Opinion
No. 1 CA-CR 558.
May 22, 1973.
From a judgment of conviction and sentence imposed on defendant following her guilty plea in the Superior Court, Maricopa County, Cause No. CR-72108, Rufus C. Coulter, Jr., J., defendant appealed. The Court of Appeals held that sentence to not less than five nor more than ten years was not shown to be an abuse of discretion for the offense of embezzling about $14,000 from her employer, though it was defendant's first offense, she had five children and the crime was against property only and did not involve violence.
Judgment and sentence affirmed.
Gary K. Nelson, Atty. Gen., by William J. Schafer, III, Chief Counsel, Crim. Div., Phoenix, for appellee.
Ross P. Lee, Public Defender, Maricopa County, by James H. Kemper, Deputy Public Defender, Phoenix, for appellant.
This is an appeal from a judgment of conviction and sentence imposed on appellant following her plea of guilty to one count of a six count information charging six instances of theft by embezzlement, a felony. Her plea of guilty was apparently the result of a bargain calling for the dismissal of five counts, which was done.
Appellant, an indigent, was represented at all proceedings from the preliminary hearing through sentencing, and is represented on this appeal, by the Maricopa County Public Defender. Said counsel has advised this Court by motion to withdraw that after a diligent search of the entire record in this case, he has been unable to discover any reversible error upon which an appeal could be based. He has filed a brief raising one issue which he considers arguable, and has furnished appellant with a copy of his brief and motion to withdraw, in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After the filing of counsel's brief, this Court entered an order granting appellant an additional 30 days in which to file her own supplemental brief raising any additional points she might choose to bring to this Court's attention. A personal supplemental brief has been filed by appellant.
This Court has read and considered the briefs filed by appointed counsel and by appellant personally, has examined the entire record of the proceedings, and has determined that there was no fundamental error and that this appeal is wholly frivolous.
The only "arguable" issue raised by either brief is the contention that the sentence is excessive under the facts of the case. The grounds for this contention are that this is appellant's first offense, that she has five children, and that the crime was against property only and did not involve violence. The record indicates, however, that appellant embezzled about $14,000 from her employer during an approximate six month period by forging checks on the employer's account.
It is the well established law of this State that if a sentence is within the statutory limits it will be sustained on appeal, in the absence of a clear showing of arbitrary or capricious action by the trial court. State v. Moreno, 109 Ariz. 266, 508 P.2d 730 (filed April 12, 1973); State v. Darling, 109 Ariz. 148, 506 P.2d 1042 (1973); State v. Bible, 104 Ariz. 346, 452 P.2d 700 (1969); State v. Maberry, 93 Ariz. 306, 380 P.2d 604 (1963). The statutory limits of punishment for the offense involved here are not less than one year nor more than ten years in the State Prison. Appellant was sentenced to not less than five nor more than ten years. There is absolutely no showing of any abuse of discretion by the trial court. Appellant's contention is therefore not arguable, but frivolous.
The judgment and sentence appealed from are affirmed.