in the taking of the plea.
At the time of the filing of the opening brief, counsel for the defendant filed a motion for leave to withdraw. By a written order this Court took the motion under advisement. The order directed that the record be sent to the defendant and specified a specific date on or before which the defendant could supplement the opening brief. This he has not done. The files in the instant case reflect that the record was forwarded to the defendant as the Court directed.
The record in the instant case makes reference to 1 CA-CR 635 which is an appeal arising out of Maricopa County Criminal Cause No. 71350.
In the instant case and in the minutes of the hearing of 14 September 1974 Judge Martin stated:
"by reason of your plea of guilty and the report of the Probation Department it is now the Judgment of this Court that you are guilty of the crime of Forgery, a Felony."
Neither the report of the Probation Department nor the reporter's transcript of the 14 September hearing is on file in the instant case. The Deputy Public Defender representing the defendant in the instant case is not the same Deputy Public Defender who represents the defendant in 1 CA-CR 635. Hence he probably is not fully aware of the content of the record in 1 CA-CR 635.
This Court has taken judicial notice of the content of the records on file in this Court in 1 CA-CR 635 and therein is the reporter's transcript of the 14 September proceedings in both cases, as well as the probation officer's report which relates to both cases. In relation to the instant case the defendant made admissions to the probation officer which furnished a factual basis for the plea of guilty and for the judgment of guilt.
How much better it would be had the trial judge enlarged the record by reciting that he found a factual basis for the plea.
We have examined the record for fundamental error and found none. This appeal is wholly frivolous.
DONOFRIO, P.J., and OGG, J., concur.