State v. Villa

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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. ) ) ADRIAN ALEXANDER VILLA, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 05-25-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0139 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-113902-001 DT The Honorable Lisa M. Roberts, Judge Pro Tempore AFFIRMED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals Section/Capital Litigation Section And Sherri Tolar Rollison, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Stephen R. Collins, Deputy Public Defender Attorneys for Appellant Phoenix O R O Z C O, Judge ¶1 Adrian Alexander Villa (Defendant) appeals his convictions and sentences for one count of theft of means of transportation, a class three felony; one count of possession of burglary tools, a class six felony; one count of criminal trespass in the first degree, a class six felony; and one count of criminal damage, a class six felony. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 On March 1, 2008, the victim reported his 2007 Chevy Tahoe stolen. representative, Following Officer C. the of the guidance of Phoenix Police an OnStar Department located the stolen vehicle shortly after the crime was reported. Officer C. witnessed Defendant sitting in the stolen vehicle s driver s seat. commands. Defendant exited the vehicle and Officer C. gave Defendant subsequently ran from Officer C. and was later located hiding in the attic of a nearby vacant house. Defendant did not have the owner s permission to enter the home. ¶3 of Despite repeated commands, Defendant did not come out his hiding place inside the attic. In order to remove Defendant from the attic, the police were forced to remove vents, damage ductwork, remove portions of drywall and use two canisters of pepper spray. Officer C. found a lanyard containing numerous keys in the vacant house. his 2007 Chevy Tahoe. Among the keys was the victim s key to Officer C. impounded the remaining keys because they included a jiggle key, a type of key used to steal vehicles. 2 ¶4 During closing argument, Defendant s counsel stated, [w]ell, strangely enough, [Defendant] and I are about to tell you, [o]kay, vote guilty, allegation of count four. regarding the criminal damage In addressing count three, criminal trespass, Defendant s counsel stated [o]nce again, yep, he s guilty on that. Nevertheless, Defendant s counsel did argue Defendant was not guilty on the remaining counts, theft of means of transportation and possession of burglary tools. ¶5 The jury convicted Defendant on all four counts. The trial court sentenced him to the presumptive term on each count. Those terms were to run concurrently, with the longest sentence being 11.25 years. Defendant filed a timely notice of appeal and we have jurisdiction 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 and -4033.A (2010).1 DISCUSSION ¶6 Defendant counsel s raises concession of one issue guilt on on two appeal: counts whether during his closing argument was the equivalent of a guilty plea, therefore requiring a colloquy pursuant to Boykin v. Alabama, 395 U.S. 238 (1969) and Arizona Rule of Criminal Procedure 17. object to his counsel s concession 1 Because Defendant did not at trial, we review for We cite to the current version of the applicable statutes because no revisions material to this decision have since occurred. 3 fundamental error. 115 P.3d 601, State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 607 (2005). Under this standard of review, Defendant must establish both that fundamental error exists and that the error in his case caused him prejudice. Id. at ¶ 20. Federal Constitutional Requirements ¶7 A admits that plea 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. Boykin, 395 U.S. at 242. When a defendant pleads guilty, several constitutional rights are waived, including the privilege against self-incrimination, the right to trial by jury, the right to proof of guilt beyond a reasonable doubt, and the opportunity to confront accusers. State v. Allen, 223 Ariz. 125, ___, ¶ 13, 220 P.3d 245, 247 (2009). Accordingly, to satisfy due process concerns, [a trial court] must ensure that the defendant understands the rights being waived and enters the plea agreement knowingly and voluntarily. ¶8 Id. Nevertheless, stipulations to facts combined with not guilty pleas are simply not equivalent to a guilty plea for Boykin purposes, necessary to a even if conviction the and stipulation even if it is to might all elements appear to a reviewing court that the stipulation serves little purpose. Id. at ___, ¶ 14, 220 P.3d at 247-48 (citation omitted). Ultimately, [t]he constitution does not compel a full Boykin 4 colloquy in the absence of a formal guilty plea. at 248. Id., 220 P.3d In this case, Defendant did not enter a formal guilty plea; rather, Defendant s concessions were only offered during closing argument.2 As a result, Defendant did not waive any of the constitutional rights protected by Boykin. Thus, a Boykin colloquy was not required. Rule 17 and the Tantamount to a Guilty Plea standard ¶9 Defendant established that argues his the trial concession voluntarily pursuant to Rule 17. court was made should have knowingly and However, nothing in Rule 17 requires a trial court to engage a defendant in a formal colloquy absent a guilty or no-contest plea. Allen, 223 Defendant Ariz. in this at ___, case ¶ 20, entered a See Ariz. R. Crim. P. 17; 220 P.3d plea at of not 249. Because guilty on all charges, the trial court was not required to perform a Rule 17 colloquy with Defendant. ¶10 Nevertheless, relying on State v. Allen, 220 Ariz. 430, 207 P.3d 683 (App. 2008), vacated in part, 223 Ariz. 125, 220 P.3d 245 (2009), Defendant contends his counsel s concession during closing argument was the equivalent of a guilty plea and 2 The trial court properly instructed the jury that what is said in closing arguments is not evidence. See State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006). Additionally, we presume that the jury followed the trial court s instructions. Id. 5 therefore required a Rule 17 advisement from the trial court. However, after the filing of the opening brief in this case, the Arizona Supreme Court vacated in part this Court s holding in Allen. 223 Ariz. 125, 220 P.3d 245. ¶11 [a]t In one doing time, so, the Arizona Arizona cases Supreme extended Court the stated Boykin that colloquy requirement to a stipulation that was tantamount to a guilty plea. Id. at ___, ¶ 15, 220 P.3d at 248. However, the Arizona Supreme Court explicitly rejected the tantamount to a guilty plea standard as unworkable. Id.; see State v. Avila, 127 Ariz. 21, 23, 617 P.2d 1137, 1139 (1980). Accordingly, we reject Defendant s argument as it relates to our vacated holding in Allen. We find no error in the trial court s failure to engage Defendant in a Rule 17 colloquy. CONCLUSION ¶12 For the reasons previously stated, we affirm Defendant s convictions and sentences. /S/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ____________________________________ DIANE M. JOHNSEN, Judge /S/ ____________________________________ JON W. THOMPSON, Judge 6

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