State v. Torres-Vasquez

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. MARCOS ALBERTO TORRES-VASQUEZ, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 04/29/10 PHILIP G. URRY,CLERK BY: JT 1 CA-CR 09-0069 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-103413-002 DT The Honorable John R. Hannah, Jr., Judge AFFIRMED ________________________________________________________________ Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Sherri Tolar Rollison, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender Phoenix By Margaret M. Green, Deputy Public Defender Attorneys for Appellant ________________________________________________________________ G E M M I L L, Judge ¶1 Marcos Alberto Torres-Vasquez ( Torres-Vasquez ) appeals his conviction and sentence for possession or use of a dangerous drug, a class-four felony. issues on appeal. Torres-Vasquez raises two He argues that the trial court erred by not engaging with him in a plea-type colloquy before allowing his defense counsel to stipulate to elements of the dangerous drug possession charge. Torres-Vasquez also argues that the trial court erred by not engaging with him in a plea-type colloquy before accepting his defense counsel s stipulation that TorresVasquez committed the offense while on probation. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 We therefrom view the in the light convictions. and most all reasonable favorable to inferences sustaining the State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). ¶3 facts The record reveals the following facts. On January 14, 2008, Torres-Vasquez was involved in a minor traffic accident. Following the accident, Torres-Vasquez exited the pickup truck and spoke with the driver of the other car. Torres-Vasquez told the other driver that he had a skin infection on his torso, and he asked the driver if he could leave to go to the hospital. Torres-Vasquez then lifted his shirt so that the woman could see the section of his torso that he claimed was infected. ¶4 The driver testified that she told Torres-Vasquez, if you want to go, go; I have to call the police. 2 Torres-Vasquez then drove away. The driver stated that she believed Torres- Vasquez fled the scene of the accident because he did not wait for police to arrive. ¶5 When the driver of the other car contacted the police, she provided them with the license plate number of the pickup truck that Torres-Vasquez was driving. A police officer then contacted the registered owner of the pickup truck who informed the officer that the pickup truck had been left at Corona s Auto Body a little over a month ago. Police officers then drove to Corona s Auto Body to investigate. ¶6 When police officers arrived at Corona s Auto Body, they questioned the owner, Ramiro, about the pickup truck. While police officers were questioning Ramiro about the pickup truck, they saw Torres-Vasquez driving into Corona s Auto Body in the pickup truck. he was driving the Torres-Vasquez testified that the reason pickup truck was because he sometimes performed mechanical repairs on some of the cars at Corona s Auto Body and that Ramiro told him he could drive the pickup truck because it had been left at his body shop for several months. After confirming that the pickup truck was the truck from the accident, police officers arrested Torres-Vasquez for fleeing the scene of an accident. ¶7 In the search incident to arrest, police officers found a black plastic case in Torres-Vasquez s front pocket. 3 Officer Ortiz testified that when he asked Torres-Vasquez what was inside the plastic case, Torres-Vasquez responded, drugs. When Officer Ortiz opened the plastic case, he found a clear, plastic bag containing a clear crystallized [sic] substance. Torres-Vasquez testified that he found the black plastic case earlier that day while performing mechanical repairs on one of the cars in Ramiro s body shop and that he did not know what was inside the case. ¶8 The parties methamphetamine is a stipulated dangerous prior drug and to that trial the that substance contained in the black plastic case was methamphetamine, of a usable quantity Vasquez guilty in of usable condition. possession or use A of jury a found dangerous Torresdrug.1 Following the announcement of the jury verdict, Torres Vasquez s defense counsel agreed to stipulate that Torres-Vasquez committed the offense while on probation. ¶9 The court sentenced Torres-Vasquez to serve ten years in prison, which at the time was the presumptive sentence for anyone with two prior felony convictions who committed a classfour felony. ¶10 Torres-Vasquez filed a timely challenging his sentence and conviction. 