State v. Morales

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-06-0374-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 05-0408
MAURICIO MORALES, )
) Maricopa County
Appellant. ) Superior Court
) No. CR2004-021279-001 DT
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Sherry K. Stephens, Judge

AFFIRMED
________________________________________________________________

Memorandum Decision of the Court of Appeals, Division One
Filed Aug. 1, 2006

AFFIRMED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Randall M. Howe, Chief Counsel
Criminal Appeals Section
Diane M. Acosta, Assistant Attorney General
Attorneys for State of Arizona

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Tennie B. Martin, Deputy Public Defender
Attorneys for Mauricio Morales
________________________________________________________________

B A L E S, Justice

¶1 Arizona Rule of Criminal Procedure 17.6 provides that

“[w]henever a prior conviction is charged, an admission thereto by
the defendant shall be accepted only under the procedures of this

rule, unless admitted by the defendant while testifying on the stand.”

Rule 17 requires the judge to engage in a plea-type colloquy with the

defendant to ensure that the admission is voluntary and intelligent.

See Ariz. R. Crim. P. 17.2 -.3. We hold that Rule 17.6 also requires

such a colloquy when defense counsel stipulates to the existence of

a prior conviction charged for purposes of sentence enhancement.

FACTS AND PROCEDURAL BACKGROUND

¶2 A jury convicted Mauricio Morales of hindering

prosecution, a class five felony. The State alleged several prior

convictions, making him subject to an enhanced sentence under Arizona

Revised Statutes (“A.R.S.”) section 13-604(C) (2001). This statute

provides that a defendant convicted of a class five felony “who has

two or more historical prior felony convictions shall be sentenced

to” a presumptive five-year prison term. Morales’s counsel

acknowledged in a presentence memorandum that Morales had three prior

felony convictions.

¶3 At sentencing, the prosecutor said he believed Morales had

“basically admitted that he does have the priors,” but said that he

was prepared to offer certified copies of the prior convictions, which

had been submitted in prior hearings, if necessary. When the judge

asked if defense counsel desired a hearing, she replied that she

thought there was a stipulation on the record to the prior

convictions, but she had not been able to find it. She acknowledged

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not having previously requested a hearing on the prior convictions.

The trial court did not question Morales about his admission of the

prior convictions, and Morales, on the advice of his attorney, said

nothing at the hearing. The trial court sentenced Morales to the

presumptive five-year prison term for a defendant with two or more

prior historical convictions.

¶4 On appeal, Morales argued that he was sentenced as if he

had stipulated to the fact of the prior convictions and waived a

hearing when he had not done so. Because Morales did not object to

the alleged error below, the court of appeals reviewed for fundamental

error. In a split decision, the court affirmed the sentence on the

grounds that Morales had failed to demonstrate prejudice.

Dissenting, Judge Sult concluded that Rule 17.6 should apply in these

circumstances and that a remand was necessary to determine whether

Morales had been prejudiced.

¶5 We granted review because the proper application of Rule

17.6 presents an important question of state law. Our jurisdiction

is based on Article 6, Section 5(3), of the Arizona Constitution and

A.R.S. § 12-120.24 (2003).

DISCUSSION

¶6 When a defendant’s sentence is enhanced by a prior

conviction, the existence of the conviction must be found by the

court. See State v. Lee, 114 Ariz. 101, 105, 559 P.2d 657, 661 (1976).

This is generally accomplished through a hearing in which the state

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“offer[s] in evidence a certified copy of the conviction . . . and

establish[es] the defendant as the person to whom the document

refers.” Id. A prior conviction may be proved by other means,

however, if “the state can show that its earnest and diligent attempts

to procure the necessary documentation were unsuccessful for reasons

beyond its control and that the evidence introduced in its stead is

highly reliable.” State v. Hauss, 140 Ariz. 230, 231, 681 P.2d 382,

383 (1984). Our rules of criminal procedure contemplate that, whether

based on certified copies or other evidence, the trial court will

determine the existence of prior convictions as a factual finding

after a hearing. See id.; Lee, 114 Ariz. at 105, 559 P.2d at 661.

¶7 The need for a hearing may be obviated, however, if the

defendant admits to the prior conviction. Hauss, 140 Ariz. at 231,

681 P.2d at 383. Rule 17.6 declares that unless the defendant makes

this admission while testifying, a plea-type colloquy is required.

