State Ex Rel. Romley v. Galati , 193 Ariz. 437 ( 1999 )

OPINION

NOYES, Judge

¶ 1 Defendant, real party in interest Russell K. Petersen, was charged with two counts of aggravated driving under the influence (“DUI”), in violation of Arizona Revised Statutes Annotated (“A.R.S.”) sections 28-697(A)(1) and (2) (1996) (renumbered as 28-1383(A)(1) and (2) (1998)). The aggravating element of Count 1 was that the new DUI was committed when Petersen’s driver’s license was suspended, canceled, revoked or refused, or restricted. The aggravating element of Count 2 was that Petersen had two prior DUI convictions within the previous sixty months.

¶2 Petersen offered to stipulate to the aggravating elements on condition that the jury not hear about them. In essence, Petersen wanted to plead “guilty” to the aggravating elements and “not guilty” to the DUI elements. Petersen agreed that, if the jury found him guilty of DUI, the court could enter judgment on the two counts of aggravated DUI. The State argued that the aggravating elements could not be kept from the jury.

¶ 3 The trial court found that the prejudice from the aggravating elements was obvious, and that, if Petersen admitted those elements, the State had no need to present evidence of them. “Here,” found the trial court, “there is no probative value to the evidence once the defendant has admitted it.” The court ruled that it would conduct a “modified guilty plea proceeding” in which Petersen could knowingly, intelligently, and voluntarily admit the aggravating elements. If the trial court accepted the admission, trial would proceed on the DUI elements, and the jury would know nothing about the aggravating elements.

¶ 4 The State filed a petition for special action to obtain relief from this order. We accepted jurisdiction because the petition raises an issue of law that is of statewide importance. We grant relief because the trial court’s order, as reasoned as it is, is contrary to controlling Arizona authority. We begin, however, with a case that arguably supports the trial court.

¶ 5 State v. Leonard, 151 Ariz. 1, 725 P.2d 493 (App.1986), found that the trial court should have accepted the same sort of stipulation that the trial court proposed to accept in this case. Leonard found that “[t]he defendant’s stipulation regarding his priors satisfied the felony DWI statute. The state’s only motive in putting the priors before the jury was to prejudice the defendant on the pending charge by encouraging the' jury to hastily conclude that ‘if he’s done it before, he’s guilty now.’ ” Id. at 8, 725 P.2d at 500.

¶ 6 In Leonard, however, the prior convictions were not elements of the charged offense. Leonard was charged under former A.R.S. section 28-692.01(F), the provisions of which “increase the punishment for subsequent DWI convictions, but they do not constitute an element of the DWI offense.” State v. Udall, 149 Ariz. 199, 200, 717 P.2d 878, 879 (1986). After Leonard was decided, the legislature enacted the present aggravated DUI statute, which made elements out of the enhancement factors. See State ex rel. Romley v. Superior Ct., 171 Ariz. 468, 471, 831 P.2d 844, 847 (App.1992) (suspended license is an element of A.R.S. § 28-697(A)(1)); State v. Superior Ct. (Walker), 176 Ariz. 614, 616, 863 P.2d 906, 908 (App. 1993) (repeat offender status is an element of A.R.S. § 28-697(A)(2)). Whereas Leonard involved sentence enhancements, and so must be distinguished, State v. Rebollosa, 177 Ariz. 399, 868 P.2d 982 (App.1993), involved elements of the charged offense, and so is right on point.

¶ 7 In Rebollosa, an aggravated DUI defendant stipulated that his license was suspended, then later argued that his counsel was ineffective for allowing the jury to hear about the stipulation. See id. at 400, 868 P.2d at 983. In finding no error, we stated, ‘We disagree with Leonard to the extent that it implies that a stipulation concerning an element of the charged offense that is accepted by all parties must be kept from the jury.” Id. at 401, 868 P.2d at 984. Rebollosa held that “[t]he jury could not be deprived of a dispositive stipulation concerning one of the essential elements of the offense.” Id. at 402, 868 P.2d at 985. This holding relied on State v. Geschwind, 136 Ariz. 360, 363, 666 P.2d 460, 463 (1983). We agree that Geschwind controls this issue.

¶ 8 Geschwind involved two counts of aggravated DUI; the aggravating factors were that defendant’s California driver’s license was suspended, and that this was his second Arizona DUI without an Arizona driver’s license. Id. at 361, 666 P.2d at 461. The trial court admitted evidence of the prior conviction, defendant was convicted, and the court of appeals reversed on grounds that this evidence was so prejudicial that “[t]he trial court should have followed the procedure set forth in Rule 19.1(b) even though the fact of the first conviction was technically an ‘element of the offense.’ ” State v. Geschwind, 136 Ariz. 380, 383, 666 P.2d 480, 483 (App. 1982). Then and now, Rule 19.1(b), Arizona Rules of Criminal Procedure, provides that “[i]n all prosecutions in which a prior conviction is alleged, unless such conviction is an element of the crime charged,” the defendant is entitled to a bifurcated trial (emphasis supplied).

