State v. Erives
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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, v. MAURICIO ERIVES, ) ) Appellee, ) ) ) ) ) ) Appellant. ) ) 1 CA-CR 09-0694 DEPARTMENT D DIVISION ONE FILED: 11-30-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-158108-001 DT The Honorable John R. Ditsworth, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Katia Méhu, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Spencer D. Heffel, Deputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Presiding Judge ¶1 five Mauricio Erives ( Appellant ) appeals his sentence to years imprisonment for unlawful flight from a law enforcement vehicle. erred when it Appellant contends that the trial court enhanced his sentence with a prior felony conviction in finding that Appellant committed the offense in violation of his probation. For the reasons that follow, we affirm Appellant s sentence. I. Factual and Procedural History ¶2 We construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant. State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998)(citation omitted). 16, 2008, an Arizona Department of Public On September Safety officer observed Appellant driving a vehicle with illegally dark tint on its windshield. When the officer attempted to make a traffic stop, Appellant fled. terminated for eventually located, After a high-speed chase, the pursuit was reasons of public however, and safety. Appellant The was vehicle was apprehended nearby. ¶3 Appellant was convicted of unlawful flight from a law enforcement vehicle after a one-day jury trial. The trial court found Appellant had two historical prior felony convictions for sentencing purposes. One of those prior convictions was for solicitation to commit burglary. 2 The trial court further found Appellant committed the instant offense while on probation for the prior conviction of solicitation to commit burglary. 1 ¶4 The court made these findings after Appellant attempted to stipulate to the existence of the prior conviction for solicitation and the resulting probationary status. presentence hearing, Appellant s counsel informed the At a trial court, [t]o avoid his probation officer coming back and having to return to court, we will agree that Mr. Erives does have that conviction [for solicitation to commit burglary] and he was on probation at that time. in a discussion in The trial court then engaged Appellant which Appellant identified his prior conviction for solicitation to commit burglary; confirmed the class of felony; confirmed the cause number of the case; stated that he was represented by counsel during the proceedings leading up to his prior conviction; and confirmed the date of the offense and the date of the conviction. The court did not, however, ask Appellant any other questions nor inform Appellant of any of his rights. The State offered no further proof of this prior conviction or Appellant s probationary status. 1 The existence of two historical prior felony convictions enhanced the maximum available sentence to six years. A.R.S. § 13-604(C)(2001). The finding that Appellant was on probation made the presumptive term of five years imprisonment the minimum term that could be imposed. A.R.S. § 13604.02(B)(2001). 3 ¶5 Appellant was sentenced to a presumptive term of five years imprisonment based in part on the existence of the two historical prior felony convictions and his probationary status. The sentence was ordered to run concurrently with the sentences imposed in two sentence. We other matters. have Appellant jurisdiction now pursuant appeals to his Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(2003), 13-4031 (2010) and 134033 (2010). II. Discussion ¶6 proof Appellant argues on appeal that there was insufficient he had a prior conviction for solicitation to commit burglary and/or that he was on probation for that offense at the time he committed the instant offense. Appellant argues his admissions to the trial court were invalid because the trial court failed to conduct a plea-type colloquy that complied with the requirements of Arizona Rules of Criminal Procedure 17. Appellant further argues there was otherwise insufficient proof of either factor to permit their consideration for sentencing purposes. ¶7 provide Arizona that Rules before of Criminal accepting a Procedure defendant s 17.2 and admission 17.6 to a prior conviction, a trial court must advise the defendant of the nature of the allegation, the effect of admitting the allegation 4 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). A similar colloquy must take place before a trial court may accept a defendant s admission that an offense was committed while on any type of release for another offense. Id. Such a colloquy is required whether the defendant personally admits to the prior or defense counsel stipulates to the prior. State v. Morales, 215 Ariz. 59, 60, ¶ 1, 157 P.3d 479, 480 (2007). ¶8 While Appellant raised no objection below, the State concedes that the failure of the trial court to conduct a Rule 17 colloquy constituted fundamental error. 