STATE v. BEGODY

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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. DEAN HENRY BEGODY, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 06/19/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0381 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-008424-001DT The Honorable Carolyn K. Passamonte, Judge Pro Tempore AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Thomas K. Baird, Deputy Public Defender Attorneys for Appellant Phoenix K E S S L E R, Judge ¶1 Defendant-Appellant Dean Henry Begody ( Begody ) was tried actual and convicted physical of two control counts while of aggravated under the driving influence or of intoxicating liquor or drugs, a class 4 felony, and sentenced to two concurrent terms of ten years in prison. Defense counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Finding no arguable issues to raise, counsel requests that this Court search the record for fundamental error. had the opportunity to file a persona but did not do so. supplemental brief Begody in propria We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) section 13-4033(A)(1) (2010).1 ¶2 After a thorough review of the record, we find that the court fundamentally erred when it failed to provide a pleatype colloquy convictions. before The Begody Sixth stipulated Amendment to to the prior felony United States Constitution and Arizona Rule of Criminal Procedure 17.6 require a colloquy to ensure a defendant s convictions is knowing and voluntary. admission to prior Nevertheless, because we find that the court s omission did not affect the outcome of Begody s case, we affirm his conviction and sentence. 1 We cite to the most recent version of the applicable statute where there are no relevant substantive changes. 2 FACTUAL AND PROCEDURAL HISTORY ¶3 white On the evening of August 30, 2007, Begody, driving a SUV and appearing lifeless, intersection against a red light. drifted through a busy Although it was dark and he had his headlights off, cross traffic managed to maneuver or stop short to avoid him and no one was hurt. A good Samaritan, fearing a medical emergency, pulled in front of Begody s vehicle to force a minor collision, bringing it to a stop. The police officer who arrived on the scene discovered Begody passed-out behind the wheel, drooling and smelling of alcohol. Police Department ( BAC ) at .381, measured nearly his five blood times the alcohol legal The Phoenix concentration limit of .08. A.R.S. § 28-1381(A)(2) (Supp. 2011). ¶4 The State charged Begody with two counts of aggravated driving or actual physical control while under the influence of intoxicating liquor 1383(A)(1) (2011). or drugs, a violation of A.R.S. § 28- While out on bail, Begody absconded and was tried in absentia pursuant to Arizona Rule of Criminal Procedure 9.1. The jury unanimously convicted him on both counts. Approximately a year later Begody was picked up on a warrant and sentencing procedures commenced. ¶5 The superior court ordered and received a pre-sentence report. The pre-sentence report contained a reference to an attached criminal history report, 3 which is absent from the record on appeal. report states The commentary section of the pre-sentence that Begody was convicted of seven prior DUI offenses and lists the years each offense was committed, but provides no other details about the crimes. ¶6 The State sought to enhance Begody s sentence under the sentencing provision for repetitive offenders. applicable statute, Begody would face a Under the mandatory eight to twelve years in prison if the State could prove two prior felony convictions beyond a reasonable doubt. A.R.S. § 13-604(C) (Eff. June 13, 2007).2 The prosecutor arrived at the sentencing hearing prepared to prove three historical prior felonies with witness testimony, minute entries, and an Arizona Department of Corrections ( ADOC ) document. hearing, priors, defense and counsel thus, the However, at the beginning of the offered State to never stipulate called requested admission of the minute entries.3 its to the felony witnesses or Still, despite the stipulation offer, the State asked the court to admit the ADOC document into evidence and the court accepted it as an exhibit. Pursuant to the defense stipulation offer, the State read key aspects of the document into the record, including the named 2 The applicable sentencing statutes have reorganized since the time of the offense. 3 been significantly These minute entries were not part of the record on appeal and there is no evidence suggesting the judge received them. 4 offenses, cause conviction. numbers, and the dates of offense and Without conducting the colloquy Rule 17.6 requires, the court then asked Begody if he heard all the information that the prosecutor had read, whether it was correct, and whether the felony convictions belonged to him. Begody affirmed that the information was accurate and that the convictions were his. ¶7 Consequently, the court found that the State has proven and defense has stipulated to the three historical prior felony convictions. The court used two of the historical prior convictions to apply the enhanced sentencing range for a class 4 repetitive offense, and applied the third felony conviction as an additional aggravating factor to determine the proper sentence within the statutory range. A.R.S. § 13-604(C); 13702(C)(24) (2007). The court also found four prior misdemeanor DUI convictions as aggravators. These misdemeanors were neither stipulated by the defense nor listed in the ADOC document. court also deemed aggravating factor. Begody s time as a fugitive to The be an The court weighed these aggravators against mitigating factors, including his substance abuse problem, the non-violent nature of his crimes, and his thirteen years without a felony cancelled offense, and out aggravating the found that the factors. mitigating Thus, the factors court sentenced him to ten years, the presumptive term for a nondangerous class 4 felon with two historical prior convictions. 5 A.R.S. § 13-604(C). DISCUSSION ¶8 In an Anders appeal, this Court must review the entire record for fundamental error. Error is fundamental when it affects the foundation of the case, deprives the defendant of a right essential to his defense, or is an error of such magnitude that the defendant could not possibly have had a fair trial. