STATE of Arizona, ex rel. Ross F. JONES, The Attorney General of the State of Arizona, Petitioner,
SUPERIOR COURT of the State of Arizona, IN AND FOR THE COUNTY OF PINAL, and The Honorable Frank E. Thomas, Judge, Respondents.
[78 Ariz. 369] Ross F. Jones, Atty. Gen., William T. Birmingham and Roderick M. Jennings, Asst. Attys. Gen., for petitioner.
Frank E. Thomas, respondent Judge in pro. per.
Francis J. Brown, Phoenix, for prisoner, Charles A. Gusick.
This cause comes to us on certiorari. The ultimate question for determination is whether the application of Charles A. Gusick for a writ of habeas corpus stated grounds sufficient to confer jurisdiction on the trial court to issue such a writ. The problem will be better understood if we set forth a rather detailed account of proceedings heretofore had in Cause No. 22012, State of Arizona v. Charles A. Gusick, alias Charles A. Girard. This criminal case had been set for trial for 10 a. m., August 17, 1951, in Division No. 6 of the Maricopa County Superior Court. On that date defendant appeared with his counsel George T. Wilson. Counsel for the State and defendant announced ready. The defendant, petitioner herein, through his counsel then and there asked leave to withdraw his plea of not guilty theretofore entered to the charge of fellatio, counts 1 through 20 of the information. The court entered its order permitting him to withdraw[78 Ariz. 370] his plea of not guilty which he did and immediately entered his plea of guilty to said charge of fellatio, a felony, in counts 1 to 20 of the information. The court then fixed the time for passing sentence at 10 a. m., August 22, 1951.
Defendant appeared in said court with his counsel at the appointed time and the court imposed sentence of three to five years in the state penitentiary at Florence
in each of said counts and ordered that said sentences were to run consecutively.
Defendant was duly committed to the penitentiary at Florence, Arizona, in accordance with the provisions of the sentences pronounced in open court on August 22, 1951, and the provisions of the formal written judgment and commitment thereafter filed in said court on the following August 24. Defendant has been confined in said penitentiary since his commitment therein and now is so confined.
On November 12, 1954, petitioner through his counsel, Francis J. Brown, filed in the Pinal County Superior Court a petition for writ of habeas corpus directed against the warden of the penitentiary. The petition including exhibits, testimony of witnesses and sundry other matters, consists of over 300 typewritten pages. Much of the petition is repetitious, much of it is wholly immaterial and redundant, and much of it is in the nature of aspersions upon the integrity, honesty and ethics of his own counsel (now deceased) in handling his case and upon the trial judge by charging that he entered into an alleged agreement with counsel for petitioner and the county attorney which he violated and that he materially changed the judgment and sentences of the court imposed upon petitioner after petitioner had left the court room, and sundry other charges. Happily the records of the court in that case do not support the charges made against either the attorney or the judge.
The trial judge who entertained the petition for the writ of habeas corpus issued the writ on the date petition was filed and made it returnable forthwith. On the same date he proceeded to hear testimony from the defendant before counsel representing the State had been given a copy of the petition or had time to study the same and make a response thereto. After hearing the testimony of the petitioner the cause was then continued until 10 a. m., November 24.
On November 17, 1954, the State through its Attorney General, Ross F. Jones, made application to this court for a writ of certiorari to test the jurisdiction of the trial court to order the issuance of a writ of habeas corpus in said cause. Certiorari issued on said date and the matter is now at issue before us for our determination.
It the trial court in Maricopa County had jurisdiction to pronounce judgment and sentence imposed by it on petitioner Gusick on August 22, 1951, in Cause No. 22012 then pending in that court, the trial court of Pinal County had no jurisdiction to issue [78 Ariz. 371] the writ of habeas corpus on November 12, 1954. On the other hand, if the trial court of Maricopa County was without jurisdiction to impose sentence and judgment upon defendant Gusick on August 22, 1951, the trial court of Pinal County properly issued said writ of habeas corpus.
The State assigns as error:
'That the Pinal County Superior Court exceeded its jurisdiction in issuing a writ of habeas corpus in that the petition for writ of habeas corpus does not allege, state or in any manner show on its face sufficient grounds for the issuance of a writ of habeas corpus.'
It states as its first proposition of law based upon said assignment that 'habeas corpus may be used to review only matters affecting the jurisdiction of the court.'
That the trial court of Maricopa County had jurisdiction both of the person and of the subject matter and had authority to pronounce sentence and judgment on August 22, 1951, in said cause upon a plea of guilty there can be no doubt. Petitioner apparently bases his claim of lack of jurisdiction to pronounce the sentence and judgment in this cause upon the ground that the court did not comply with the mandatory provisions of the statute in such cases made and provided in that it pronounced its sentence and judgment in the absence of the defendant. We will hereinafter discuss this particular phase of his claim.
It is undoubtedly a correct statement of the law that the writ of habeas corpus may be used only to review matters affecting the jurisdiction of the court. In the case of Ex parte Long, 26 Okl.Cr. 259, 223 P. 710, 711, it is stated that:
'It is undoubtedly the law that upon habeas corpus ...