                            IN THE COURT OF APPEALS
                                STATE OF ARIZONA
                                  DIVISION TWO


THE STATE OF ARIZONA,                        )
                                             )           2 CA-CR 2003-0080-PR
                              Respondent,    )           DEPARTMENT A
                                             )
                    v.                       )           OPINION
                                             )
VIRGINIA L. OFSTEDAHL,                       )
                                             )
                               Petitioner.   )
                                             )


     PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY

      Cause Nos. CR-20012661, CR-20012675, CR-20013733, and CR-20013781

                            Honorable Edgar B. Acuña, Judge

                         REVIEW GRANTED; RELIEF GRANTED


Susan A. Kettlewell, Pima County Public Defender
 By John F. Palumbo                                                               Tucson
                                                                  Attorneys for Petitioner


H O W A R D, Presiding Judge.


¶1           Pursuant to a plea agreement, petitioner Virginia Louise Ofstedahl pled guilty

to four counts of aggravated driving under the influence of an intoxicant (DUI) while her

license was suspended or revoked and two counts of endangerment. The trial court

imposed a combination of concurrent and consecutive, aggravated sentences totaling fifteen

years. Ofstedahl sought to have that plea agreement vacated and the original charges
reinstated in a petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim.

P., 17 A.R.S., arguing that permitting some of the six counts to be used as historical prior

convictions to enhance her sentences under A.R.S. § 13-604 on other counts covered by the

plea agreement was contrary to State v. Thompson, 200 Ariz. 439, 27 P.3d 796 (2001).

This petition for review follows the trial court’s denial of the petition. Finding that the trial

court abused its discretion in so ruling, see State v. Watton, 164 Ariz. 323, 325, 793 P.2d

80, 82 (1990), we grant review and relief.

                                      BACKGROUND

¶2            The charges against Ofstedahl arose from four separate incidents, two in July

2001 and two in November 2001, in which she had been arrested for DUI. Ofstedahl and

the state attempted to resolve the four resulting criminal prosecutions in a single plea

agreement. The agreement provided that Ofstedahl would plead guilty to all of the charged

offenses. Citing § 13-604, the agreement further provided that the first aggravated DUI

offense, committed on July 4, would be used as an historical prior felony conviction to the

offenses of aggravated DUI and endangerment committed on November 6. It further

provided that both the July 4 offense and the second aggravated DUI committed on July 16

would be used as historical prior felony convictions for the subsequent offenses of

aggravated DUI and endangerment committed on November 11. Ofstedahl pled guilty and

provided a factual basis for all counts at one hearing on January 18, 2002, and the trial

court accepted the pleas at that time. On February 28, 2002, the trial court rendered




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judgment and imposed sentence on all counts, enhancing four of the sentences with prior

convictions as provided for in the plea agreement.

¶3            Ofstedahl subsequently filed her petition for post-conviction relief, arguing

that her first two convictions could not, as a matter of law pursuant to Thompson, serve as

historical prior convictions to enhance her sentences for other convictions entered at the

same time. As a result, she argued, there could not have been a valid factual basis for the

prior convictions. She thus asked that her pleas be vacated and the original charges

reinstated. The state did not oppose the request, but cautioned that Ofstedahl would likely

face trial and the possibility of considerably more prison time if her pleas were vacated.

In her reply, Ofstedahl confirmed the relief she was seeking.

                                       DISCUSSION

¶4            Ofstedahl’s argument is based on an accurate reading of Thompson. There,

our supreme court construed the phrase “historical prior conviction” in § 13-604(V) to mean

that “the conviction on the prior offense must precede the conviction on the present

offense.” Thompson, 200 Ariz. 439, ¶ 6, 27 P.3d at 798. The court also noted that “[o]ne

is convicted when there has been a determination of guilt by verdict, finding, or the

acceptance of a plea.” Id. ¶ 7. The court further explained that enhancement under § 13-

604 is not possible “when felonies are tried together.” Id. ¶ 9. In this context, we can

discern no meaningful distinction between convictions based on jury verdicts rendered at

a single trial for multiple felonies and convictions resulting from the trial court’s acceptance

of guilty pleas to multiple felonies at the same hearing. Because the trial court accepted

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Ofstedahl’s guilty pleas in all four cases at the same time, none of the resulting convictions

preceded any others. Accordingly, they could not be used as historical prior convictions

to enhance the sentences for any of the other convictions encompassed by the same plea

agreement.

