                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                    ROY MATTHEW SOVINE, Appellant.

                             No. 1 CA-CR 14-0094
                              FILED 10-07-2014


            Appeal from the Superior Court in Yavapai County
                        No. V1300CR201180462
               The Honorable Jennifer B. Campbell, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Andrew Reilly
Counsel for Appellee

Nicole T. Farnum, Attorney at Law, Phoenix
By Nicole T. Farnum
Counsel for Appellant


                       MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.
                            STATE v. SOVINE
                           Decision of the Court

T H O M P S O N, Judge:

¶1            Roy Matthew Sovine, appeals from his convictions and
sentences on one count of second degree burglary, a Class 3 felony; one
count of taking the identity of another, a Class 4 felony; one count of theft
of a credit card, a Class 5 felony; and one count of theft of property of a
value of $1,000 or more, a Class 1 misdemeanor. The evidence at trial1
established that Sovine entered the victim’s home in Sedona, Arizona, while
the victim was asleep, and stole the victim’s television, laptop computer,
and a wallet containing the victim’s credit card and identification card.
Sovine was eventually arrested and charged with the present offenses after
he unsuccessfully attempted to use the victim’s credit card and driver’s
license to obtain cash at a casino in Camp Verde, Arizona.

¶2            On appeal, Sovine argues that the trial court erred by
enhancing his sentence based on his stipulation to his prior convictions,
without first conducting a colloquy pursuant to Arizona Rule of Criminal
Procedure 17.6. He also argues that a statement made by his defense
counsel during closing argument amounted to “structural error,” requiring
reversal of his convictions and a new trial. This court has jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003), and 13-
4033(A)(1), (4) (Supp. 2013). For reasons set forth below, we affirm.

                              DISCUSSION

                              Prior Convictions

¶3             Prior to trial, the state alleged that Sovine had three prior
felony convictions from Yavapai County and disclosed certified copies of
the judgments and sentences. During the trial, defense counsel informed
the trial court that Sovine wished to stipulate to the prior convictions and
to submit the state’s aggravating factors to the trial court to decide.2
Thereafter, defense counsel and the prosecutor submitted a stipulation re:


1      We view the evidence in the light most favorable to sustaining the
convictions and resolve all reasonable inferences against defendant. State
v. Karr, 221 Ariz. 319, 320, ¶ 2, 212 P.3d 11, 12 (App. 2008).

2      The trial court subsequently found that the state had proved three
aggravating factors beyond a reasonable doubt: the age of the victim (over
65), that the defendant committed the crime for pecuniary gain, and that
the victim suffered financial harm. See A.R.S. § 13-701 (D) (Supp. 2013).


                                     2
                             STATE v. SOVINE
                            Decision of the Court

prior convictions to the trial court in which Sovine stipulated to two prior
felony convictions in Yavapai County Superior Court for aggravated
assault on a law enforcement officer and resisting arrest, each committed
on August 1, 2010. At sentencing, the trial court accordingly sentenced
Sovine as a repetitive offender.

¶4             Sovine does not challenge the nature of his prior convictions
or that he is the individual who committed them. Rather, he only argues
that we must remand for resentencing because the trial court never
conducted the necessary Rule 17.6 “plea-type colloquy” with him “to
determine whether he was knowingly, voluntarily and intelligently
waiving his right to a trial on the priors.” Our review of the record
convinces us that remand is not necessary.

¶5             First, we note that Sovine did not object to the trial court’s
acceptance of his stipulation, and thus, we need only review for
fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d
601, 607 (2005). The burden is on Sovine to show both that fundamental
error exists and that the error in his case caused him prejudice. Id. at ¶ 20,
115 P.3d at 607. Sovine can do neither in this case.

¶6             A defendant may waive his right to a trial on his priors for
sentence enhancement purposes by either admitting them or stipulating to
them via his attorney. State v. Morales, 215 Ariz. 59, 61, ¶¶ 8-9, 157 P.3d 479,
481 (2007). When he does so, “he waives certain constitutional rights,
including the right to a trial.” Id. at ¶ 8, 157 P.3d at 481. In either instance,
Rule 17.6 applies in order to protect the defendant’s due process rights and
ensure that his admission is voluntarily and intelligently made. Id. at ¶ 9,
157 P.3d at 481. Rule 17.6 requires that, before accepting a defendant’s
admission to a prior conviction, the trial court must advise the defendant of
the nature of the allegation, the effect of admitting the prior on the
defendant’s sentence, and the defendant’s right to proceed to a trial and
require the state to prove the prior. State v. Anderson, 199 Ariz. 187, 194, ¶
36, 16 P.3d 214, 221 (App. 2000). “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.” Morales, 215 Ariz.
at 61, ¶ 10, 157 P.3d at 481.

