State of Arizona v. Craig Michael Stefanovich

FILED BY CLERK
IN THE COURT OF APPEALS JUN -4 2013
STATE OF ARIZONA
COURT OF APPEALS
DIVISION TWO
DIVISION TWO

THE STATE OF ARIZONA, ) 2 CA-CR 2013-0102-PR
) DEPARTMENT A
Respondent, )
) OPINION
v. )
)
CRAIG MICHAEL STEFANOVICH, )
)
Petitioner. )
)

PETITION FOR REVIEW FROM THE SUPERIOR COURT OF MARICOPA COUNTY

Cause No. CR2009167023001SE

Honorable Jerry Bernstein, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

William G. Montgomery, Maricopa County Attorney
By Diane Meloche Phoenix
Attorneys for Respondent

Bruce Peterson, Office of the Legal Advocate
By Frances J. Gray Phoenix
Attorneys for Petitioner

M I L L E R, Judge.
¶1 Craig Stefanovich petitions this court for review of the trial court’s

summary denial of his of-right petition for post-conviction relief filed pursuant to Rule

32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused

its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007).

We grant review but deny relief.

¶2 Stefanovich pled guilty to having committed aggravated driving under the

influence (DUI) on November 17, 2007, based on his having previously committed

aggravated DUI within the preceding eighty-four months. See A.R.S. § 28-1383(A)(2).

He admitted having committed aggravated DUI on two previous occasions, February 8,

2001 and February 26, 2001. The trial court sentenced him to an enhanced, presumptive,

ten-year prison term.

¶3 Stefanovich then sought post-conviction relief, arguing that, at the time of

his previous DUI offenses, § 28-1383(A)(2) provided that a defendant commits

aggravated DUI if two or more previous DUI offenses had been committed within sixty

months and that the amendment to that statute increasing that range to eighty-four months

occurred more than sixty months after his previous DUI convictions. See 2000 Ariz.

Sess. Laws, ch. 153, § 3; 2006 Ariz. Sess. Laws, ch. 395, § 5. Thus, he reasoned, “the
applicable limitations period had expired” and his conviction of aggravated DUI based on

his previous offenses having been within eighty-four months “violate[d] the ex post facto

clauses of the state and federal constitutions” because he “had a vested limitations

defense” against the use of those prior offenses in relation to “subsequent DUI offenses.”

Based on the same reasoning, he additionally claimed that, because “criminal statutes of

limitations are jurisdictional,” the trial court “lacked jurisdiction to preside over

prosecution of the case.”

2
¶4 Stefanovich further claimed his decision to plead guilty and admit his

previous DUI convictions was not knowing, voluntary, and intelligent, arguing the trial

court had not complied with Rule 17.6, Ariz. R. Crim. P., because he had not been

informed during the plea colloquy that his previous offenses would serve both as the

basis for his aggravated DUI conviction and as historical prior felony convictions for

sentence enhancement. Last, he asserted his trial counsel had been ineffective in failing

to raise the above claims.

¶5 After hearing argument, the trial court summarily denied relief. The court,

relying on State v. Yellowmexican, 142 Ariz. 205, 688 P.2d 1097 (App. 1984), adopted

and approved by 141 Ariz. 91, 68 P.2d 983 (1984), concluded that the application of the

eighty-four month timeframe to Stefanovich’s previous DUI offenses did not implicate ex

post facto concerns and that issues about the statute’s retroactivity were therefore

“irrelevant.” The court also rejected Stefanovich’s claims that his plea was not knowing,

voluntary, and intelligent and that trial counsel had been ineffective.

¶6 On review, Stefanovich first reurges his claim that applying the eighty-four

month window to encompass his previous DUI convictions is an improper retroactive

application of the amended statute because he “had a vested limitations defense” against
the use of those convictions “prior to the change in the limitations period.” The United

States Supreme Court has observed that it has “repeatedly upheld recidivism statutes

‘against contentions that they violate constitutional strictures dealing with double

jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal

protection, and privileges and immunities.’” Parke v. Raley, 506 U.S. 20, 27 (1992),

quoting Spencer v. Texas, 385 U.S. 554, 560 (1967); see also Gryger v. Burke, 334 U.S.

728, 732 (1948) (“The sentence as a . . . habitual criminal is not to be viewed as either a

3
new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the

latest crime, which is considered to be an aggravated offense because a repetitive one.”).

