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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  EDWARD FRANK SALINAS, Appellant.

                             No. 1 CA-CR 13-0861
                               FILED 9-13-2016


          Appeal from the Superior Court in Maricopa County
                       No. CR2006-153905-001
          The Honorable Phemonia L. Miller, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Terry J. Adams
Counsel for Appellant

Edward Frank Salinas, Tucson
Appellant
                            STATE v. SALINAS
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Patricia A. Orozco joined.


C A T T A N I, Judge:

¶1             Edward Frank Salinas appeals his convictions and sentences
for four counts of aggravated driving under the influence (“DUI”), all of
which arose from a single incident in August 2006. Salinas’s counsel filed
a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State
v. Leon, 104 Ariz. 297 (1969), certifying that, after a diligent search of the
record, he found no arguable question of law that was not frivolous.
Counsel asks this court to search the record for reversible error. See State v.
Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999).

¶2             Salinas filed a pro se supplemental brief in which he argues
that the State’s extension of a plea offer with an expiration date violated his
constitutional rights because it did not allow defense counsel adequate time
to investigate and consider the offer before advising him. Additionally, we
ordered Penson1 briefing to address whether the court erred by failing to
conduct an adequate colloquy under Arizona Rule of Criminal Procedure
17.6 at sentencing before accepting Salinas’s stipulation to two prior felony
convictions, which the court used to enhance Salinas’s sentences.

¶3            For reasons that follow, we affirm Salinas’s convictions and
sentences.

             FACTS AND PROCEDURAL BACKGROUND

¶4             In late August 2006, a Phoenix Police officer observed Salinas
drive rapidly into a gas station parking lot, get out of the vehicle, walk
around to the passenger-side door, and begin to urinate. When the officer
approached Salinas and frisked him for weapons, the officer noticed that
Salinas was swaying in a circular motion, smelled of alcohol, had slurred
speech, and had red, watery, bloodshot eyes. When asked, Salinas told the
officer that he had been drinking and “was sorry.” After being arrested for
public urination, Salinas consented to a breath test, which showed he had a


1      Penson v. Ohio, 488 U.S. 75 (1988).


                                      2
                            STATE v. SALINAS
                            Decision of the Court

blood alcohol concentration (“BAC”) of 0.108 at 10:14 p.m. and 0.106 at
10:21 p.m. The State charged Salinas with four counts of aggravated DUI:
driving while impaired with a suspended license, driving while impaired
with two prior DUI convictions within the preceding 60 months, driving
with a BAC of 0.08 or more with a suspended license, and driving with a
BAC of 0.08 or more with two prior DUI convictions within the preceding
60 months. See Ariz. Rev. Stat. (“A.R.S.”) §§ 28-1381(A)(1), (2), -1383(A)(1),
(2) (2006).

¶5            Before trial, Salinas filed a motion to suppress the breath test
results, but after conducting an evidentiary hearing, the superior court
denied the motion. Salinas attended the first portion of the suppression
hearing, but he failed to return after a recess. The court concluded the
hearing and later proceeded with trial in absentia, finding that Salinas had
received notice that trial would go forward without him should he fail to
appear. At trial, in addition to the facts described above, the State presented
evidence that at the time of the offense, Salinas’s driver license had been
suspended and revoked for “two or more violations of driving while under
the influence of liquor or drugs within a 60-month period.” The jury
convicted Salinas as charged.

¶6           Salinas was later arrested, and the matter was set for
sentencing. At the beginning of the sentencing hearing, Salinas (through
counsel) and the State stipulated that he had two prior felony convictions:
(1) aggravated assault, a class 3 felony, committed on December 10, 1993
(CR94-90421) and (2) possession of marijuana, a class 6 felony, committed
on November 26, 2003 (CR2003-025793). Salinas’s counsel asked the court
to confirm that the aggravated assault committed in 1993 would “still fall
within the 10 years” necessary to qualify as a historical prior felony
conviction, and counsel noted that “[t]here was another prior that could
have been used.”

¶7            At the prosecutor’s request, the court asked Salinas to orally
confirm each of the two prior convictions, and Salinas did so. The court did
not, however, conduct a colloquy with Salinas describing the sentencing
consequences of stipulating to the existence of prior convictions or
informing him of the rights he was waiving by admitting the convictions.
See Ariz. R. Crim. P. 17.6; see also Ariz. R. Crim. P. 17.2, 17.3. And although
the State apparently marked as exhibits certain documents relevant to the
convictions, including certified copies of records from the prior cases, the
State did not offer the documents in evidence.




                                      3
                            STATE v. SALINAS
                            Decision of the Court

¶8           Based on the parties’ stipulation, the court found Salinas had
two prior convictions. The court sentenced Salinas as a repetitive offender
with two historical prior felony convictions under A.R.S. § 13-604(C) (2006)
to concurrent, mitigated terms of 8 years’ imprisonment for each count,
with credit for 212 days of presentence incarceration. Salinas timely
appealed.

                               DISCUSSION

       Stipulation to Prior Convictions.

¶9             We ordered Penson briefing to address whether Salinas’s
stipulation to two prior felony convictions without a Rule 17.6 colloquy was
sufficient to support his enhanced sentences. Because Salinas did not raise
this issue before the superior court, we review for fundamental, prejudicial
error. See State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19–20 (2005).

