State v. Thompson ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CHRISTOPHER D. THOMPSON, Appellant.
No. 1 CA-CR 14-0393
FILED 9-22-2015
Appeal from the Superior Court in Maricopa County
No. CR 2013-444910-001
The Honorable John R. Ditsworth, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Adriana M. Zick
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
STATE v. THOMPSON
Decision of the Court
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Donn Kessler joined.
T H U M M A, Judge:
¶1 Christopher David Thompson appeals from his convictions
and resulting sentences, claiming he did not knowingly, intelligently and
voluntarily waive his right to a trial on allegations used to enhance and
aggravate his sentence. Because Thompson has not shown fundamental
error resulting in prejudice, his convictions and resulting sentences are
affirmed.
FACTS1 AND PROCEDURAL HISTORY
¶2 Thompson was charged with, and convicted of, theft of means
of transportation, a Class 3 felony (Count 1) and unlawful flight from a law
enforcement vehicle, a Class 5 felony (Count 2), each alleged to have been
committed in September 2013.2 In pre-trial filings, the State alleged various
aggravating circumstances; that the offenses were committed while
Thompson was on community supervision for a prior felony conviction and
that Thompson had seven historical non-dangerous felony convictions at
the time of the charged offenses.
¶3 After submission of the case to the jury following a five-day
trial but before the guilty verdicts were returned, defense counsel
stipulated that (1) the victims of Count 1 incurred financial harm; (2) the
charged offenses were committed while Thompson was on community
supervision (described as “parole”) for a felony conviction; and (3)
1On appeal, this court views the evidence in the light most favorable to
sustaining the conviction and resolves all reasonable inferences against
defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2, 212 P.3d 11, 12 (App. 2008).
2 Thompson also was charged with, but found not guilty of, registration or
license plate violation, a Class 2 misdemeanor (Count 3), a charge not at
issue in this appeal.
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STATE v. THOMPSON
Decision of the Court
Thompson had “been convicted of a felony within ten years immediately
preceding the date of the offense[s].”
¶4 At sentencing, the superior court noted the parties had agreed
to amend their stipulation to show that Thompson had two historical prior
felony convictions and, as a result, that he would be sentenced as a category
three repetitive offender. See Ariz. Rev. Stat. (A.R.S.) § 13-703(C) (2015).3
The superior court sentenced Thompson to a slightly aggravated sentence
of 11.75 years in prison for Count 1, and 6 years in prison for Count 2, to be
served concurrently with each other and concurrent to the case for which
he was on community supervision. Thompson properly was given 269 days
of presentence incarceration credit.
¶5 Thompson filed a timely notice of appeal. This court has
jurisdiction under the Arizona Constitution, Article 6, Section 9, and A.R.S.
§§ 12-120.21(A)(1), 13-4031 and -4033(A).
DISCUSSION
I. Thompson Has Not Shown Fundamental Error Resulting In
Prejudice As A Result Of The Superior Court’s Failure To Conduct
A Full Colloquy For His Prior Felony Convictions.
¶6 Thompson argues that he did not knowingly, intelligently
and voluntarily waive his right to have a trial on the aggravators and prior
convictions used to enhance and aggravate his sentences. Thompson failed
to make a timely objection, meaning review on appeal is limited to
fundamental error. See Ariz. R. Crim. P. 21.3(c); State v. Henderson, 210 Ariz.
561, 567 ¶ 19, 115 P.3d 601, 607 (2005). “Accordingly, [Thompson] ‘bears the
burden to establish that “(1) error exists, (2) the error is fundamental, and
(3) the error caused him prejudice.”’” State v. James, 231 Ariz. 490, 493 ¶ 11,
297 P.3d 182, 185 (App. 2013) (citations omitted).
¶7 Thompson contends the superior court failed to conduct a
proper colloquy before accepting his admission to the alleged priors. When
a defendant’s sentence is enhanced by a prior conviction, the existence of
the prior conviction must be found by the court. See State v. Lee, 114 Ariz.
101, 105, 559 P.2d 657, 661 (1976). Although such findings can follow an
evidentiary presentation, no hearing is required if the defendant admits to
the prior conviction. See State v. Hauss, 140 Ariz. 230, 231, 681 P.2d 382, 383
3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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STATE v. THOMPSON
Decision of the Court
(1984). To ensure the defendant’s due process rights, the admission must be
made knowingly, intelligently and voluntarily. See Boykin v. Alabama, 395
U.S. 238, 242–43 (1969). This same approach applies when defense counsel
stipulates to the existence of a prior for sentencing enhancement. State v.
Morales, 215 Ariz. 59, 61 ¶ 9, 157 P.3d 479, 481 (2007).
¶8 The superior court is required to conduct a colloquy when
accepting a defendant’s stipulation or admission to a prior conviction to
ensure the admission is made knowingly, intelligently and voluntarily. See
Ariz. R. Crim. P. 17.6. Here, it is undisputed that no such colloquy occurred.
