State v. Hansel

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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, ) ) Respondent, ) ) v. ) ) LONNIE EDWARD HANSEL, ) ) Petitioner. ) ) ) __________________________________) DIVISION ONE FILED: 03-23-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 09-0165 PRPC DEPARTMENT A Maricopa County Superior Court No. CR 2007-151611-002 DT DECISION ORDER Lonnie Edward Hansel petitions this court to review the denial of post-conviction relief. Presiding Judge Maurice Portley, and Judges Lawrence F. Winthrop and Margaret H. Downie, have considered this petition for review and, although we find the trial court erred, we grant review but deny relief for the reasons stated. FACTS AND PROCEDURAL HISTORY We discuss only the facts necessary to our disposition of this matter. convictions. kidnapping, conviction; Hansel has at least four prior felony While on felony release, Hansel pled guilty to a class theft of two means felony, of with one transportation, prior a class felony three 1 CA-CR 09-0165 PRPC (Page 2) felony, with one prior felony conviction; and criminal trespass in the first degree, a class six felony. Hansel stipulated to concurrent but aggravated sentences for the kidnapping and theft offenses. He also admitted two aggravating circumstances: (1) that he committed the offense in the expectation of the receipt of pecuniary gain, and (2) that the victim of the offense was over eighty years of age. (13) (Supp. 2009). 1 of other prior Ariz. Rev. Stat. § 13-702(C)(6) and The State agreed to dismiss the allegation felonies, and counts 2, 3, 4 and 5 in the indictment. The trial court accepted the plea and later sentenced Hansel according to its terms. Hansel then timely filed post- conviction relief proceedings, 2 and raised two claims. argued that his plea was basis invalid to because establish the there prior Hansel was an insufficient factual felony conviction. He also argued that his plea was invalid because the court did not separately advise Hansel regarding the rights 1 The statute was renumbered to A.R.S. § 13-701(D)(6) and (13), but the former and current statutes have not been amended in any material way. 2 For pleading defendants like Hansel, the post-conviction relief of-right proceeding is the functional equivalent of a direct appeal. State v. Ward, 211 Ariz. 158, 161-62, ¶ 9, 118 P.3d 1122, 1125-26 (App. 2005). 1 CA-CR 09-0165 PRPC (Page 3) and consequences circumstances. supplied an of The his State adequate admission argued factual to that basis the the for aggravating extended the prior record felony conviction, and that regardless of the trial court s advice to Hansel, the record conclusively demonstrated Hansel s plea was a knowing, voluntary and intelligent plea. The trial court agree[d] with the arguments contained in the State s response, and summarily dismissed. Hansel then timely filed this petition for review. DISCUSSION On review, Hansel maintains that his plea is invalid because the trial court failed to establish a sufficient factual basis for the prior felony conviction, and that the court did not adequately advise him regarding the rights and consequences of his admission to the aggravating circumstances. The trial court did not establish a sufficient factual basis for the prior felony at the change of plea hearing. Arizona Supreme Court has held, however, that even The when a factual basis is not set forth in the record of the change of plea hearing, such a deficiency in the record is technical, not reversible, error when the extended record establishes a factual 1 CA-CR 09-0165 PRPC (Page 4) basis for a guilty plea. State v. Rodriguez, 112 Ariz. 193, 194-95, 540 P.2d 665, 666-67 (1975); accord State v. Mendiola, 23 Ariz. App. 251, 252-54, 532 P.2d 193, 194-96 (1975), approved and adopted in 112 Ariz. 165, 540 P.2d 131 (1975). The supreme court also has noted that the factual basis may be ascertained from the record including pre-sentence reports, preliminary hearing reports, admissions of the defendant, and from other sources. State v. Varela, 120 Ariz. 596, 598, 587 P.2d 1173, 1175 (1978) (emphasis added). notice of the records of the This court may take judicial superior court. State v. Valenzuela, 109 Ariz. 109, 110, 506 P.2d 240, 241 (1973). The records of the Maricopa County Superior Court show that Hansel was convicted of theft of means of transportation, a class 3 felony, committed on December 31, 1997, in cause number CR2002-009515, and that Hansel was represented by counsel, all as stated in the plea agreement. Because Hansel does not contend that he does not have a prior felony, or that this prior felony is invalid, his claim establishes technical error only, and does not entitle him to relief. 194-95, 540 P.2d at 666-67. Rodriguez, 112 Ariz. at 1 CA-CR 09-0165 PRPC (Page 5) As factors, to his Hansel separately agreement correctly advise him of to argues the admit the two trial rights consequences of the admissions. to he aggravating court waived, failed and of to the State v. Brown, 212 Ariz. 225, 230-31, ¶¶ 24-26, 129 P.3d 947, 952-53 (2006) (admissions to aggravating factors must be warned Washington, 542 U.S. 296 (2004)). Hansel s prior failure to felonies properly as pursuant him is and thus harmless felonies are exempt from Blakely s jury right. Jersey, 530 U.S. 466 (2000), Blakely v. Nevertheless, the court found aggravators advise to and the the court s error. Prior Apprendi v. New existence of a single Blakely exempt aggravating factor, permits the sentencing judge to find and consider additional factors relevant to the imposition of a sentence up to the maximum prescribed in that statute. State v. Martinez, 210 Ariz. 578, 585, ¶ 26, 115 P.3d 618, (2005). In because, once 625 harmless other the words, trial any court error found is completely Hansel s prior felonies as an aggravating circumstance, Hansel had no Blakely jury right on any other aggravators, and any admissions became unnecessary/irrelevant, as the trial court was free to find any other aggravators. Cf. State v. Molina, 211 Ariz. 130, 136, ¶ 1 CA-CR 09-0165 PRPC (Page 6) 23, 118 P.3d 1094, 1100 (App. 2005) (any error is harmless error because, once appellate court finds one aggravating factor, the court need not address other aggravating circumstances). Finally, we note Hansel stipulated to aggravated sentences and received exactly the sentences he bargained for. Thus, he clearly had knowledge and a full understanding of the consequences of his plea agreement. Cf. State v. Morales, 215 Ariz. 59, 62, ¶¶ 11-13, 157 P.3d 479, 482 (2007) (trial court s failure to consequences engage of defendant admitting in plea prior colloquy convictions of rights after and trial, although error, not reversible). CONCLUSION For the reasons stated, Hansel s claims established only technical error and he is not entitled to relief. Therefore, we grant review, but deny relief. /S/ ________________________________ MAURICE PORTLEY, Presiding Judge

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