Appeal from the Superior Court in Maricopa County No. CR2010-155604-001 The Honorable Steven P. Lynch, Commissioner
Arizona Attorney General's Office, Phoenix By Adele Ponce Counsel for Appellee.
Maricopa County Public Defender's Office, Phoenix By Paul J. Prato Counsel for Appellant.
Judge Donn Kessler delivered the opinion of the Court, in which Presiding Judge Andrew W. Gould and Judge Michael J. Brown joined.
¶1 Dina Marie Gonzales appeals from the sentence imposed after she was convicted of shoplifting. Gonzales argues that the trial court erred by accepting her counsel's stipulation to two prior felony convictions without complying with the requirements of Arizona Rule of Criminal Procedure ("Rule") 17.6. Applying the principles of State v. Morales, 215 Ariz. 59, 157 P.3d 479 (2007), we hold that the trial court's failure to conduct a Rule 17.6 colloquy, although fundamental error, did not result in prejudice and, therefore, does not require a remand. The stipulation, combined with the unobjected-to presentence report reflecting the same prior convictions, negates any prejudice Gonzales might have otherwise suffered as a result of the trial court's failure to conduct a colloquy.
FACTUAL AND PROCEDURAL HISTORY
¶2 After a three-day jury trial in absentia, Gonzales was convicted of shoplifting with two or more predicate offenses, a class 4 felony. Gonzales requested a super-mitigated sentence, but the court sentenced her to a slightly mitigated sentence of eight years' imprisonment. The trial court found that Gonzales's family background, drug addiction, and shoplifting addiction constituted mitigating circumstances, but that Gonzales's "criminal history" was an aggravating circumstance.
¶3 At the sentencing hearing, after receipt of the sentencing report showing two prior felonies, Gonzales's counsel indicated Gonzales's willingness to stipulate to two prior felony convictions. At sentencing, Gonzales did not object to the report. Instead, her counsel first told the court that "[Gonzales] takes responsibility and in fact she has agreed to stipulate to her priors." Second, defense counsel stated that "[w]e recognize that by [Gonzales] stipulating to two priors that she's in a drastically different sentencing range." Gonzales never personally acknowledged her willingness to stipulate to the two prior felony convictions at any hearing, nor did the parties file a written stipulation. In its minute entry memorializing the sentencing proceedings, the trial court stated "that the Defendant has previously stipulated to having two (2) prior felony convictions." The presentence report included a prior criminal history reflecting the two prior felonies stated in the sentencing order.
¶4 Gonzales timely appealed. On Gonzales's motion, we remanded the case to the trial court for the sole purpose of clarifying whether the court had complied with Rule 17.6 by providing a colloquy with Gonzales before accepting her counsel's stipulation. On remand, the trial court found that it had not conducted a Rule 17.6 colloquy with Gonzales so "[t]here was no proper admission of the prior felony convictions." Hence, the trial court had "improperly sentenced the Defendant to a mitigated term with two prior felony convictions."
¶5 We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A)(1) (2010).
ISSUE ON APPEAL AND STANDARD OF REVIEW
¶6 Gonzales argues the trial court committed fundamental error by accepting her counsel's stipulation to two prior felony convictions without conducting a Rule 17.6 colloquy. Gonzales seeks a remand to the trial court for a determination of prejudice, and ultimately for resentencing if prejudice is found. The State argues Gonzales is barred from successfully arguing she was prejudiced by the lack of a colloquy because she has not explicitly asserted on appeal that had she been given a colloquy, she would not have admitted or stipulated to the prior convictions. Alternatively, the State argues that because ...