Consistent with that view, we determined in Yellowmexican that a revision to the

predecessor statute to § 28-1383(A)(2), which changed the prior-conviction timeframe

from twenty-four to thirty-six months and increased the offense class from a

misdemeanor to a felony, did not violate provisions against ex post facto laws because

the revision did “not retroactively alter[]” the punishment for the defendant’s previous

DUI offenses. 142 Ariz. at 206, 208-09, 688 P.2d at 1098, 1100-01.

¶7 We acknowledge, however, that the court in Yellowmexican did not

expressly address the claim Stefanovich raises here. The defendant there argued that

“when he pleaded guilty to his two prior convictions, he was informed and understood

that a subsequent conviction within a twenty-four month period would only be a

misdemeanor” and that the “new legislation [therefore] has increased the punishment for

his” prior offenses. Id. at 206, 688 P.2d at 1098. In contrast, Stefanovich argues the

statutory period in effect at the time of his convictions—sixty months—had elapsed, and

he therefore had a vested interest in the application of that statutory period instead of the

new eighty-four month period.
¶8 But the Supreme Court long ago rejected the notion that recidivist

provisions, like § 28-1383(A)(2),1 are invalidly retroactive even when the recidivist

provision did not exist when the defendant committed the prior crimes. Gryger, 334 U.S.

at 732. Given that a legislature may implement a recidivist statute calling for increased

1
Relying on State v. Campa, 168 Ariz. 407, 411, 814 P.2d 748, 752 (1991),
Stefanovich suggests that our supreme court has determined § 28-1383(A)(2) is not a
recidivist statute and instead is a “classification” statute. Nothing in Campa suggests that
semantic distinction is meaningful here or that those descriptions are mutually exclusive.

4
punishment for new crimes based on crimes committed before the statute’s passage, it

necessarily follows that a recidivist defendant like Stefanovich does not and cannot have

a “vested” right that his previous convictions could not be used to increase his

punishment for new criminal acts.2 Irrespective of whatever revisions are made to the

recidivist statute, it is the statute in effect at the time of a defendant’s current offense

which controls. See O’Brien v. Escher, 204 Ariz. 459, ¶ 16, 65 P.3d 107, 111 (App.

2003); Yellowmexican, 142 Ariz. at 208, 688 P.2d at 1100 (statutory amendment “simply

put [defendant] on notice that if he committed a third DWI offense within thirty-six

months, his punishment for the third offense would be enhanced because of his prior

convictions”).

¶9 Stefanovich further argues that “applying the new 84 month limitation . . .

runs afoul of due process prohibitions against vague laws” because it “deprived [him] of

a complete defense that had attached before the law changed.” Because we have rejected

the premise that Stefanovich had some vested right in the application of a previous

version of the statute, we need not address the claim further. For the same reason, we

reject his argument that the trial court lacked jurisdiction because the felony charges were

“invalid” due to the expiration of the sixty-month period.
¶10 Finally, Stefanovich argues that the court erred in rejecting his additional

claims of ineffective assistance of counsel and that his plea was not voluntary, knowing,

2
Although Stefanovich cites no authority supporting his contention that he had a
“vested limitations defense,” we note that a defendant can have a vested interest in a
particular statute of limitations for an offense. See State v. Aguilar, 218 Ariz. 25, ¶ 12,
178 P.3d 497, 501 (App. 2008); State v. Gum, 214 Ariz. 397, ¶¶ 26-28, 153 P.3d 418,
425-26 (App. 2007). But, because § 28-1383(A)(2) addresses the punishment for a
current offense based on prior offenses, we find no meaningful parallel between the
interest a person may have against delayed prosecution and the situation presented here.

5
and intelligent. In regards to the voluntariness of his plea, Stefanovich claims the trial

court “failed to comply with Rule 17.6[, Ariz. R. Crim. P.]” in accepting his admission to

having two prior felony convictions and that “[t]he plea colloquy illustrates that the court,

the attorneys and [Stefanovich] were all confused by the basis for the Aggravated DUI

charge, the relationship of [his] prior Aggravated DUI convictions to the class 4 felony

charge and the relationship of [his prior convictions] to the sentencing range.”

¶11 Rule 17.2 describes the colloquy required before a trial court may accept a

defendant’s guilty plea, including that the defendant understand “[t]he nature and range

of possible sentence for the offense to which the plea is offered.” Ariz. R. Crim. P.

17.2(b). Rule 17.6 provides that a court must apply the same procedures before accepting

a defendant’s admission to a prior conviction. “[B]efore accepting a defendant’s

admission to a prior conviction, a trial court must advise the defendant of the nature of

the allegation, the effect of admitting the allegation 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, ¶ 36, 16 P.3d 214, 221 (App. 2000).