¶ 9 The supreme court vacated that part of the court of appeals’ opinion; it held that the prior DUI conviction “is squarely within the express exception contained in the first sentence of rule 19.1(b), for cases in which the prior conviction is an element of the crime charged.” Geschwind, 136 Ariz. at 362, 666 P.2d at 462. The court stated,

Our characterization of the prior conviction as an element of the crime rather than a mere sentencing consideration settles the question of appellant’s entitlement to a bifurcated trial. The procedure used in the trial court, as to proof of the prior DWI conviction, was proper under 17 A.R.S. Rules of Criminal Procedure, rule 19, because proof of the prior conviction was part of the state’s burden of proving all the elements of the crime charged.

Id. The court held that, where the prior conviction is an element of the present charge, “evidence of the underlying crime or specified conduct cannot be precluded as irrelevant or unfairly prejudicial.” Id. at 363, 666 P.2d at 463. In the present case, the trial court found that evidence of the aggravating elements should be precluded as irrelevant and unfairly prejudicial once Petersen admitted them. Thus, the trial court’s preclusion order cannot be squared with the supreme court’s holding in Geschwind.

¶ 10 Petersen argues that the trial court’s order is supported by Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). That case is not inconsistent with Geschwind. Old Chief was charged with being a felon in possession of a firearm. He offered to stipulate to the jury that he had been convicted of a felony, but he did not want the jury to hear that his prior was for assault resulting in serious bodily injury. See Old Chief, id. at 175, 117 S.Ct. at 648. Old Chief reasoned that, given his stipulation, the probative value of the name and nature of the prior conviction was substantially outweighed by its prejudicial effect. See id. The trial court allowed the government to prove the name and nature of the prior, the court of appeals affirmed, and the United States Supreme Court reversed. The Supreme Court noted that, although the name and nature of the prior conviction was material, it was also “unfairly prejudicial” because of its capacity to “lure the fact finder into declaring guilt on a ground different from proof specific to the offense charged.” Id. at 650.

¶ 11 One significant difference between Old Chief and the present case is this: Whereas Old Chief wanted his stipulation read to the jury, Petersen wants his stipulation kept from the jury. Old Chief does not support the notion that elements of a crime can be kept from the jury, nor does it address the bifurcation issue that was raised and resolved in Geschwind.

¶ 12 The trial court reasoned that Petersen was not seeking a bifurcation “because there will be only one trial, not two.” We disagree. Petersen was seeking to bifurcate the DUI elements from those that aggravated the DUI to a Class 4 felony. That the “modified guilty plea” to the aggravating elements would precede the DUI trial makes it a eart-before-the-horse bifurcation, perhaps, but it is nevertheless a bifurcation of issues. Also, if Petersen prevails here, similarly situated defendants will have good reason to argue for a bifurcation that is not conditioned on a pretrial “modified guilty plea” to the aggravating elements.

¶ 13 The trial court’s order is consistent with the reasoning and holding in State v. Alexander, 214 Wis.2d 628, 571 N.W.2d 662 (1997). Alexander was charged with DUI with two prior convictions. He offered to stipulate to the priors, and he moved to prevent the State from offering evidence of them. See id. at 666. The trial court admitted evidence of the priors. The Wisconsin Supreme Court, construing a statute that parallels Rule 403 of the Federal Rules of Evidence, and extending Old Chief, held that the prior convictions should have been kept from the jury. See id. at 672. But see Maibauer v. State, 968 S.W.2d 502, 506-07 (Tex.App.1998) (refusing to extend Old Chief to DUI cases).

¶ 14 Alexander is well-reasoned, but it is no authority for an Arizona trial or intermediate appellate court to fail to follow Geschwind in a case such as this. Only the Arizona Supreme Court can decide whether to modify Geschwind and Rule 19.1(b) in light of the principles expressed in Old Chief and Alexander. We also note that the trial court’s bifurcation order has an obstacle in addition to Geschwind: We have held that “a jury must actually find a defendant guilty of an element before a judge may use that element to increase the sentence or classification of offense.” State v. Virgo, 190 Ariz. 349, 354, 947 P.2d 923, 928 (App.1997).

¶ 15 The bifurcation order is vacated.

PHILIP E. TOCI, Judge CONCURRING.