2 See Id. at 61-62, ¶ 10, 157 P.3d at 481-82 (holding that the failure to conduct a Rule 17 error). colloquy, where required, constitutes fundamental The existence of fundamental error does not, however, automatically entitle Appellant to a remand. Even where fundamental error exists from the failure to conduct a Rule 17 colloquy, remand is not required unless and until a defendant 2 We note that the court also failed to comply with the requirements in Ariz. R. Crim. P. 17.2 that it apprise Appellant of the due process rights being waived by stipulating to prior convictions and probation violations. State v. Carter, 216 Ariz. 286, 289, ¶ 13, 165 P.3d 687, 690 (App. 2007). Appellant, however, did not raise this issue at trial or on appeal, and accordingly, we do not address it here. See State v. Roseberry, 210 Ariz. 360, 372 n.10, ¶ 65, 111 P.3d 402, 414 n.10 (2005) 5 proves the failure to conduct the colloquy caused prejudice. Id. at 62, ¶ 11, 157 P.3d at 482 (requiring that defendant prove that he would not have admitted the fact conviction had the colloquy been given. ). of the prior Further, where a trial court fails to conduct a Rule 17 colloquy, remand is not required where the record disproves any prejudice. See State v. Carter, 216 Ariz. 286, 291, ¶ 22, 165 P.3d 687, 692 (App. 2007). ¶9 Appellant is not entitled to a remand because the record clearly establishes Appellant suffered no prejudice from the trial court s failure to conduct a Rule 17 colloquy. Regardless of the parties insufficient attempt to stipulate to the existence of Appellant s prior conviction and probationary status, the record establishes Appellant had a prior conviction for solicitation to commit burglary, a class 5 felony, and that he was on probation for that offense at the time he committed the instant instant offense. matter The presided same over judge presided revocation the who of probation for solicitation to commit burglary. revoked Appellant s committed the probation instant offense in part while on over the Appellant s The same judge because probation. Appellant The same judge then imposed a presumptive term of 1.5 years imprisonment for solicitation to commit burglary. part of a consolidated sentencing All of this took place as hearing in which the same judge imposed sentence in the instant case literally moments 6 later. 3 In short, the judge who imposed sentence in this case presided over the prior conviction and probation that Appellant now claims could not be considered by that same judge moments later. ¶10 The fact the trial court revoked probation and imposed a sentence prison in the other matter as part of the same sentencing proceeding in the instant case, and did so in part because of established Appellant s the conviction existence of that in the prior probationary status for sentencing purposes. 4 instant case, conviction and Where, as here, the record conclusively establishes the existence of a prior conviction, the defendant is not entitled to remand. Morales, 215 Ariz. at 62, ¶ 13, 157 P.3d at 482. The same holds true when a the record conclusively establishes defendant probation at the time an offense was committed. was on Under such 3 Appellant does not argue his probation could not be revoked or that he could not be subsequently sentenced to a term of imprisonment. 4 Because the probation revocation and prison sentence for solicitation to commit burglary were consolidated with sentencing in this case, we also take judicial notice of the June 27, 2007 minute entry in State v. Erives, Maricopa County Cause Number CR2006-005237-002 DT, in which Appellant was found guilty of solicitation to commit burglary and placed on three years probation. See State v. Valenzuela, 109 Ariz. 109, 110, 506 P.2d 240, 241 (1973)(finding that the court of appeals may take judicial notice of the records of the superior court). (http://www.courtminutes.maricopa.gov/docs/Criminal/062007/m2737 339.pdf) 7 circumstances, hearing[.] there would be no point in remanding for a Id. III. Conclusion ¶11 Because we find no prejudice, we affirm Appellant s sentence. ________________/S/__________________ LAWRENCE F. WINTHROP, Presiding Judge CONCURRING: ______________/S/__________________ PATRICIA K. NORRIS, Judge ______________/S/__________________ PATRICK IRVINE, Judge 8
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