State v. Rowan

OPINION

MOELLER, Vice Chief Justice.

STATEMENT OF THE CASE

A jury convicted Louis Arnold Rowan (defendant) of keeping or maintaining a house of prostitution in violation of A.R.S. § 13-3208(B), and of transporting a person for purposes of prostitution in violation of A.R.S. § 13-3210. Defendant then admitted a prior felony conviction, waiving a jury trial on that allegation. At sentencing, the trial court found that defendant had committed the current offenses while on probation. Defendant received two concurrent three-year terms which, because of his probationary status when the crimes were committed, must be served on a flat time basis. The court of appeals reversed his conviction for unlawful transportation and affirmed his conviction for keeping or maintaining a house of prostitution. That court remanded for further proceedings, holding that the trial court had failed fully to advise the defendant of the effect of his admission of a prior felony.

We granted the state’s petition for review of that portion of the opinion holding that the trial court had inadequately advised defendant of the effect of his admission to the prior felony. We also granted defendant’s cross-petition for review, which raised two issues: whether there was sufficient evidence on the charge of maintaining a house of prostitution, and whether the trial court abused its discretion by admitting into evidence a newspaper containing an ad for massages that led to defendant’s arrest. On full review of the record, we agree with the court of appeals’ disposition of those two issues and now dismiss the cross-petition as improvidently granted. We have jurisdiction pursuant to Ariz. *115Const, art. 6, § 5(3), Ariz.R.Crim.P. 31.19, and A.R.S. § 12-120.24.

We hold that defendant’s admission to a prior felony conviction was voluntarily entered after the trial court properly advised defendant of the consequences of the admission.

FACTS

After the jury returned guilty verdicts, the defendant indicated his desire to admit the allegation of a prior conviction. The trial court, proceeding pursuant to Ariz. R.Crim.P. 17.6, explained to defendant that such an admission would preclude probation, increase the range of sentencing from 1 to 2.5 years to 2 to 4 years, and require that at least half of the sentence actually imposed be served. Defendant waived his right to a jury trial and admitted the prior felony conviction. The trial court accepted the admission. At sentencing, the trial court also found that defendant was on probation at the time he committed the current offenses. Thus, pursuant to A.R.S. § 13-604.02(B), the court imposed concurrent, presumptive sentences, which defendant must serve day-for-day. One of those convictions was set aside by the court of appeals and is no longer at issue.

ISSUE PRESENTED FOR REVIEW

Whether defendant’s waiver of a jury trial and admission of a prior felony conviction was involuntary because the trial court did not advise defendant of the consequences if the trial court also found that defendant was on probation when the present offense was committed.

ADMISSION OF PRIOR FELONY

Defendant argued in the court of appeals that his admission to a prior felony was faulty because the trial court did not advise him of the consequences of a possible finding that he was on probation at the time he committed the instant offense. The court of appeals agreed and held that the trial court violated Rule 17.2(b) because defendant was not told of the “statutorily mandated day-for-day sentence he faced if the court found ... that he was on probation at the time of the instant offenses.” State v. Rowan, 174 Ariz. 285, 290, 848 P.2d 864, 869 (App.1992). The court of appeals remanded the case for an evidentiary hearing to determine whether defendant understood the effect of a later finding of probationary status.

Although the court of appeals found State v. Rushing, 156 Ariz. 1, 749 P.2d 910 (1988), distinguishable, we find it disposi-tive. In Rushing, the defendant waived his right to a jury trial and admitted to the state’s allegation of prior felony conviction. 156 Ariz. at 3, 749 P.2d at 912. The trial court carefully and accurately explained how the admission, if accepted, would increase the range of sentence. On appeal, defendant contended that his admission was faulty because the trial court had not explained that any sentence he received would be consecutive to any sentence he received on his probation revocation if he was found to have committed the new crime while on probation. A.R.S. § 13-604.02(B).1

Rushing held, however, that the admission to the prior felony was unrelated to the trial court’s separate finding that the defendant was on probation. 156 Ariz. at 4, 749 P.2d at 913. Additionally, the prior felony conviction allegation was triable to a jury; defendant’s status as a probationer was a separate issue triable by the judge.

The court of appeals’ reliance on Rule 17.2(b) is misplaced. Rule 17.2(b) requires the court, before accepting a plea, to inform the defendant of the “nature and range of possible sentence for the offense to which the plea is offered, including any special conditions regarding sentence, parole, or commutation imposed by statute.” (Emphasis added.) Rowan admitted a prior felony and was properly and fully advised of the consequences of that admission. It *116was the court’s independent finding that Rowan was on probation at the time of the instant offense, not his admission of a pri- or felony conviction, that triggered A.R.S. § 13-604.02(B), requiring that the sentence be served day-for-day. See Rushing, 156 Ariz. at 3, 749 P.2d at 12. The finding that defendant was on probation at the time of the instant offense was “inapplicable, and indeed irrelevant, to the [prior felony conviction] proceedings before the trial court[;] any discussion of these matters would have added nothing to defendant’s intelligent, knowing, and voluntary waiver. Conversely, the absence of discussion detracted nothing from that waiver.” State v. Henderson, 165 Ariz. 186, 187-88, 797 P.2d 725, 726-27 (App.1990).

The court of appeals also cited State v. James, 126 Ariz. 353, 615 P.2d 650 (App.1980), and State v. Rodriguez, 126 Ariz. 104, 612 P.2d 1067 (App.1980), which are distinguishable. Both cases held the trial court violated Rule 17.2(b) by not informing the defendant of special statutory consequences of pleading guilty to a dangerous offense. James, 126 Ariz. at 354, 615 P.2d at 651; Rodriguez, 126 Ariz. at 106, 612 P.2d at 1069. In each case, the statutory conditions were imposed because of the nature of the offense to which defendant pleaded guilty. See A.R.S. § 13-604(G). Rule 17.2(b) properly applies in those cases. Conversely, in this case as in Rushing, the special conditions result from defendant’s probation status, not from the prior felony conviction that defendant admitted.

To restate and clarify our holding in Rushing, the prior felony conviction finding is independent from and unrelated to the finding that defendant was on probation when he committed the instant offense, even if the prior conviction and the probation relate to the same offense.

CONCLUSION

The trial court properly advised the defendant of the consequences of his admission to a prior felony conviction. Defendant’s waiver of his right to a jury trial and his admission to that allegation was voluntary. That portion of the court of appeals opinion entitled “Admission of Prior Conviction” is vacated, as is its order remanding for an evidentiary hearing. The cross-petition for review is dismissed.

CORCORAN and MARTONE, JJ., concur.

. The mandatory consecutive sentencing provisions of A.R.S. § 13-604.02(B) are not implicated in the present case because defendant’s probation apparently was merely terminated without any additional in futuro sentence. See record, p. 124.