                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 SCOTT VALDEZ, Appellant.

                             No. 1 CA-CR 14-0835
                               FILED 11-17-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-420372-001
            The Honorable Virginia L. Richter, Judge Pro Tem

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Colby Mills
Counsel for Appellee

Maricopa County Office of the Legal Defender, Phoenix
By Cynthia Dawn Beck
Counsel for Appellant
                               STATE v. VALDEZ
                              Decision of the Court



                         MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.


G E M M I L L, Judge:

¶1            Joseph Scott Valdez appeals from the sentences imposed after
he was convicted of possession of dangerous drugs and possession of drug
paraphernalia. Valdez argues the trial court committed fundamental,
reversible error by sentencing him as a repeat offender without a finding
that he had historical prior felony convictions or an admission by Valdez
that he had the requisite prior convictions. For the following reasons, we
affirm Valdez’s convictions and sentences, and we modify the sentencing
minute entry to replace “non-repetitive” with “repetitive” and to add a
citation to Arizona Revised Statutes (“A.R.S.”) section 13-703.

                   FACTS AND PROCEDURAL HISTORY

¶2            On May 6, 2013, two Phoenix Police officers stopped Valdez
while he was riding his bicycle after they noticed the bicycle did not have a
white front light as required by Arizona law. Officer C.N. and his partner
instructed Valdez to stop to discuss bicycle light safety precautions, and
after Valdez complied, C.N. asked Valdez if he had any weapons on him.
After Valdez acknowledged that he had a knife in his pocket, C.N.
conducted a Terry1 frisk and found the knife, as well as a capped syringe in
the same pocket.         Upon determining that the syringe was drug
paraphernalia, C.N. handcuffed and detained Valdez and continued to
search him. C.N. then found a plastic bag containing a clear, crushed-up,
glasslike substance that appeared to be methamphetamine. Valdez was
arrested and charged with one count of possession of dangerous drugs and
one count of possession of drug paraphernalia. After a jury convicted
Valdez as charged, the trial court sentenced him as a category 3 repeat
offender under A.R.S. §§ 13-703(C) and (J) to presumptive, concurrent terms
of 10 years for the class 4 felony offense and 3.75 years for the class 6 felony
offense.



1   Terry v. Ohio, 392 U.S. 1 (1968).


                                        2
                            STATE v. VALDEZ
                           Decision of the Court

¶3           This court has jurisdiction over Valdez’s timely appeal,
pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§
12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

                               DISCUSSION

¶4            “We view the facts and all reasonable inferences therefrom in
the light most favorable to sustaining the convictions.” State v. Powers, 200
Ariz. 123, 124, ¶ 2 (App. 2001).

¶5            Valdez argues that the trial court committed fundamental
error by imposing enhanced sentences without proof or findings that
Valdez had historical prior felony convictions and without Valdez
admitting he had prior felony convictions. But the State contends the trial
court did not commit reversible error because evidence of Valdez’s prior
convictions exists in (1) the parties’ joint pretrial statement; (2) the trial
court’s ruling from the Rule 609 hearing allowing the State to use Valdez’s
four most recent convictions for impeachment purposes; (3) Valdez’s
testimony at trial; and (4) the presentence report.

¶6            Before trial, the parties stipulated in the joint pretrial
statement that Valdez had seven prior felony convictions. The State also
alleged under A.R.S. §§ 13-703 and 13-704 that Valdez had six historical
prior felony convictions.2

¶7             Additionally, the State filed a motion requesting a Rule 609
hearing to determine whether Valdez could be impeached with his prior
convictions if he decided to testify, and the trial court ruled on the
admissibility of those prior convictions during the first day of trial. Valdez
objected only to the State’s request to present evidence of convictions older
than fifteen years, and asked that the court “sanitize” the more recent
convictions by excluding any description of the underlying crimes. The
trial court agreed to do so and permitted the State to introduce evidence of
Valdez’s four most recent convictions.

2 The State’s allegation of historical priors alleged that Valdez had been
convicted of felonies in Maricopa County: (1) on May 10, 2010, for a crime
committed on February 26, 2010; (2) on May 10, 2010, for a crime committed
on March 16, 2010; (3) on July 21, 2006, for a crime committed on May 24,
2005; (4) on July 21, 2006, for a crime committed on April 27, 2005; (5) on
June 11, 1998, for a crime committed on April 23, 1997; and (6) on July 15,
1992, for a crime committed on August 14, 1990.



                                      3
                             STATE v. VALDEZ
                            Decision of the Court


¶8          Valdez testified on his own behalf on the final day of trial.
When questioned about his prior convictions on cross-examination, Valdez
responded as follows:

       Q. Mr. Valdez, have you been convicted of a felony?
       A. Have I been convicted?
       Q. Yes.
       A. In the past?
       Q. Yes.
       A. Yes.
       Q. On May 10th of 2010, were you convicted of a felony that
       occurred on February 25th of 2010 in Maricopa County?
       A. Umm, I don’t know. I don’t know when the exact dates are
       and stuff like that. But I don’t know. I would imagine so if
       you’re mentioning it, but I don’t know which date it was, you
       know.
       Q. Have you been convicted of four felonies?
       A. Possibly.

¶9             When sentencing Valdez, the trial court did not specifically
identify which prior convictions it used to enhance Valdez’s sentences, and
Valdez did not stipulate or admit to any of his prior convictions at the
sentencing hearing.3 The trial court stated it had “reviewed the presentence
investigation report and recommendation as well as [Valdez’s] criminal
history” and the State’s sentencing recommendations. Valdez did not
object to the criminal history information in the presentence report, which
showed he had been convicted of the same six felonies the State sought to
introduce for impeachment and sentence enhancement purposes, including
the conviction from May 2010 about which the State questioned Valdez on
cross-examination.4


3 It is better practice for the court to identify the prior convictions used for
sentence enhancement in the sentencing minute entry.