¶5            In its order denying the petition, the trial court found Thompson was not

controlling, relying instead on Davis v. Superior Court, 126 Ariz. 568, 617 P.2d 520

(1980); State v. Walker, 185 Ariz. 228, 914 P.2d 1320 (App. 1995); and State v. Hanson,

138 Ariz. 296, 674 P.2d 850 (App. 1983). These cases interpreted former § 13-604(H),

which had expressly permitted convictions for crimes not committed on the same occasion

but consolidated for trial to be used as prior convictions—colloquially known as “Hannah1

priors”—for sentence enhancement purposes. See State v. Williams, 169 Ariz. 376, 380,

819 P.2d 962, 966 (App. 1991). However, the legislature eliminated Hannah priors by

deleting that provision in its 1993 revision of the sentencing code. 1993 Ariz. Sess. Laws,

ch. 255, § 7. Consequently, these cases are not applicable to Ofstedahl’s issue.

¶6            The same legislation essentially supplanted the use of Hannah priors under

former § 13-604(H) with a new statute, A.R.S. § 13-702.02, providing for less severe

sentence enhancement for multiple convictions not committed on the same occasion. See

1993 Ariz. Sess. Laws, ch. 255, § 12; State v. Christian, 205 Ariz. 64, 68 n.11, 66 P.3d

1241, 1245 n.11 (2003). Indeed, the clear lesson from Thompson is that § 13-702.02 is the

applicable sentencing statute for cases such as Ofstedahl’s, in which multiple prosecutions

       1
       State v. Hannah, 126 Ariz. 575, 617 P.2d 527 (1980).
                                              4
are resolved through a comprehensive plea agreement and all pleas are entered at the same

time. However, Ofstedahl’s plea agreement did not contemplate sentencing under § 13-

702.02, and neither party sought resentencing under § 13-702.02 as a resolution to this

problem below.

¶7            A critical element of Ofstedahl’s plea agreement was this provision permitting

some of the resulting convictions to be used as historical prior convictions under § 13-604

to enhance her sentences for other offenses to which she was pleading guilty. When

admitting a prior conviction for sentence enhancement purposes is part of a plea agreement,

as it was here, a factual basis for the prior conviction must be established, just as a factual

basis is similarly required for each element of the substantive offense. State v. Draper, 123

Ariz. 399, 401, 599 P.2d 852, 854 (App. 1979); see also Ariz. R. Crim. P. 17.6, 16A

A.R.S. But that could not be accomplished here because historical prior convictions under

§ 13-604 were no longer legally possible under the terms and circumstances of this guilty

plea process. And, although the plea agreement provided for the illegal enhancement of

only four of the six sentences, it is clear that the improper provisions tainted the

comprehensive plea arrangement as a whole. Accordingly, the appropriate disposition is

to vacate the entire plea agreement and reinstate the original charges. See Draper, 123

Ariz. at 401, 599 P.2d at 854.

¶8            Mistakenly believing that Ofstedahl’s claim was not controlled by Thompson,

the trial court abused its discretion in denying the petition. See State v. Chapple, 135 Ariz.

281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983) (“abuse of discretion” includes situations

                                              5
“where the reasons given by the court for its action are . . . legally incorrect”). We

appreciate the trial court’s observation that applying Thompson in this context might “create

absurdities”: the court noted that sentencing under § 13-604 would have been permissible

under Ofstedahl’s reading of Thompson if it had merely calendared the change-of-plea

hearings for each cause number on different dates. But the same anomaly arises in the jury

trial context: convictions for distinct crimes rendered at separate trials can be used as

historical prior convictions under § 13-604, but Thompson is clear that enhancement under

§ 13-604 is impermissible if the same felonies are tried together. Thompson, 200 Ariz. 439,

¶ 9, 27 P.3d at 798. We have no authority to overrule the supreme court’s decision in

Thompson. See State v. Anderson, 185 Ariz. 454, 456, 916 P.2d 1170, 1172 (App. 1996).

¶9            Accordingly, we grant the petition for review, grant relief, and remand to the

trial court for further proceedings in accordance with this decision.



                                              ____________________________________
                                              JOSEPH W. HOWARD, Presiding Judge

CONCURRING:



___________________________________
J. WILLIAM BRAMMER, JR., Judge



____________________________________
M. JAN FLÓREZ, Judge


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