State v. Lopez

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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. ) ) MELISSA ANN LOPEZ, ) ) Appellant. ) ) ) __________________________________) DIVISION ONE FILED: 03/09/2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-CR 09-0387 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-129963-001 DT The Honorable Janet E. Barton, Judge REMANDED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Liza-Jane Capatos, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Christopher V. Johns, Deputy Public Defender Attorneys for Appellant Phoenix S W A N N, Judge ¶1 Melissa Ann Lopez ( Defendant ) appeals from her conviction and sentence for theft of means of transportation, a violation of A.R.S. § 13-1814 and a class three felony. For the reasons set forth below, we conclude that the superior court committed fundamental error at sentencing and we remand for a hearing to determine whether Defendant was prejudiced and whether resentencing is required. FACTS AND PROCEDURAL HISTORY ¶2 In October 2008, a jury theft of means of transportation. found Defendant guilty of In December 2008, the court held a dual sentencing and probation revocation hearing. At the start of the hearing, the court entered judgment on the jury s verdict and found that, by virtue of the conviction, Defendant had violated the terms of her probation felonies in separate 2005 cases. sentencing. for two class six The court then proceeded to Defense counsel stipulated to the existence of two prior felonies and the court accepted the stipulation without inquiry.1 Accordingly, the court sentenced Defendant to an enhanced presumptive term of 11.25 years of imprisonment for the 2008 offense.2 The court revoked Defendant s probation for each 1 Counsel did not identify the two prior felonies to which she stipulated. On this record, we cannot infer the identities. 2 Theft of means of transportation is a class three felony. A.R.S. § 13-1814(D) (Supp. 2009). Generally, the presumptive 2 of the previously presumptive identified one-year terms 2005 of offenses imprisonment, and to imposed be served concurrently with the sentence for the 2008 offense. ¶3 The hearing reconvened later the same day. The court observed that one of the 2005 offenses, which it had previously characterized as a class six felony, was actually a class one misdemeanor. vacated its Accordingly, order for sentencing that offense Defendant to only the court imprisonment and ordered a terminal disposition for time served. The court did not prior discuss whether Defendant had any other felony convictions and did not revisit the issue of sentencing for the 2008 offense. ¶4 Defendant timely appeals. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A) (Supp. 2009). DISCUSSION ¶5 Because Defendant did not object below to the absence of a colloquy, we review only for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). sentence for a class three felony is 3.5 years of imprisonment. A.R.S. § 13-702(D) (Supp. 2009) (previously A.R.S. § 13-701(C) (Supp. 2008)). But when a defendant has two or more prior felony convictions, the presumptive sentence is enhanced to 11.25 years of imprisonment. A.R.S. § 13-703(C), (J) (Supp. 2009) (previously A.R.S. § 13-604(D) (Supp. 2008)). 3 Defendant bears the burden to establish both that fundamental error exists and that it caused her prejudice. appeal, Defendant contends that the Id. at ¶ 20. superior court On committed fundamental error by accepting her counsel s stipulation to two prior felony convictions without first conducting pursuant to Ariz. R. Crim. P. ( Rule ) 17.6. a colloquy Defendant further contends that a remand to the superior court is necessary to determine whether she was prejudiced by the error. The State concedes that the court committed fundamental error but argues that under the facts of this case a remand would be futile. A. Fundamental Error ¶6 Before a criminal defendant s prior convictions may be considered for purposes of sentence enhancement, the court must find that the convictions exist. State v. Morales, 215 Ariz. 59, 61, ¶ 6, 157 P.3d 479, 481 (2007). Generally, the State must present evidence of the convictions at a hearing. Id. A hearing is not required, however, if the defendant admits to the convictions or if defense counsel stipulates to the convictions. Id. at ¶¶ 7, 9. If the defendant admits or if counsel stipulates, Rule 17.6 requires that the court conduct a pleatype colloquy with the defendant to ensure that the defendant is voluntarily and intelligently waiving her constitutional right 4 to have the State prove the convictions.3 Id. at ¶¶ 7-9. A failure to conduct the colloquy pursuant to the rule constitutes fundamental error. ¶7 Here, the superior court conducted no colloquy before accepting defense convictions. B. Id. at ¶ 10. counsel s stipulation to Defendant s prior The court therefore committed fundamental error. Prejudice ¶8 Fundamental error caused by a court s failure to conduct the Rule 17.6 colloquy will not warrant resentencing unless the defendant establishes prejudice. Id. at ¶ 11. Generally, the defendant must show that had the colloquy taken place, she would not have admitted to the prior convictions. Id. Because evidence to that effect is not usually found in the record on appeal, determination remedy. of a remand prejudice to the generally superior will be court the for a appropriate State v. Carter, 216 Ariz. 286, 291, ¶ 23, 165 P.3d 687, 692 (App. 2007). ¶9 But remand is not required when the record on appeal contains sufficient evidence to establish the prior conviction. See Morales, 215 Ariz. at 62, ¶ 13, 157 P.3d at 482. apparently contends that because of the dual The State nature of the hearing, Defendant s complete conviction records in the two 2005 3 The exception to this rule is when the defendant admits to the convictions while testifying. Id. at ¶ 7. 5 cases that gave rise to the probation violations were necessarily before the court. According to the State, those records four would reveal a class felony and a class six undesignated felony conviction in addition to the offenses for which probation violations were found. ¶10 outside Rule the 17.6 record does not, before however, us and permit take us judicial evidence of convictions from different cases. to reach notice of State v. Geeslin, 221 Ariz. 574, 578-79, ¶¶ 16-17, 212 P.3d 912, 916-17 (App. 2009). Here, actually had the before record it at does not show sentencing the described in the State s appellate brief. part of the record before us. whether the conviction court records Those records are not At the hearing, the court did not state that it was referring to such records, and we cannot infer that fact from the transcript. Moreover, the court s statements demonstrated its knowledge of only one prior felony conviction the class six felony for which probation was revoked. On this record, therefore, we cannot conclude that a rehearing would be futile. CONCLUSION ¶11 We remand to the superior court to permit it to conduct a hearing at which Defendant may demonstrate that she was prejudiced by the court s error. 6 If prejudice is shown, Defendant s sentence must be vacated and she must be resentenced. /S/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /S/ ____________________________________ PATRICIA K. NORRIS, Presiding Judge /S/ ____________________________________ DANIEL A. BARKER, Judge 7

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