STATE v. YOUNG
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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) JEFFREY CARL YOUNG, ) ) Appellant. ) ) __________________________________) 1 CA-CR 10-1000 DIVISION ONE FILED: 08/07/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT D O P I N I O N Appeal from the Superior Court in Maricopa County Cause No. CR2009-007843-003 DT The Honorable Sally Schneider Duncan, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Aaron J. Moskowitz, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Margaret M. Green, Deputy Public Defender Attorneys for Appellant Phoenix T H O M P S O N, Judge ¶1 sentences Jeffrey imposed Carl after Young he burglary tools and burglary. (defendant) was convicted appeals of from possession the of Defendant contends the sentencing court committed fundamental error by failing to comply with the requirements of Arizona Rule of Criminal Procedure 17 (Rule 17) in accepting his convictions. admissions For two prior historical felony reasons the to set forth below, affirm we defendant s sentences. FACTUAL AND PROCEDURAL BACKGROUND ¶2 A grand jury indicted defendant on two counts of possession of burglary tools, both class six felonies, and two counts of felonies. 1 felony burglary the third degree, both class four The state alleged defendant had two historical prior convictions offenses in while on and that release defendant from committed confinement. Stat. (A.R.S.) § 13-708(C) (Supp. 2011). the See present Ariz. Rev. Following trial, the jury found defendant guilty of all counts. 2 ¶3 Four days later, defendant appeared before the same trial judge and pled guilty in two other matters: CR2010-101366001 and agreement CR2010-005842-001. in CR2010-101366, In connection defendant admitted with two the plea historical prior felony convictions: (1) possession of burglary tools, a class 6 felony; and (2) possession of marijuana, a class 6 1 Because defendant challenges only his sentences, we confine our discussion to the facts and proceedings relevant to that issue. 2 The jury also found the following aggravators: that defendant committed all four felonies in consideration for the receipt of anything of pecuniary value, and that the two thirddegree burglaries involved the presence of an accomplice. 2 felony. The plea agreement included a stipulation that the trial court would sentence defendant as a repetitive offender to eleven years of incarceration in this case, CR2009-007843, and that the sentence would run concurrently to the same sentence in CR2010-101366. ¶4 Before accepting his plea, the trial court engaged defendant in a lengthy colloquy in which defendant confirmed that he understood that his admission to the two prior felony convictions would allow the trial court to sentence him in CR2009-007843 as a repetitive offender and place him in the highest sentencing range possible under the law. The court set forth explained the penalties defendant that pleading he guilty, on was that the record. giving he had up a The court constitutional right to to rights remain by silent, a privilege against self-incrimination, and a right to refuse to testify at trial. Defendant verified that he understood he is presumed to be innocent until proven guilty and the state has to prove his guilt to a jury beyond a reasonable doubt. court s explanation of defendant s constitutional During the rights, following exchange took place: THE COURT: Do you understand that if you are convicted at trial, if at the time of sentencing the State were seeking to increase your sentence above the presumptive sentence, the State would have to give you notice of alleged aggravating circumstances and there would be a second phase to the 3 the trial where the State would have to prove those alleged aggravating circumstances to the jury beyond a reasonable doubt. The jury would have to make that finding unanimously, meaning all of the jurors would have to agree before the court could increase your sentence above the presumptive sentence, and that s true for all alleged aggravating circumstances except for prior felony convictions. Those have to be proven to the court and not a jury. Do you understand that? THE DEFENDANT: Finally, present the court evidence, Yes, Your Honor. explained including that defendant calling witnesses had a and right to testifying himself, and that he had the right to be represented by counsel throughout all phases of a criminal proceeding. Defendant confirmed that he understood all of these rights and that he wanted to give them up in order to enter the guilty pleas. The court found that defendant was entering into the guilty pleas knowingly, intelligently, and voluntarily. ¶5 On November 22, 2010, the trial court sentencing hearing to resolve defendant s three cases. held one Both the state and defense counsel asked the trial court to follow the plea agreement. Pursuant to the plea agreement, the court imposed an aggravated eleven-year prison term in CR2010-101366. In this case, CR2009-007843, the court sentenced defendant to the stipulated aggravated term of 11 years imprisonment for each of the third degree burglary convictions with two historical 4 prior felony imprisonment convictions, for each of and the the presumptive possession of 3.75 years burglary tools convictions with two historical prior felony convictions. 