State v. Schoch ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
JOSHUA B. SCHOCH, Appellant.
No. 1 CA-CR 19-0028
FILED 5-25-2021
Appeal from the Superior Court in Maricopa County
No. CR2018-119196-001
The Honorable Julie Ann Mata, Judge
AFFIRMED IN PART; REMANDED IN PART
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Maricopa Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
STATE v. SCHOCH
Decision of the Court
MEMORANDUM DECISION
Chief Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Michael J. Brown and Judge D. Steven Williams joined.
S W A N N, Chief Judge:
¶1 Joshua B. Schoch appeals his sentences in this criminal case.
We remand for an evidentiary hearing on whether Schoch was prejudiced
by the superior court’s failure to conduct an appropriate colloquy before
accepting his counsel’s stipulation to prior convictions. We otherwise
affirm.
FACTS AND PROCEDURAL HISTORY
¶2 A jury convicted Schoch of resisting arrest and attempted
burglary. The jury found one aggravator with respect to each offense, and
defense counsel further stipulated that Schoch committed the offenses
while on probation and had six prior felony convictions. The superior court
accepted counsel’s stipulations without addressing Schoch, though Schoch
did later state that he was guilty of drug-related priors. The court deemed
Schoch a category three repetitive offender under A.R.S. § 13-703 and, after
considering his criminal history and probation status as aggravating
circumstances and balancing mitigating circumstances, imposed
presumptive concurrent sentences. The court also automatically revoked
Schoch’s probation and sentenced him to a consecutive presumptive prison
term. Schoch appeals.
DISCUSSION
¶3 Schoch’s sole argument on appeal is that the superior court
erred by not conducting a colloquy with him before accepting his counsel’s
stipulations regarding his prior convictions and probation status. Because
Schoch failed to object in the trial proceedings, we review for fundamental
error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). It is well-
established that the court must conduct a plea-type colloquy with the
defendant before accepting his counsel’s stipulation to prior convictions,
and that the absence of such a colloquy constitutes fundamental error. Ariz.
R. Crim. P. 17.6; State v. Morales, 215 Ariz. 59, 61–62, ¶¶ 8–10 (2007). The
state concedes, and we agree, that the superior court fundamentally erred
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STATE v. SCHOCH
Decision of the Court
by accepting defense counsel’s stipulation to the prior convictions without
first conducting any colloquy.
¶4 The parties dispute, however, whether the error prejudiced
Schoch. “[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.” Morales, 215 Ariz. at 62, ¶ 11. Where the record is
insufficient to prove the prior convictions or otherwise disprove prejudice,
we typically remand for a hearing to permit the defendant to demonstrate
prejudice. State v. Carter, 216 Ariz. 286, 290–91, ¶¶ 20–23 (App. 2007). That
is the case here. The record contains no indication that Schoch would have
agreed to the stipulation after being informed of his constitutional rights
and the consequences of their waiver. Nor does the record contain
adequate evidence to make a remand unnecessary. The record contains no
certified copies of the prior convictions. And though “an unobjected-to-
presentence report showing a prior conviction to which the defendant
stipulated without the benefit of a Rule 17.6 colloquy conclusively
precludes prejudice and a remand,” State v. Gonzales, 233 Ariz. 455, 458,
¶ 11 (App. 2013), the unchallenged presentence report in this case (styled
as a “Probation Violation Report”) referenced only one of the six
convictions at issue. Accordingly, we remand for an evidentiary hearing
on prejudice. If Schoch establishes prejudice at the hearing, the superior
court must vacate his sentences and resentence him, “although ‘the State is
entitled to the opportunity of proving the prior felony conviction[s].’” Id.
at ¶ 9 (citation omitted).
¶5 We affirm the court’s acceptance of the stipulation regarding
Schoch’s probation status. Regardless of whether a colloquy was required
with respect to that stipulation, the unchallenged Probation Violation
Report established that Schoch was on probation at the relevant time. Any
error therefore was not prejudicial. See id. at ¶ 11.
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STATE v. SCHOCH
Decision of the Court
CONCLUSION
¶6 We remand for an evidentiary hearing on whether Schoch
was prejudiced by the superior court’s failure to engage him in an
appropriate colloquy before accepting his counsel’s stipulation to prior
felony convictions, and, if appropriate, for resentencing. We otherwise
affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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