¶10           Rule 17.6 allows a defendant to admit the existence of a prior
conviction. Unless the defendant does so while testifying, the court must
conduct a plea-type colloquy to ensure the admission is made voluntarily
and with knowledge of the rights being waived. Ariz. R. Crim. P. 17.6, 17.2;
State v. Morales, 215 Ariz. 59, 61, ¶¶ 7–8 (2007). The colloquy requirement
“applies equally to an admission by a defendant and a stipulation by
defense counsel to the existence of a prior conviction.” Morales, 215 Ariz. at
61, ¶ 9.

¶11           Although failure to conduct a Rule 17.6 colloquy is
fundamental error, it does not require resentencing if the defendant does
not or cannot show prejudice. Id. at 61–62, ¶¶ 10–11. If the record includes
evidence sufficient to conclusively show the existence of the prior
convictions, remand is not necessary. Id. at 62, ¶ 13 (previously admitted
copies of the prior convictions, the authenticity of which the defendant did
not challenge, “conclusively prov[ed]” the prior convictions, rendering
remand for further evidentiary hearing unnecessary). Moreover, 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.”
State v. Young, 230 Ariz. 265, 269, ¶ 11 (App. 2012) (citing Morales, 215 Ariz.
at 61–62, ¶¶ 10–11).

¶12           Here, Salinas stipulated to two prior convictions through
counsel and confirmed the details of the convictions when asked directly
by the court. The court did not, however, inform Salinas of his rights or of
the consequences of stipulating to the existence of the prior convictions as
required under Rule 17.6. See also Ariz. R. Crim. P. 17.2. Nevertheless, the


                                      4
                            STATE v. SALINAS
                            Decision of the Court

lack of a Rule 17.6 colloquy does not establish a basis for relief in this case
because Salinas has never asserted that he would not have admitted the fact
of the prior conviction had the colloquy been complete, or that the State
would have been unable to produce the needed documentary evidence of
his prior convictions if he had declined to stipulate. See Young, 230 Ariz. at
269, ¶ 11; see also Morales, 215 Ariz. at 62, ¶ 11. Thus, a remand to determine
the existence of the prior convictions is not required.

¶13            Both of Salinas’s stipulated prior convictions must also
properly be classified as historical prior felony convictions to support the
sentences imposed. See A.R.S. § 13-604(C) (2006) (enhanced sentencing
range for class 4 felonies with two or more historical prior felony
convictions). A prior class 3 felony must have been committed within 10
years immediately preceding the present offense (excluding any time spent
incarcerated) to qualify as a historical prior felony conviction. See A.R.S. §
13-105(22)(b).

¶14            Here, the aggravated assault conviction (class 3 felony) to
which Salinas stipulated was committed in December 1993, more than 10
years before the August 2006 DUI offenses in this case. Salinas stipulated
to the existence of this prior conviction but not to its potential classification
as a historical prior felony conviction, and there is no documentary
evidence in the record corroborating the time Salinas spent incarcerated
after committing the aggravated assault. Nevertheless, in discussing the
stipulation, the prosecutor noted that the aggravated assault carried a 3.75-
year sentence (although he did not specify the amount of time actually
served), and Salinas’s counsel also stated that “[t]here was another prior
that could have been used.” Based on these statements to the superior court
and in light of Salinas’s failure to assert on appeal that the aggravated
assault should not have been classified as a historical prior felony
conviction, Salinas has not shown reversible sentencing error.

       Expiring Plea Offer.

¶15           In his pro se supplemental brief, Salinas argues that his
convictions are invalid because the State extended a plea offer with an
expiration date, which did not give defense counsel adequate opportunity
to investigate and advise Salinas whether to accept the offer. Although
Salinas phrases his argument in terms of the prosecutor’s actions, the
argument in essence alleges that defense counsel was ineffective because he
was denied adequate opportunity to investigate the case. A claim for
ineffective assistance of counsel may not be raised on direct appeal and
instead must be brought in a Rule 32 proceeding for post-conviction relief.


                                       5
                            STATE v. SALINAS
                            Decision of the Court

State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20 (2007); see also State v.
Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002). We therefore do not address this argument.

       Fundamental Error Review.

¶16           Salinas was present and represented by counsel at all stages
of the proceedings against him. Salinas was given adequate notice that he
would be tried in absentia if he failed to appear, and the record reflects that
the superior court afforded Salinas all his constitutional and statutory
rights, and that (with the exception of the Rule 17.6 colloquy noted above)
the proceedings were conducted in accordance with the Arizona Rules of
Criminal Procedure. The court conducted appropriate pretrial hearings,
and the evidence presented at trial and summarized above was sufficient
to support the jury’s verdicts. Salinas’s sentences fall within the range
prescribed by law, and he received all presentence incarceration credit to
which he was entitled.

                               CONCLUSION

¶17            Salinas’s convictions and sentences are affirmed. After the
filing of this decision, defense counsel’s obligations pertaining to Salinas’s
representation in this appeal will end after informing Salinas of his future
options, unless counsel’s review reveals an issue appropriate for
submission to the Arizona Supreme Court by petition for review. See State
v. Shattuck, 140 Ariz. 582, 584–85 (1984). Salinas will be given 30 days from
the date of this decision to proceed, if he desires, with a pro se motion for
reconsideration or petition for review.




                            AMY M. WOOD • Clerk of the Court
                             FILED: AA




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