1 notice of appeal We have jurisdiction Torres-Vasquez was also charged with unlawful use of means of transportation, and the jury found him not guilty of that offense. 4 pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and -4033(A)(1) (2010). DISCUSSION ¶11 Torres-Vasquez argues that the stipulation concerning the nature of the substance in the black plastic case was the functional equivalent of a guilty plea, and thus the court was required to ensure that the stipulation was made voluntarily and intelligently. Vasquez must Because no objection was made at trial, Torresdemonstrate prejudicial, structural error to obtain a reversal. fundamental error See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). reviewed the record and after or Torres-Vasquez s Having arguments, we find no error -- fundamental, structural, or otherwise. ¶12 Pleading guilty to a criminal offense has significant consequences. Alabama, admits As the U.S. Supreme Court explained in Boykin v. a plea that the of guilty accused is did more than various a acts; confession it is which itself a conviction; nothing remains but to give judgment and determine punishment. 395 U.S. 238, 242 (1969) (citing Kercheval v. United States, 274 U.S. 220, 223 (1927)). ¶13 Rule 17 of the Arizona Rules of Criminal Procedure requires a judge to advise a defendant in open court of the consequences of pleading guilty or no contest to ensure that the 5 defendant wishes to forgo certain constitutional rights. In the past, Arizona cases extended the Rule 17 colloquy requirement to a stipulation that was tantamount to a guilty plea. See, e.g., State v. Woods, 114 Ariz. 385, 388, 561 P.2d 306, 309 (1977); State v. Gaines, 113 Ariz. 206, 207, 549 P.2d 574, 575 (1976); State v. Crowley, 111 Ariz. 308, 310, 528 P.2d 834, 836 (1974). Nearly thirty years ago, however, the Arizona Supreme Court rejected the tantamount to a guilty plea standard as unworkable. State v. Avila, 127 Ariz. 21, 23-24, 617 P.2d 1137, 1139-40 (1980). ¶14 Recently, the Arizona Supreme Court in State v. Allen cited numerous reasons why the tantamount to a guilty plea standard is unworkable. 248 (2009). 223 Ariz. 125, 128, ¶ 17, 220 P.3d 245, The court stated that it is often difficult for a judge to determine when a stipulation is tantamount to a guilty plea and that courts should not have to guess whether a stipulation is sufficiently significant that it will be like pleading guilty. plea standard Id. In addition, the tantamount to a guilty provides the defendant an unfair advantage because it allows a defendant to essentially plead guilty, yet retain rights typically waived when entering a guilty plea, such as the right voluntariness identification to of on test searches, pretrial the admissions, appeal. Id. 6 at right and ¶ 16 to the challenge right (quoting to the test State v. Avila, 127 Ariz. 21, 24, 617 P.2d 1137, 1140 (1980)). ¶15 The standard creates other problems as well. It may cause interruptions in a trial to ascertain whether warnings are required and, if so, to give them. 16, 220 P.3d at 248. In Allen, 223 Ariz. at 128, ¶ addition, it would be entirely unworkable to demand a Boykin inquiry every time the defense and prosecution come to some arrangement . . . that narrows the issues for trial. Id. (quoting Adams v. Peterson, 968 F.2d 835, 846 (9th Cir. 1992) (Kozinski, J., concurring)). Moreover, such a standard requires inappropriate judicial speculation as to defense counsel's trial strategy. ¶ 17, 220 P.3d at 248. Allen, 223 Ariz. at 128, Presumably, if the court can imagine a strategy, the stipulation may be accepted without the necessity of warnings. If, however, the court cannot identify a reason for a stipulation, a colloquy is required. ¶16 marijuana. Id. In Allen, the defendant was charged with possession of Id. at 126, ¶ 6, 220 P.3d at 246. The trial court instructed the jury that the crime of possession of marijuana charge requires proof that (1) the defendant knowingly possessed marijuana, (2) the substance was in fact marijuana, and (3) the defendant possessed a usable amount of marijuana. n.1, ¶ 9, 220 P.3d at 247 n. 1. Id. at 127 The defendant s attorney stipulated that the defendant was in possession of a usable amount of marijuana at the time he was arrested. 