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005); State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). However, to constitute reversible error, the error must have prejudiced the defendant. Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. After careful review of the record, we find no errors warranting a reversal of Begody s conviction. He had of a fair Criminal trial Procedure Additionally, in and although accordance the we do with evidence find the Arizona supports fundamental Rules the error verdict. in the sentencing proceedings, for reasons that follow, we affirm the sentence. I. ¶9 Prior Felonies Used to Enhance Sentence When a defendant s sentence is enhanced by a prior conviction, the existence of the conviction must be found by the court. State v. Morales, 215 Ariz. 59, 61, ¶ 6, 157 P.3d 479, 481 (2007). This normally requires a hearing in which the State offer[s] in evidence a certified copy of the conviction . . . 6 and establish[es] the defendant as the person to whom the document refers. Id. (quoting State v. Lee, 114 Ariz. 101, 105, 559 P.2d 657, 661 (1976)). However, if the defendant admits to the prior conviction, a hearing is rendered unnecessary. Id. at 61, ¶ 7, 157 P.3d at 481. ¶10 When conviction a that defendant can be admits used or for stipulates sentence to a prior enhancement, the defendant waives certain constitutional rights, and thus, such admissions may not be accepted unless the defendant understands the consequences of the admission. Wright v. Craven, 461 F.2d 1109, 1109 stipulations (9th are Cir. 1972). knowing and To ensure voluntary, such Rules admissions 17.6 and and 17.2 require the court to advise the defendant of his or her right to a hearing and the effects of prior convictions on sentencing. Ariz. R. Crim. P. 17.2, 17.6; Morales, 215 Ariz. at 61, ¶ 6, 157 P.3d at 481. Failure to provide this Rule 17 colloquy deprives the defendant of due process and constitutes fundamental error. Id. at 61, ¶¶ 8, 10, 157 P.3d at 481. If the defendant can also demonstrate prejudice, such error would require remand for an evidentiary hearing at which the State would have the burden to prove the conclusively priors. proves However, the if prior evidence in convictions, the record remand is unnecessary. Id. at 62, ¶ 13, 157 P.3d at 482. ¶11 In Morales, the trial court accepted defense counsel s 7 stipulation to prior felonies without administering the Rule 17 colloquy. Id. at 61, ¶ 10, 157 P.3d at 481. The Arizona Supreme Court did not reach the issue of prejudice because copies of the defendant s hearing conviction and the authenticity. Id. records were defendant admitted failed to at a pre-trial challenge their Thus, the court held there would be no point in remanding for a hearing merely to again admit the conviction records. Id. at 62, ¶ 13, 157 P.3d at 482. ¶12 Here, in failing to administer the Rule 17 colloquy, the superior court fundamentally erred. need not remand because there is Yet as in Morales, we sufficient evidence in the record for a court to have found the appellant s prior felony convictions beyond a reasonable doubt. Id. Here, the State admitted into evidence a notarized copy of an automated summary report from the ADOC, which purports to reflect the true conviction and history of [Begody s] term of incarceration and lists the three felonies. photo and fingerprints The document also contains Begody s from the ADOC database. The felony convictions are further corroborated by the comments in the presentence report. The ADOC document appears equivalent to the standard of evidence on record in contained Moreover, conclude unchallenged taken that copies together, the the documents Morales, where the of trial the court establish 8 record convictions. could Begody s Id. reasonably convictions beyond a reasonable doubt. Finally, the pre-sentence report had an attached criminal history report. Although this report is absent from the record on appeal, it is the appellant s burden to properly prepare the record, and therefore, we presume missing documents support the decision of the court below. State v. Brown, 188 Ariz. 358, 359, 936 P.2d 181, 182 (App. 1997); State v. Rivera, 168 Ariz. 102, 103, 811 P.2d 354, 355 (App. 1990). As such, even without the admission of the minute entries or the witness testimony, there is sufficient evidence to conclusively Begody s prove defective finding. the three stipulation prior felonies, superfluous to rendering the court s Accordingly, we find the court properly imposed the enhanced sentencing range. A.R.S. § 13-604(C). II. Additional Aggravating Factors ¶13 Once the court determines the appropriate sentencing range, the sentencing statutes require the court to impose the presumptive sentence additional aggravating within or that range mitigating unless factors. there A.R.S. § are 13- 702(B); State v. Martinez, 210 Ariz. 578, 583, 585, ¶¶ 16, 26, 115 P.3d 618, 623, 625 (2005). Unlike factors used to enhance the potential sentence, additional facts used to determine the specific sentence within a sentencing range are preponderance of the evidence. proven by a Martinez, 210 Ariz. at 585, ¶ 26, 115 P.3d at 625. 9 ¶14 Begody never stipulated to the prior misdemeanors, but he also never challenged their validity. He never objected to the pre-sentencing report; nor did he object when the prosecutor mentioned those priors during argument at sentencing. We assume the evidence of such misdemeanors is in the missing criminal history records. See Brown, 188 Ariz. at 359, 936 P.2d at 182; Rivera, 168 Ariz. at 103, 811 P.2d at 355. Similarly, the record leaves no doubt as to Begody s fugitive status. Thus, it was within the court s sound discretion to find the additional aggravators and consider them in sentencing. CONCLUSION ¶15 For the foregoing convictions and sentence. reasons, we affirm Begody s Upon the filing of this decision, counsel shall inform Begody of the status of the appeal and his options. Defense counsel has no further obligations, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). 10 Begody shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per reconsideration or petition for review. /s/ DONN KESSLER, Judge CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge /s/ LAWRENCE F. WINTHROP, Judge 11 motion for

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