State v. Franklin

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOSEPH LEE FRANKLIN, Appellant.
No. 1 CA-CR 17-0164
FILED 3-15-2018
Appeal from the Superior Court in Maricopa County
No. CR2014-139015-001
The Honorable Jeffrey A. Rueter, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee
Law Office of Nicole Countryman, Phoenix
By Nicole Countryman
Counsel for Appellant
STATE v. FRANKLIN
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge James B. Morse Jr. joined.
J O N E S, Judge:
¶1 Joseph Franklin appeals his sentence for one count of
aggravated domestic violence, arguing the trial court did not conduct the
proper colloquy when Franklin stipulated to his prior convictions at
sentencing. We affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In March 2015, a jury convicted Franklin of one count of
aggravated domestic violence. At sentencing, the trial court asked the
parties whether they intended to have a trial on the prior convictions.
Franklin’s counsel responded that Franklin was “prepared to stipulate to
the priors” and had no objection. The State then provided the case
numbers, offense dates, charges, and conviction dates for two prior felonies.
Franklin was represented by counsel in both prior criminal cases.
¶3 The trial court sentenced Franklin as a category three
repetitive offender to the presumptive term of five years’ imprisonment
and credited him with 258 days’ pre-sentence incarceration. Franklin
timely appealed and we have jurisdiction pursuant to Arizona Revised
Statutes §§ 12-120.21(A)(1), 13-4031, and -4033(A).
DISCUSSION
¶4 Franklin argues the trial court erred when it failed to conduct
the colloquy required by Arizona Rule of Criminal Procedure 17.6, warning
of the consequences of admitting to prior convictions. See Ariz. R. Crim. P.
17.2. Because Franklin did not object at the time, we review for
fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (citing State
v. Bible, 175 Ariz. 549, 572 (1993)).
¶5 “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.” State v. Morales, 215 Ariz. 59, 61, ¶ 10
(2007) (citing Henderson, 210 Ariz. at 568, ¶ 25). However, “[t]he absence of
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STATE v. FRANKLIN
Decision of the Court
a Rule 17.6 colloquy . . . does not automatically entitle a defendant to a
resentencing.” Id. at 62, ¶ 11. A defendant must also establish prejudice,
generally “by showing that the defendant would not have admitted the fact
of the prior conviction had the colloquy been given.” Id. (citing United States
v. Dominguez Benitez, 542 U.S. 74, 83 (2004)); see also Henderson, 210 Ariz. at
567-68, ¶ 20 (holding that, to prevail on fundamental error, “a defendant
must establish both that the fundamental error exists and that the error in
his case caused him prejudice”) (collecting cases).
¶6 Here, Franklin does not allege, let alone prove, he would not
have admitted to his prior convictions had the colloquy been given. Indeed,
Franklin fails to identify any prejudice from the absence of a Rule 17.6
colloquy. Absent such a showing, we find no fundamental error.
CONCLUSION
¶7 We affirm.
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