Instead, at sentencing, the superior court stated “[t]he parties have agreed
that the stipulation from the prior minute entry will be increased to show
that the defendant has two prior felony convictions which are the first two
listed in the criminal history, is that correct, [defense counsel]?”
Thompson’s counsel replied, “Yes, Your Honor.” Although Thompson
affirmed that he had prior felonies and stipulated to the aggravating factors
on the record at the end of the trial, the superior court did not go through
the full colloquy set forth in Rule 17.2.
¶9 As noted by the State, presuming that was error categorized
as fundamental, the question then becomes whether Thompson has shown
resulting prejudice requiring resentencing. See State v. Morales, 215 Ariz. 59,
61-62 ¶¶ 10-11, 157 P.3d 479, 481-82 (2007). “[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 61-62, ¶ 11,
157 P.3d at 481-82 (citation omitted). When the record contains sufficient
evidence of the prior conviction, remand for resentencing is not necessary.
See id. at ¶ 13, 157 P.3d at 482. An unobjected-to presentence report showing
a prior conviction to which the defendant stipulated without the benefit of
a full colloquy conclusively precludes prejudice and remand. State v.
Gonzales, 233 Ariz. 455, 458 ¶ 11, 314 P.3d 582, 585 (App. 2013).
¶10 As applied, Thompson did not object to the presentence
report submitted to the superior court. The court stated “[t]he parties have
agreed that the stipulation from the prior minute entry will be increased to
show that the defendant has two prior felony convictions which are the first
two listed in the criminal history, is that correct, [defense counsel]?” to which
defense counsel responded, “Yes, Your Honor.” (Emphasis added). By
failing to object, Thompson waived any objection he had to the accuracy
and completeness of the presentence report, including the prior felony
convictions listed in the criminal history. See State v. Walden, 126 Ariz. 333,
336, 615 P.2d 11, 14 (App. 1980); State v. Nichols, 24 Ariz. App. 329, 330, 538
P.2d 416, 417 (1975). Moreover, the presentence report listed the same
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STATE v. THOMPSON
Decision of the Court
historical felony convictions listed in the sentencing minute entry, which
made Thompson a category three offender. On appeal, Thompson does not
suggest that the presentence report is inaccurate, that he was not convicted
of the felony convictions at issue or that the State would have been unable
to prove those convictions. See State v. Young, 230 Ariz. 265, 269 ¶ 11, 282
P.3d 1285, 1289 (App. 2012). Accordingly, Thompson has not shown
resulting prejudice regarding his historical felony convictions.
II. Thompson Has Not Shown Fundamental Error Resulting In
Prejudice As A Result Of The Superior Court’s Failure To Conduct
A Full Colloquy For His Community Supervision Status And
Aggravating Circumstances.
¶11 Thompson contends the superior court failed to conduct a
proper colloquy before accepting his admission of community supervision
statute and aggravating circumstances. See A.R.S. § 13-708(C). Here, the
court went through the aggravating factors.
THE COURT: And is he willing to admit that he
was on release at the time of the events in this
circumstance?
[DEFENSE COUNSEL]: Your Honor, he will
admit that he was parole.
THE COURT: That’s what I am talking about.
[DEFENSE COUNSEL]: Yes, sir.
THE COURT: Is that correct, Mr. Thompson?
THE DEFENDANT: Yes, sir.
THE COURT: Is it also true, sir, that you have
previously been convicted of a felony within ten
years immediately preceding the date of the
offense?
THE DEFENDANT: Yes, sir.
THE COURT: Do you admit that based on the
testimony of the victim and stipulation from
[victim’s wife] that there was a significant
amount of financial harm to them?
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STATE v. THOMPSON
Decision of the Court
THE DEFENDANT: Yes, sir.
When the court sentenced Thompson, it explicitly noted, “I am going to
give you an 11.75 year sentence which is six months more than the
presumptive based on his criminal history.” As discussed above, the
unobjected-to presentence report shows Thompson’s prior convictions and
community supervision status. Thompson does not contend that he was not
on community supervision. Similarly, the victim testified to significant
economic harm caused by Thompson’s conduct, and Thompson admitted
that harm directly to the court. Thompson does not contend anything to the
contrary. On this record, Thompson has not shown prejudice resulting from
fundamental error, nor has he shown that a remand is necessary. See
Gonzales, 233 Ariz. at 458 ¶ 12, 314 P.3d at 585. Accordingly, Thompson’s
convictions and resulting sentences are affirmed.4
CONCLUSION
¶12 Because Thompson has not shown fundamental error
resulting in prejudice, his convictions and resulting sentences are affirmed.
:ama
4 To the extent Thompson suggests the stipulations and admissions
constitute ineffective assistance of counsel, such a claim can only be raised
in post-conviction proceedings and not on direct appeal. State ex rel. Thomas
v. Rayes, 214 Ariz. 411, 415 ¶ 20, 153 P.3d 1040, 1044 (2007).
6