State v. Zeigler
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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.
MARK JOSEPH ZEIGLER,
Appellant.
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1 CA-CR 10-0591
DIVISION ONE
FILED: 09/15/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
DEPARTMENT C
MEMORANDUM DECISION
(Not for Publication –
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR 2009-144295-001 SE
The Honorable Steven P. Lynch, Commissioner
AFFIRMED
Thomas C. Horne, Attorney General
Phoenix
By
Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
and Suzanne M. Nicholls, Assistant Attorney General
Attorneys for Appellee
James Haas, Maricopa County Public Defender
By Terry Reid, Deputy Public Defender
Attorneys for Appellant
Phoenix
H A L L, Judge
¶1
Mark Joseph Zeigler (defendant) appeals from the trial
court’s
imposition
of
enhanced
sentences
following
his
convictions for one count of burglary in the second degree, one
count of kidnapping, six counts of sexual assault, and one count
of aggravated assault.
For the reasons that follow, we affirm
defendant’s sentences.
FACTS AND PROCEDURAL BACKGROUND
¶2
The undisputed facts relevant to the issue on appeal
are as follows.
On July 15, 2009, defendant was charged by
indictment with one count of burglary in the second degree, a
class three felony, one count of kidnapping, a class two felony,
eight counts of sexual assault, class two felonies, two counts
of aggravated assault, class three dangerous felonies, one count
of assault, a class one misdemeanor, and one count of assault, a
class three misdemeanor.
The State also alleged that defendant
had nine historical prior felony convictions.
¶3
A nine-day trial began on May 3, 2010.
On the seventh
day of trial, defendant testified on his own behalf.
defendant
admitted
that
he
had
previously
been
On direct,
convicted
three felonies:
Q: I’m going to ask you some questions, and
I want you to tell me if they are true or
not about your history. Have you been found
guilty before of some felonies?
A:
Yes, I have.
Q:
Let me read to you some case numbers.
In Case Number 2002-019844, were you charged
with a crime on November 14, 2002, convicted
of that crime on March 3rd of 2003, in
Maricopa County, and did you have an
attorney assist you?
2
of
A:
Yes, I did.
Q: And you believe that was for a charge of
misconduct involving weapons?
A:
Correct.
Q:
In case 98-130643, I believe you were
arrested on April 23, ‘97, and convicted on
March 16, ’99, again, in Maricopa County,
again, with the help of an attorney, for the
charge of trafficking in stolen property?
A:
Yes, I was.
Q:
And in Case Number 98-039009, on
December 11, ’97, you were arrested and
convicted April 20th, ’98, for a vehicular
theft.
Did that happen to you in Maricopa
County?
A:
Yes, it did.
Following the completion of defendant’s direct testimony, the
trial court recessed for the day.
day,
the
State
commenced
its
When trial resumed the next
cross-examination.
Defendant
responded to the prosecutor’s first question by stating that he
had “made a couple of lies” during his direct testimony and he
wanted to “clarify” his statements before the State proceeded.
The trial court informed defendant that he could clarify his
statements when his attorney had the opportunity to ask him
additional questions following his cross-examination.
Defendant
responded that he would not proceed until he was permitted to
“clear the matter up.”
The trial court then excused the jury
and allowed defense counsel to confer with defendant.
Defense
counsel then informed the court that defendant would not proceed
3
with cross-examination unless he was permitted to make a direct
statement to the jury.
if
he
refused
to
The trial court informed defendant that,
submit
to
cross-examination,
his
testimony
would be stricken and his attorney would not be permitted to use
it during his closing argument.
admonishment,
testimony
defendant
would
be
stated
stricken
submit to cross-examination.
Following the trial court’s
that
and
he
understood
affirmed
that
he
that
his
would
not
The trial court then summoned the
jury and informed them that defendant had exercised his right
not
to
testify
testimony
in
considering
and
its
it
the
court
entirety
when
they
was
and
therefore
they
deliberated.
were
striking
precluded
Defense
counsel
his
from
then
rested and the matter was submitted to the jury.