¶12 But, even assuming the plea agreement and colloquy violated Rules 17.2

and 17.6, that alone does not render Stefanovich’s plea involuntary. For a guilty plea to
be valid, it must be knowing and voluntary. Boykin v. Alabama, 395 U.S. 238, 243 n.5

(1969); see also Ariz. R. Crim. P. 17.1(b). But “[a] plea will be found involuntary only

where a defendant lacks information of ‘true importance in the decision-making

process.’” State v. Pac, 165 Ariz. 294, 295-96, 798 P.2d 1303, 1304-05 (1990), quoting

State v. Crowder, 155 Ariz. 477, 482, 747 P.2d 1176, 1181 (1987). That is, a plea will be

enforced unless the missing information “‘go[es] to [the] defendant’s essential objective

in making the agreement.’” Id. at 296, 798 P.2d at 1305, quoting Crowder, 155 Ariz. at

6
481, 747 P.2d at 1180; see also State v. Rosario, 195 Ariz. 264, ¶¶ 24-28 & 28, 987 P.2d

226, 230 (App. 1999) (determining plea involuntary if defendant “based his decision to

plead to the offenses based upon his [mistaken] belief that he could be paroled at one-half

of his incarceration terms”).

¶13 First, although Stefanovich identifies some confusion during his plea

colloquy whether his guilty plea to aggravated DUI was based on his prior convictions or

having a suspended driver license, that confusion was resolved during the colloquy and

thus cannot support a claim that his guilty plea was involuntary. Stefanovich’s brief

confusion as to why he had been charged with two offenses—driving under the influence

and driving with an alcohol concentration of .08 or greater—also does not support a

claim his plea was involuntary. The court clarified that he had pled guilty to only one

offense. We agree with Stefanovich, however, that nothing in the plea agreement or plea

colloquy expressly explained that the ten-year presumptive prison sentence described to

him was dependent on his having admitted two previous felony convictions nor that he

was entitled to require the state to prove the fact of those convictions.3 See Anderson,

199 Ariz. 187, ¶ 36, 16 P.3d at 221.

¶14 But Stefanovich signed addendums attached to his signed plea agreement
acknowledging previous aggravated DUI convictions. Those addendums included an

avowal by trial counsel that he had “explained” to Stefanovich “the ramifications of

pleading with a prior felony conviction” and that he had advised Stefanovich “of his

constitutional rights.” That discussion necessarily would have included the fact that

those prior felony convictions increased the sentencing range and that, absent his

3
Section 28-1383(A)(2) does not require the previous DUI convictions to have
been felonies. Thus, Stefanovich’s decision to plead guilty to that offense is not
dispositive of the claim he asserts here.

7
admission to those convictions, the state would have to prove them. Although

Stefanovich asserted in an affidavit filed below that he would have rejected the plea

“[h]ad [he] been advised of the effect of admitting prior felony convictions on the

available sentencing range and that . . . [his] constitutional rights included the right to

have sentencing enhancements proved,” he did not specifically assert in his affidavit that

counsel failed to advise him of those facts and his argument depends entirely on alleged

deficiencies in the plea agreement and colloquy.

¶15 Moreover, Stefanovich was correctly advised as to the sentence he faced

upon pleading guilty and was informed his admission to the prior convictions made his

new offense a “repetitive offense.” Additionally, nothing in the record suggests he had

the option of pleading guilty to only one offense but to decline to admit his previous

convictions. Thus, Stefanovich has not demonstrated that he “lack[ed] information of

‘true importance in the decision-making process,’” Pac, 165 Ariz. at 296, 798 P.2d at

1305, quoting Crowder, 155 Ariz. at 482, 747 P.2d at 1181, and therefore has not

established a colorable claim that his decision to plead guilty was not voluntary,

knowing, and intelligent.

¶16 As to Stefanovich’s claim of ineffective assistance of counsel, we conclude
he has waived this claim on review because he cites no relevant authority and does not

develop the argument in any meaningful way. See Ariz. R. Crim. P. 32.9(c)(1)(iv)

(petition for review shall contain “reasons why the petition should be granted”); cf. State

v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (claims waived for insufficient

argument on appeal); see also State v. Donald, 198 Ariz. 406, ¶ 21, 10 P.3d 1193, 1201

(App. 2000) (to warrant evidentiary hearing, Rule 32 claim “must consist of more than

conclusory assertions”).

8
¶17 For the reasons stated, although review is granted, relief is denied.

/s/ Michael Miller
MICHAEL MILLER, Judge

CONCURRING:

/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge

/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge

9