State v. Bailey

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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 DIVISION ONE FILED: 12/22/2011 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) ) Appellee, v. RICHARD JAMES BAILEY, Appellant. No. 1 CA-CR 11-0227 DEPARTMENT D MEMORANDUM DECISION (Not for PublicationRule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Maricopa County Cause No. CR2010-122760-001 SE The Honorable Susan M. Brnovich, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section By Liza-Jane Capatos, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Peg Green, Deputy Public Defender Attorneys for Appellant Phoenix T H O M P S O N, Presiding Judge ¶1 Defendant, Richard James Bailey, appeals from his convictions on one count of burglary in the third degree, a class 4 felony, and one count of possession of burglary tools, a class 6 felony. Defendant claims the trial court erred by sentencing him without finding that defendant had intelligently, knowingly and voluntarily waived his trial rights regarding a trial on the prior conviction. For the reasons that follow, we affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 At approximately 7:00 p.m. on May 1, 2010, two police officers conducted a security check of a partially demolished commercial building. demolition site. A During temporary the fence security surrounded check officers the saw defendant on his hands and knees leaning into a seven foot tall electrical box. ¶3 As an officer approached defendant, the officer noticed tools on the ground near defendant, including a saw and metal shears. Defendant told the officers that he planned on getting scrap metal and that he owned some of the nearby tools. The officers arrested defendant. ¶4 The state charged defendant with one count of third degree burglary, a class 4 felony, and one count of possession of burglary tools, a class 6 felony. guilty of both counts. concurrent mitigated A jury found defendant The trial court sentenced defendant to sentences of three years count one and one year in prison for count two. 2 in prison for ¶5 Defendant timely appealed. This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) §§ 12- 120.21(A)(1), 13-4031 and -4033 (2010). DISCUSSION ¶6 Prior to trial, the state alleged defendant had a conviction in 2007 for possession of drug paraphernalia, a class 6 undesignated offense. At sentencing, the trial court asked for information regarding to the prior. Defense counsel stated, [W]e re stipulating to the fact there s a prior conviction. In addition, the state produced a certified minute entry of the prior conviction including the defendant s thumbprint and a signature from the court, which the trial court admitted into evidence. ¶7 The trial court asked defendant if he understood he had the right to have a hearing on whether or not [he had] the prior conviction . . . at which the State would have to prove [the prior conviction] beyond a reasonable doubt? Then, the trial court asked if defendant wanted to waive, give up that right and just admit the prior that s submitted in this minute entry? Finally, the trial court asked defendant if he knew that the prior conviction increases the range of penalty . . . ? Defendant answered all of affirmative. 3 the court s questions in the ¶8 The trial court applied the prior felony as enhancement and sentenced defendant to mitigated sentences. an The trial court did not go through a formal colloquy consistent with Rule 17.6 of the Arizona Rules of Criminal Procedure. A formal colloquy includes the nature of the charge to which the plea is offered, the range of the possible sentence, the constitutional rights which the defendant foregoes, the right to plead not guilty, the limitations of direct appellate noncapital cases, and immigration consequences. review for Ariz. R. Crim. P. 17.2. ¶9 On appeal, defendant properly follow argues Rule 17 that the trial constitutes court s failure to fundamental error. Defendant specifies that the court s failure to follow Rule 17 permits a hearing on remand to show prejudice requiring re-sentencing. The state, however, contends that a remand is not necessary because defendant knowingly waived his right to a trial on the prior conviction and uncontested certified minute entry. ¶10 the record contains the We agree. In State v. Morales, 215 Ariz. 59, 61, ¶ 6, 157 P.3d 479, 481 (2007), our supreme court held that when a defendant s sentence is enhanced by a prior conviction, the conviction must be found by the court. Generally, this is accomplished through a hearing, although the requirement is obviated if the defendant admits to the prior conviction. 4 Id. at ¶¶ 6 7. If defense counsel stipulates to the prior conviction, the trial court must conduct a plea-type colloquy with defendant to determine if the admission is made voluntarily and intelligently. ¶11 Id. at ¶¶ 7 9. In Morales, our supreme court further held that the absence of an adequate Rule 17.6 colloquy does not automatically entitle a defendant to re-sentencing. at 482 83. Id. at 62, ¶ 11, 157 P.3d The defendant must establish prejudice by showing that he would not have admitted to the prior conviction had the trial court conducted the colloquy. shown, re-sentencing is not Id. required Even if prejudice is if uncontested evidence conclusively proving the defendant s prior conviction is in the record. Id. at ¶ 13. Sufficient evidence includes a certified copy of the minute entries of the former conviction. State v. Hauss, 140 Ariz. 230, 231, 681 P.2d 382, 383 (1984). ¶12 and the Here, defendant did not contest the prior conviction record contains sentencing of thumbprint, the the the prior cause certified minute conviction number and a entry including signature by officer of the superior court of Maricopa County. from the defendant s a judicial Accordingly, under these circumstances re-sentencing is not required.1 1 Defendant invites us to grant a limited remand pursuant to State v. Carter, 216 Ariz. 286, 165 P.3d 687 (App. 2007). Carter is inapposite to the facts of this case in light of our analysis based on Morales. 5 CONCLUSION ¶13 For the foregoing reasons, we affirm defendant s convictions and sentences. /s/ ________________________________ JON W. THOMPSON, Presiding Judge CONCURRING: /s/ ___________________________________ MAURICE PORTLEY, Judge /s/ ___________________________________ JOHN C. GEMMILL, Judge 6

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