Not for Publication Rule 111(c), Rules of the Arizona Supreme
Appeal from the Superior Court in Maricopa County No. CR2011-159225-002 The Honorable Jo Lynn Gentry-Lewis, Judge
Arizona Attorney General's Office, Phoenix By Andrew Reilly Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix By Kathryn L. Petroff Counsel for Appellant
Judge Sally Schneider Duncan delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.
DUNCAN, Judge [*]
¶1 Johnny Lee Tremble, Jr. appeals his sentence for possession of marijuana with two prior felony convictions. Tremble first argues that the superior court did not comply with Rule 17.6 of the Arizona Rules of Criminal Procedure when it accepted defense counsel's stipulation to his prior felony convictions and sentenced him without engaging in the required colloquy. He also argues the superior court did not properly grant him pre-incarceration credit. As we explain below, we agree with Tremble and therefore remand to the superior court for proceedings consistent with this decision.
FACTS AND PROCEDURAL BACKGROUND
¶2 Tremble was on probation when he was convicted and sentenced for possession of marijuana. After defense counsel stipulated to two prior felony convictions,  Tremble was sentenced to a period of incarceration of three years for the possession offense and a concurrent sentence of one year for a probation violation. The amount of pre-incarceration credit to be given to Tremble was not stated on the record.
I. Rule 17.6 Colloquy At Sentencing
¶3 When a defendant admits or stipulates to the existence of a prior conviction, he waives certain constitutional rights and becomes eligible for an enhanced sentence without the requirement for formal proof by the State. State v. Morales, 215 Ariz. 59, 61, ¶¶ 8-9, 157 P.3d 479, 481 (2007). But unless the defendant admits the existence of the prior felony convictions while testifying on the stand, the court is required to engage in a colloquy to determine if the defendant's admission is voluntary and intelligent. Ariz. R. Crim. P. 17.2; Ariz. R. Crim. P. 17.6; Morales, 215 Ariz. at 60, ¶ 1, 157 P.3d at 480.
¶4 Tremble argues that the superior court failed to engage in the colloquy required by Rule 17.6 after accepting defense counsel's stipulation to his prior felony convictions. Tremble did not object at sentencing, and therefore, we review solely for fundamental error. Morales, 215 Ariz. at 61, ¶ 10, 157 P.3d at 481 (citing State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005)). "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." Morales, 215 Ariz. at 61, ¶ 10, 157 P.3d at 481. Here, the superior court neither advised Tremble of his constitutional rights nor discussed the consequences of defense counsel's stipulation to the prior felony convictions. The State also does not dispute that the court failed to engage in the required colloquy. Because we have no way of knowing whether Tremble's waiver of his constitutional rights by defense counsel's stipulation was voluntary and intelligent, we conclude that the error is fundamental.
¶5 Next we turn our attention to whether Tremble has met his burden of persuasion to show that the error caused him prejudice. "[P]rejudice generally must be established by showing that the defendant would not have admitted the fact of the prior conviction had the colloquy been given." Id. at 62, ¶ 11, 157 P.3d at 482. Evidence that the defendant would not have stipulated to the prior conviction had the colloquy taken place is unlikely to be in ...