¶4
The
jury
found
defendant
guilty
of
one
count
of
burglary in the second degree, one count of kidnapping, six
counts of sexual assault, one count of aggravated assault, and
one count of assault.
After the jury returned its verdicts,
defendant asked if he could be sentenced immediately.
The trial
court informed defendant that the sentencing hearing would not
occur
until
June
21,
2010,
which
would
allow
time
for
the
presentence report to be prepared and for defense counsel to
“explain your options to you.”
Defendant inquired whether he
could “just waive it and agree to whatever the prosecution wants
to give me” and the trial court explained that it was required
4
to
follow
certain
procedures,
including
waiting
for
the
presentence report.
¶5
At that point, the prosecutor asked the trial court
whether defendant’s testimony, which was stricken “for purposes
of jury deliberations,” could be used to establish defendant’s
historical prior felony convictions.
that
it
would
need
to
research
The trial court responded
the
issue
and
defendant
interjected that he was willing to stipulate to having two prior
felony convictions.
¶6
At the June 21, 2010 sentencing hearing, the trial
court sentenced defendant to the presumptive, enhanced sentence
for each count based on his “testimony and [] admissions [at]
trial
.
.
.
with
two
prior
felony
convictions.”
Defendant
timely appealed, 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)(1) (2010).
DISCUSSION
¶7
As his sole issue on appeal, defendant contends that
the trial court erred by failing to conduct a colloquy, pursuant
to Arizona Rules of Criminal Procedure (Rule) 17.6, to ensure
that
his
stipulation
to
two
prior
voluntary, and intelligent.
5
convictions
was
knowing,
¶8
Before a defendant’s sentence may be enhanced by prior
conviction, “the existence of the conviction must be found by
the court.”
State v. Morales, 215 Ariz. 59, 61, ¶ 6, 157 P.3d
479, 481 (2007).
The State may prove the prior conviction by
providing a certified copy of the conviction and establishing
that the defendant is the person to whom the document refers.
Id.
“The need for a hearing may be obviated, however, if the
defendant admits to the prior conviction.”
Id. at 61, ¶ 7, 157
P.3d at 481.
¶9
As
set
forth
in
Rule
17.6,
“[w]henever
a
prior
conviction is charged, an admission thereto by the defendant
shall
be
accepted
only
under
the
procedures
of
this
rule
[requiring the judge to engage in a plea-type colloquy with the
defendant], unless admitted by the defendant while testifying on
the stand.”
Thus, applying the plain meaning of the Rule, a
trial court need not engage a defendant in a plea-type colloquy
when the defendant has admitted a prior conviction during his
trial testimony.
235
P.3d
1045,
See State v. Martin, 225 Ariz. 162, 165, ¶ 11,
1048
(App.
2010)
(explaining
that
procedural
rules are interpreted according to their plain meaning unless
the language is ambiguous or would create an absurd result).
¶10
nature
Here, defendant admitted the date, jurisdiction, and
of
the
offense
for
three
historical
convictions during his direct examination.
6
prior
felony
Although the trial
court struck defendant’s testimony from the jury’s consideration
after
he
refused
to
submit
to
cross-examination,
defendant’s
admissions remained valid and could be considered by the court
for sentencing purposes.
See Wallace v. State, 5 Ariz.App. 377,
379, 427 P.2d 358, 360 (1967) (explaining that a defendant’s
admission to the truth of an allegation of a prior conviction is
“conclusive in all subsequent proceedings”); see also People v.
Rush,
382
N.E.2d
testimony
stricken
nonetheless
proceeding).
on
630,
be
as
used
634
(Ill.
App.
incompetent
to
impeach
1978)
in
the
one
(holding
that
proceeding
may
witness
in
a
later
Therefore, the trial court did not err by relying
defendant’s
trial
admissions
of
historical
prior
felony
convictions to enhance his sentences.
CONCLUSION
¶11
For
the
foregoing
reasons,
we
affirm
sentences.
/s/
PHILIP HALL, Judge
CONCURRING:
/s/
MICHAEL J. BROWN, Presiding Judge
/s/
PATRICIA K. NORRIS, Judge
7
defendant’s
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