State v. Brown

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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. ANNETTE RAE BROWN, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 10/18/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 11-0034 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2009-178890-001 DT The Honorable Roger E. Brodman, Judge AFFIRMED IN PART, REMANDED IN PART Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Linley Wilson, Assistant Attorney General Attorneys for Appellee Phoenix Bruce F. Peterson, Legal Advocate By Consuelo M. Ohanesian, Deputy Legal Advocate Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 Brown timely appeals from her conviction and sentence for burglary in the third degree, a class four felony. Rev. Stat. ( A.R.S. ) § 13-1506 (2009). Ariz. After searching the record on appeal and finding no arguable question of law that was not frivolous, Brown s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking fundamental error. this court to search the record for This court granted counsel s motion to allow Brown to file a supplemental brief in propria persona, but Brown did not do so. ¶2 Our review revealed the superior court s failure to advise Brown of her constitutional rights, under Arizona Rule of Criminal Procedure ( Rule ) 17.6, before she stipulated to the existence of two prior felony convictions, may have constituted fundamental error. 109 S. Ct. 346, Pursuant to Penson v. Ohio, 488 U.S. 75, 83, 351, 102 L.Ed. 300 (1988), we ordered the parties to file supplemental briefs on whether the deficient Rule 17.6 remand. colloquy constituted fundamental error requiring For the reasons discussed below, we affirm the jury s guilty verdict, but remand for a determination of prejudice at sentencing. 2 FACTS AND PROCEDURAL BACKGROUND 1 ¶3 In 2009, Brown worked as a property inspector for M.G., a subcontractor whose business included inspecting vacant properties for banks when borrowers vacated homes or failed to make payments. surveillance On December officers, 22, Brown and 2009, her watched by co-defendant, undercover Whigham, pulled a truck up to T.M. s vacant home and walked around the outside with a clipboard. When the couple moved the truck to a lot behind the house, the detective watched them leave T.M. s fenced backyard detective alerted with a another wheelbarrow and patio officer a marked in stopped the truck with Brown and Whigham inside. table. The vehicle, who The officers found the wheelbarrow and table inside the truck. ¶4 At trial, Brown admitted she entered the yard and took the wheelbarrow and table. include cleaning debris, 2 Although her job description did not she testified M.G. had given her permission to take debris, because cleaning crews would later remove the property anyway. 1 We view the facts in the light most favorable to sustaining the jury s verdict and resolve all reasonable inferences against Brown. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 Throughout the trial, witnesses distinguished debris from an owner s personal property. They defined debris as property left behind outside of houses, which would later be taken to the dump by clean-up crews. In the case of personal property of greater value, a clean-up crew would take it to storage for the owner to retrieve. 3 ¶5 As noted, the jury found Brown guilty of burglary in the third degree. felony convictions At sentencing, Brown admitted to two prior which were not prior historical felony convictions, but triggered an enhanced sentencing range. A.R.S. § 13-703(B)(1) (2009). The superior court sentenced Brown to the non-dangerous, mitigated offenses, term 2.25 for years in prison, with category-two 111 days repetitive pre-sentence incarceration credit and eligibility for community supervision. DISCUSSION I. Sentencing ¶6 the Consistent with State v. Carter, the State concedes superior court s failure to advise Brown of her constitutional rights as part of the Rule 17.6 colloquy 3 was fundamental error, and we agree. See 216 Ariz. 286, 292, ¶ 27, 165 P.3d 687, 693 (App. 2007). ¶7 The State also concedes, and we agree, this error is one for which remand on the issue of prejudice is appropriate. At trial, Brown did not testify regarding any prior convictions, nor does the record show she was aware of her constitutional rights in this context. Further, the State never entered certified copies of prior convictions on the record at trial or 3 Rule 17.6, applying Rule 17.2 requirements to stipulations regarding priors, requires the superior court to conduct a colloquy to ensure a defendant understands, among other things, the constitutional rights foregone by stipulating to priors. See Ariz. R. Crim. P. 17.2. 4 sentencing. Based on the state of the record, conclusively say the error was non-prejudicial. we cannot See State v. Morales, 215 Ariz. 59, 62, ¶ 10, 157 P.3d 479, 482 (2007); Carter, 216 Ariz. at 290, ¶ 18, 165 P.3d at 691. Thus, the proper Brown remedy is remand for a hearing in which demonstrate she was prejudiced by the improper colloquy. may If she demonstrates the error was prejudicial, the court must vacate her sentence and resentence her. Carter, 216 Ariz. at 292, ¶ 27, 165 P.3d at 693. ¶8 Although the applicable sentencing statute and range will depend on the resolution of the Rule 17.6 issue on remand, we note the sentencing minute entry contains an error. sentencing A.R.S. transcript reflects § 13-703(B)(1), dangerous, category-two (I), the to superior sentence repetitive court Brown offender. relied as The The a on non- sentencing minute entry, however, refers to A.R.S. § 13-702, the sentencing statute for sentencing first-time issue, the offenses. superior Because court may we remand correct the this discrepancy in the event it does not vacate her sentence. II. The Jury s Verdict ¶9 We find no reversible error in the jury s verdict. See Leon, 104 Ariz. at 300, 451 P.2d at 881. ¶10 Brown received a fair trial. She was represented by counsel at all stages of the proceedings and was present at all 5 critical stages. The evidence presented substantial and supports the verdict. at trial was The jury was properly comprised of eight members, and the court properly instructed the jury on the elements of the charge, Brown s presumed innocence, the State s burden of proof, and the necessity of a unanimous verdict. CONCLUSION ¶11 we After reviewing the record and supplemental briefing, affirm Brown s conviction, but, because the superior committed fundamental error when it did not conduct the required Rule 17.6 colloquy, determination of we remand prejudice. to If the Brown superior shows court prejudice, superior court must resentence her. /s/ PATRICIA K. NORRIS, Judge CONCURRING: /s/ PETER B. SWANN, Presiding Judge /s/ DANIEL A. BARKER, Judge 6 for a the

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