4 The criminal history information in the presentence report includes felony
convictions: (1) on May 10, 2010, for an offense committed on March 16,
2010, in Maricopa County; (2) on May 10, 2010, for an offense committed on
February 26, 2010, in Maricopa County; (3) on July 21, 2006, for an offense
committed on May 24, 2005, in Maricopa County; (4) on November 20, 2007,
for an offense committed on April 27, 2005, in Maricopa County; (5) on June



                                       4
                            STATE v. VALDEZ
                           Decision of the Court


¶10           Because Valdez did not object at the sentencing hearing to the
enhancement of his sentences based on prior convictions, this court
conducts a fundamental error review. State v. Henderson, 210 Ariz. 561, 567,
¶ 19 (2005). To prevail under this standard of review, the defendant has the
burden of establishing both that fundamental error occurred and that the
error caused him prejudice. State v. Morales, 215 Ariz. 59, 61, ¶ 10 (2007)
(citing Henderson, 210 Ariz. at 567, ¶ 20).

¶11           Trial courts may impose enhanced sentences on a defendant
based on findings of historical prior convictions. Morales, 215 Ariz. at 61, ¶
6. Prior convictions may be proven by the State at an evidentiary hearing
or admitted by the defendant. If prior convictions are to be used for
sentence enhancement without having been proven by the State or
admitted by the defendant while testifying at trial, the court is required by
Rule 17.6 to conduct a colloquy before accepting a defendant’s stipulation
or admission to a prior conviction. See Morales, 215 Ariz. at 61, ¶¶ 6–7, 10;
State v. Gonzales, 233 Ariz. 455, 457, ¶ 8 (App. 2013). Failure to conduct a
Rule 17.6 colloquy has been recognized as fundamental error, but a
defendant is not automatically entitled to a resentencing in the absence of
prejudice. See Morales, 215 Ariz. at 61–62, ¶¶ 10–11; Gonzales, 233 Ariz. at
458, ¶ 9.

¶12           Because a category 3 sentence enhancement requires a finding
of two historical prior convictions, and Valdez only clearly admitted one
felony conviction at trial, the trial court should have conducted a Rule 17.6
colloquy before treating Valdez as a category 3 repeat offender. But the
absence of such a colloquy was harmless because Valdez has not
established prejudice. See Morales, 215 Ariz. at 62, ¶ 11 (noting that
defendant must show that he would not have admitted the fact of the prior
conviction had the trial court conducted the proper colloquy). There are
several reasons why Valdez cannot establish prejudice.

¶13           First, Valdez admitted one prior conviction when testifying at
trial. A defendant’s admission of a prior felony conviction at trial is
generally a sufficient basis on which to impose an enhanced sentence if the


11, 1998, for an offense committed on April 23, 1997, in Maricopa County;
and (6) on July 15, 1992, for an offense committed on February 7, 1991, in
Maricopa County. Although we note a minor discrepancy regarding the
date of conviction for the offense committed on April 27, 2005, that
discrepancy is not substantive in this context.


                                      5
                             STATE v. VALDEZ
                            Decision of the Court

defendant “admitted sufficient facts for the trial court to easily determine
that the admitted prior felony conviction and the one set forth in the
allegation of prior conviction were one and the same.” State v. Brown, 204
Ariz. 405, 407, ¶¶ 4–5 (App. 2003). Valdez admitted sufficient facts at trial
for the court to determine that the prior felony conviction from May 2010
was one of those set forth in the State’s allegation of historical priors. See
Brown, 204 Ariz. at 407, ¶ 5. Valdez’s testimony therefore constitutes an
admission of one prior felony conviction. See Morales, 215 Ariz. at 61, ¶ 7.

¶14           Second, the State documented Valdez’s prior convictions
prior to the Rule 609 hearing, and Valdez did not dispute the convictions at
that time. Further, at the time of sentencing, he did not dispute the criminal
history information in the presentence report, which shows six prior felony
convictions. See Gonzalez, 233 Ariz. at 458, ¶ 11 (holding that 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 a finding of prejudice). Accordingly, remand is unwarranted.
See Morales, 215 Ariz. at 62, ¶ 13 (noting that it would be pointless to remand
for a hearing merely to have the defendant admit his convictions again).

¶15            Finally, Valdez does not assert on appeal that he would not
have admitted the existence of his prior convictions had the trial court
engaged in a complete colloquy with him, nor does he contend that he was
not actually convicted of the prior felonies in question. For this additional
reason, he has not met his burden of persuasion to establish that he was
prejudiced by any error. See State v. Young, 230 Ariz. 265, 269, ¶ 11 (App.
2012) (concluding that “the defendant must, at the very least, assert on
appeal that he would not have admitted the prior felony convictions had a
different colloquy taken place.”).

¶16           For all of these reasons, Valdez has not established the
requisite prejudice to support a remand.

¶17           We note that the sentencing minute entry erroneously labels
both convictions “non-repetitive.” From the length of the “presumptive”
terms imposed by the court, however, it is clear the trial court sentenced
Valdez as a category 3 repeat offender for both convictions. The sentencing
minute entry also erroneously omits a reference to A.R.S. § 13-703 as an
applicable statute. Accordingly, the sentencing minute entry is hereby
corrected to reflect that Valdez was sentenced as a “repetitive” offender in
accordance with A.R.S. §§ 13-703(C) and (J).




                                      6
                   STATE v. VALDEZ
                  Decision of the Court

                     CONCLUSION

¶18   Valdez’s convictions and sentences are affirmed as modified.




                          :ama




                            7