The issue here is whether a stipulation to the fact of a prior

conviction also requires such a colloquy.

¶8 As is the case with a guilty plea, when a defendant admits

to a prior conviction for purposes of sentence enhancement, he waives

certain constitutional rights, including the right to a trial.

Therefore, to preserve the defendant’s due process rights, the

admission must be made voluntarily and intelligently. See Boykin v.

Alabama, 395 U.S. 238, 242-43 & n.5 (1969); Wright v. Craven, 461 F.2d

1109, 1109 (9th Cir. 1972) (holding that an admission to a prior

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conviction that will enhance a defendant’s sentence is the functional

equivalent of a guilty plea, and “may not be accepted unless the

defendant understands the consequences of the admission”). Rule 17.6

was written with this policy in mind; it is a prophylactic rule

designed to protect a defendant’s rights by ensuring that the Boykin

directive is fulfilled when a defendant admits a prior conviction.

¶9 This same policy applies when defense counsel stipulates

to the existence of a prior conviction for purposes of sentence

enhancement. In this context, the stipulation and admission are

equivalent: Both eliminate the need for formal proof of the prior

conviction by the state, waive the defendant’s constitutional rights,

and result in an enhanced sentence. The only real distinction is that

an admission is made by the defendant, while a stipulation can be

entered into by defense counsel. This distinction is immaterial here.

A defendant whose counsel concedes the fact of the prior conviction

is entitled to no less protection than a defendant who makes the

concession himself. Accordingly, we hold that Rule 17.6 applies

equally to an admission by a defendant and a stipulation by defense

counsel to the existence of a prior conviction.

¶10 In the instant case, the trial court failed to conduct the

colloquy required under Rule 17.6 and therefore committed error.

Because Morales failed to object, we review solely for fundamental

error. State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601,

607 (2005). Under fundamental error review, the defendant bears the

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burden of persuasion to show both that the error was fundamental and

that it caused him prejudice. Id. ¶ 20. A complete failure to afford

a Rule 17.6 colloquy is fundamental error because a defendant’s waiver

of constitutional rights must be voluntary and intelligent. Cf. id.

at 568 ¶ 25, 115 P.3d at 608 (finding that sentencing procedure that

denied defendant Fifth and Sixth Amendment rights to have certain

facts found by jury beyond reasonable doubt involved fundamental

error).

¶11 The absence of a Rule 17.6 colloquy, however, does not

automatically entitle a defendant to a resentencing. Morales must

also establish prejudice, and we have previously noted that “[t]he

showing a defendant must make varies, depending upon the type of error

that occurred and the facts of a particular case.” Id. ¶ 26. The

colloquy serves to ensure that a defendant voluntarily and

intelligently waives the right to a trial on the issue of the prior

conviction. Given this purpose, we conclude that prejudice generally

must be established by showing that the defendant would not have

admitted the fact of the prior conviction had the colloquy been given.

Cf. United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)

(adopting similar standard for defendant to obtain reversal of guilty

plea for failure to afford plea colloquy required by federal rules).

¶12 We reject the State’s suggestion that a defendant should

also be required to show the absence of the prior conviction in order

to establish fundamental error. Such a requirement would undermine

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the prophylactic purpose of Rule 17.6 by implying that a failure to

give the colloquy would be without consequence, and the state would

be relieved of its burden of proving the prior conviction, in all but

the rare case in which the defendant could show no prior conviction

exists.

¶13 If a defendant shows that he would not have admitted the

prior conviction but for the Rule 17.6 error, the result in most cases

will be a resentencing hearing at which the state will be put to its

burden of proving the prior conviction. Morales, nonetheless, is

not entitled to resentencing in this case. Even if we assume that

he could establish that he would not have admitted his prior

convictions if he had been given a Rule 17.6 colloquy, there is no

need for a further evidentiary hearing. Copies of Morales’s prior

convictions were admitted at a December 20, 2004, pretrial hearing.

Neither party challenges the authenticity of these copies, and thus

evidence conclusively proving his prior convictions is already in the

record. In these circumstances, there would be no point in remanding

for a hearing merely to again admit the conviction records.

¶14 For the foregoing reasons, we affirm the sentence.

_______________________________________
W. Scott Bales, Justice

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CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

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