State v. Gherna

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] trial 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.