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
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Appeal from the Superior Court in Maricopa County
The Honorable Sherry K. Stephens, Judge
AFFIRMED
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Memorandum Decision of the Court of Appeals, Division One
Filed Aug. 1, 2006
AFFIRMED
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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
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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.
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W. Scott Bales, Justice
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CONCURRING:
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Ruth V. McGregor, Chief Justice
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Rebecca White Berch, Vice Chief Justice
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Michael D. Ryan, Justice
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Andrew D. Hurwitz, Justice
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