7 Id. at 126, ¶ 6, 220 P.3d at 246. The defendant argued that the stipulation was the functional equivalent of a guilty plea, and therefore the court was colloquy. ¶17 required to engage with him in a plea-type Id. at 127, ¶ 12, 220 P.3d at 247. The Arizona Supreme Court rejected Allen s argument that the stipulation was the functional equivalent of a guilty plea. The Court held that stipulations to facts combined with not guilty pleas are simply not equivalent to a guilty plea . . . even if the stipulation is to all elements necessary to a conviction and even if it might appear to a reviewing court that the stipulation serves little purpose. Id. at 127-28, ¶ 14, 220 P.3d at 247-48 (quoting Adams, 968 F.2d at 842). noted that [p]arties routinely stipulate to The court easily proven facts, and courts encourage such stipulations to narrow issues and to promote judicial economy. Allen, 223 Ariz. at 127, ¶ 11, 220 P.3d at 247 (citing State v. West, 176 Ariz. 432, 447, 862 P.2d 192, 207 (1993), overruled on other grounds by State v. Rodriquez, 192 Ariz. 58, 961 P.2d 1006 (1998)). Furthermore, jurors are not bound by stipulations; they may accept or reject them. Allen, 223 Ariz. at 127, ¶ 11, 220 P.3d at 247. ¶18 Torres-Vasquez s attorney stipulated prior to trial that methamphetamine is a dangerous drug and that the substance contained usable inside the plastic case quantity in usable condition. 8 was methamphetamine The final of a jury instructions dangerous stated drug that requires [t]he proof of crime of the possession following: 1. of a [t]he defendant knowingly possessed a dangerous drug; and 2. [t]he substance was in fact a dangerous drug; and 3. [t]he substance possessed was a usable amount of a dangerous drug. ¶19 Similar to Allen, the State still had the burden to prove that Torres-Vasquez knowingly possessed methamphetamine. In accordance with Allen, we find no error here. ¶20 Torres-Vasquez next argues that, just as Rule 17.6 of the Arizona Rules of Criminal Procedure requires a plea-type colloquy for similarly stipulations require a to colloquy prior whenever convictions, a we defendant s should attorney stipulates that the offense was committed while the defendant was on probation. ¶21 After the jury was excused at the conclusion of the trial, Torres-Vasquez s attorney stipulated that Torres-Vasquez committed asserts the that offense the trial while court on probation. committed Torres-Vasquez fundamental error by accepting the probation stipulation without first engaging with him in a plea-type colloquy to ensure the stipulation was made voluntarily and intelligently. Because no objection was made at trial, Torres-Vasquez must demonstrate prejudicial, fundamental error or structural error to obtain a reversal. 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. 9 See Henderson, Based on this record and on State v. Morales, 215 Ariz. 59, 157 P.3d 479 (2007), we find no error. ¶22 In Morales, the trial court did not engage in a colloquy with the defendant before accepting a stipulation that the defendant had prior enhancement purposes. felony convictions for sentence Id. at 60, ¶ 3, 157 P.3d at 480. The Arizona Supreme Court held that there was no need to remand the case because conclusive evidence of the defendant s prior convictions had been admitted at a pretrial hearing and neither party challenged the authenticity of the prior convictions. at 62, ¶ 13, 157 P.3d at 482. though the trial court was Id. The Court reasoned that even required under Rule 17.6 of the Arizona Rules of Criminal Procedure to conduct a colloquy with the defendant before accepting the prior conviction stipulation, there would be no point in remanding merely to again admit the conviction records. ¶23 Id. Unlike Morales, in which the court was required under Rule 17.6 to engage in a colloquy with the defendant, there is no similar requirement anywhere in the Arizona Rules of Criminal Procedure that obliges a trial court to engage in a colloquy with the defendant before accepting a stipulation defendant committed the offense while on probation. that the Moreover, Torres-Vasquez does not argue that the probation stipulation is inaccurate. Therefore, in accordance 10 with the rationale of Morales and even if a colloquy was required, there is no need for a remand merely to confirm the unchallenged fact that Torres-Vasquez was on probation when he committed the offense at issue herein. Our conclusion is further supported by the rationale of our supreme court in Allen. CONCLUSION ¶24 For these reasons, we conclude that Torres-Vasquez was not denied his constitutional rights and is not entitled to a new trial. The conviction and sentence are affirmed. _____/s/_______________________________ JOHN C. GEMMILL, Judge CONCURRING: ____/s/______________________________ SHELDON H. WESIBERG, Presiding Judge ____/s/______________________________ PHILIP HALL, Judge 11

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