3 prison sentences were ordered to run concurrently. All In CR2010- 005842, the court suspended sentencing and ordered defendant to serve three years of probation upon his release from prison. ¶6 Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. § 12-120.21 (2003). DISCUSSION ¶7 Defendant asserts that the trial court erred by failing to conduct a proper colloquy before finding a waiver of his trial rights, pursuant to Arizona Rule of Criminal Procedure 17, to challenge the existence of his priors and sentencing him as a repetitive offender. Because defendant failed to object, our review is for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Defendant must first prove that an error occurred, and second that the error was fundamental and caused him prejudice. Id. at ¶ 20. An error is considered fundamental when it is error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that 3 In accordance with the plea agreement, the state moved to dismiss the allegation of the other priors and that defendant was on parole. 5 the defendant could not possibly have received a fair trial. Id. at ¶ 19 (citation omitted). ¶8 Under Rule 17.6, [w]henever a prior conviction is charged, an admission thereto by the defendant shall be accepted only under the procedures of this rule, unless admitted by the defendant while testifying on the stand. Thus, Rule 17.6 establishes a colloquy requirement prior to the court accepting a defendant s colloquy, admission there is no of a prior assurance that conviction. the Without admission was a made voluntarily and intelligently in preservation of the defendant s due process rights. State v. Morales, 215 Ariz. 59, 61, ¶ 8, 157 P.3d 479, 481 (2007); see Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). Before a trial court may accept a defendant s admission to a prior conviction, it must advise the defendant of the nature of the allegation, the effect of admitting the allegation on the defendant s sentence, and the defendant s right to proceed to trial and require the State to prove the allegation. State v. Anderson, 199 Ariz. 187, 194, ¶ 36, 16 P.3d 214, 221 (App. 2000); see Ariz. R. Crim. P. 17.2, 17.3, 17.6. ¶9 Defendant concedes that the trial court advised him of the effect his admission would have on the present case, but argues that at no time was he advised of the constitutional rights he gave up in regard to his prior felony convictions. 6 Specifically, defendant contends that he was not advised that he had a right to a trial on the prior felony convictions and was not asked whether he wanted to give up the right to trial on the priors, his right to counsel and his right to plead not guilty. However, on the record before us we do not find error, let alone fundamental error. ¶10 Defendant entered into the plea agreements in order to avoid the possibility of receiving sentences amounting to sixtyfive years in prison. The trial court took defendant through an extensive colloquy in order to ensure defendant was aware of his rights and the consequences of entering into such agreements. Defendant first argues that he was never advised that he had a right to a trial on the prior felony convictions. However, the record shows the court explained that prior felony convictions had to be proven understood this. had the right incrimination, to the court. Defendant stated that he The court also explained to defendant that he to remain and the silent, right to the be privilege represented throughout all phases of a criminal proceeding. affirmed that he understood his rights. against by self- counsel Defendant again After explaining all of defendant s constitutional rights, the court asked if he wanted to give up affirmative. those rights and defendant answered in the Consequently, we find no error because the record establishes that defendant was advised of each of the rights he 7 now complains were not described to him and that he made a knowing, voluntary, and intelligent waiver of those rights. ¶11 Moreover, prejudice to even defendant. if there An were error, inadequate there colloquy was does automatically invoke resentencing of the defendant. no not State v. Carter, 216 Ariz. 286, 290, ¶ 18, 165 P.3d 687, 691 (App. 2007). Defendant bears the burden of persuasion in showing that the error caused him prejudice, that he would not have admitted the fact of the prior conviction had Morales, 215 Ariz. at ¶¶ 61-62, the 10-11, colloquy 157 been P.3d Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. at given. 481-82; Defendant does not allege that he would not have admitted the fact of the prior convictions had a different colloquy occurred. When the defendant s prior convictions are not in the record on appeal, 4 remanding to the trial court is the appropriate remedy because evidence of the necessary prejudice, i.e., that the defendant would not have stipulated to the prior conviction had the proper colloquy taken place, by nature is not usually to be found in the record on appeal. at 692. Carter, 216 Ariz. at 291, ¶ 23, 165 P.3d We conclude, however, that the defendant must, at the very least, assert on appeal that he would not have admitted the 4 Here, defendant s priors are listed in the presentence report filed under CR2010-005842-001. See Morales, 215 Ariz. at 62, ¶ 13, 157 P.3d at 482 (where evidence conclusively proving the prior convictions is already in the record there would be no point in remanding for a hearing). 8 prior felony convictions had a different colloquy taken place. In this case, defendant negotiated a specific sentence and was given the benefit of his bargain exactly. Furthermore, defendant does not suggest that he was not convicted of the felonies at issue or that the state would have been unable to produce the needed documentary evidence of his prior convictions if he had refused to stipulate. 44, ¶ 13, 156 P.3d 1145, State v. Miller, 215 Ariz. 40, 1149 (App. 2007); see State v. Richards, 166 Ariz. 576, 579 n.1, 804 P.2d 109, 112 n.1 (App. 1990) (on resentencing remand, court hearing). can Thus, consider defendant new has evidence not shown in any prejudice from any claimed error. CONCLUSION ¶12 For the foregoing reasons, we affirm sentences. /s/ JON W. THOMPSON, Judge CONCURRING: /s/ PETER B. SWANN, Presiding Judge /s/ MICHAEL J. BROWN, Judge 9 defendant s
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