¶7            Contrary to Sovine’s argument, the record shows that after
defense counsel informed the court that Sovine wished to admit his prior
convictions, and before the admissions were reduced to writing and signed
by the attorneys, the trial court observed the Rule 17.6 requirements and
questioned Sovine to ascertain whether Sovine’s decision to admit was


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                             STATE v. SOVINE
                            Decision of the Court

voluntarily and intelligently made. The trial court reminded Sovine of the
prior Donald hearing it held with Sovine at which sentencing ranges were
reviewed. The court advised Sovine that his stipulation to a prior
conviction would increase the range of sentencing he faced on his offenses.
Moreover, the court provided Sovine with a copy of the sentencing chart
and reviewed the different effects on sentencing caused by aggravating
factors and prior convictions. At the end of this discussion, Sovine
reiterated his desire to “take the advice of my attorney and follow his
advice.” Nonetheless, the trial court took a break to provide Sovine with
another opportunity to speak with his counsel about the prior convictions.

¶8            Thereafter, the trial court asked defense counsel if he had an
opportunity to review with Sovine “in greater detail” matters concerning
the priors, and whether Sovine still wanted to admit to the prior
convictions. Defense counsel responded that he again discussed the prior
convictions with Sovine, and stated that “my client indicates that proof is
not required.” At that point, the trial court finally accepted Sovine’s
admission to his prior convictions and requested that the attorneys submit
a signed stipulation to the prior convictions into the record.

¶9             Based on this record, we find that the trial court’s discussions
with Sovine satisfy the requirements of Rule 17.6. Consequently, Sovine
fails to prove that fundamental error occurred.3 Henderson, 210 Ariz. at 567,
¶ 20, 115 P.3d at 607.

                      Closing Argument/Structural Error

¶10           At the beginning of his closing argument, defense counsel
began his comments to the jury by acknowledging that some of the
evidence he had alluded to in his opening statement had not made it into
evidence at trial. He stated:



3       Furthermore, even if the required colloquy had not occurred, Sovine
is not entitled to resentencing unless he can establish that he was prejudiced
by this error. See Morales, 215 Ariz. at 62, ¶ 11, 157 P.3d at 482. To show
prejudice on appeal, “at the very least,” a defendant must assert that he
would not have admitted the priors if a different colloquy had taken place.
State v. Young, 230 Ariz. 265, 269, ¶ 11, 282 P.3d 1285, 1289 (App. 2012).
Sovine does not make even this minimal assertion, and thus, resentencing
is not required.




                                      4
                             STATE v. SOVINE
                            Decision of the Court

       My statement to you was that you’ll hear evidence about that
       [credit card] and that evidence has not come in. I asked you
       not to hold that statement against my client. If you want to
       hold it against me, that’s fine. [The victim] has his opinion of
       defense lawyers and I understand that, but I would ask you
       to respect my role in defending someone who sits before you
       today just as he did yesterday, guilty until proven otherwise and
       sometimes people don’t like that. Sometimes people have an
       impression. I don’t like that guy. Don’t like me. Don’t hold
       that against my client.

(Emphasis added.)

¶11             On appeal, Sovine focuses on the statement “guilty until
proven otherwise” and contends that it constitutes structural error because
it signifies that his “defense lawyer abandoned him when he announced to
the jury at the end of the case that [he] was guilty.” See, e. g., State v.
Valverde, 220 Ariz. 582, 584-85 n.2, ¶ 10, 208 P.3d 233, 235-36 n.2 (2009)
(noting structural error occurs when there is “complete denial of criminal
defense counsel”) (citation omitted). He claims that counsel’s error
deprived him of any possibility of a fair trial and that reversal is therefore
mandated.

¶12          Sovine also failed to raise this issue at trial. If no objection
was made at trial and the alleged error does not rise to structural error, we
review only for fundamental error. Valverde, 220 Ariz. at 585, ¶ 12, 208 P.3d
at 236. However, if we find that structural error occurred, reversal is
mandated, whether or not Sovine objected below or prejudice is found. See
id. at ¶ 10. “If error is structural, prejudice is presumed.” Id. (citation
omitted). We find no structural error.

¶13            Contrary to Sovine’s claim, his lawyer did not abandon him
and he was not denied criminal defense counsel at trial. Where a defendant
is represented by counsel, a denial of counsel may still occur if counsel
“entirely fails to subject the prosecution’s case to meaningful adversarial
testing.” See Bell v. Cone, 535 U.S. 685, 697 (1983) (quoting United States v.
Cronic, 466 U.S. 648, 659 (1984)). The record shows that defense counsel
fully and competently represented Sovine throughout his trial. Therefore,
Sovine’s argument that he was denied criminal counsel is without merit.

¶14             It is obvious that defense counsel simply misspoke when he
made the statement; and that, despite the actual spoken words, he did not
tell the jury that Sovine was “guilty.” First, taken in context, the entire gist



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                            STATE v. SOVINE
                           Decision of the Court

of defense counsel’s argument was to exhort the jury that it was not to hold
Sovine guilty simply because the jury may have formed some antipathy to
something defense counsel did or said at trial. In fact, immediately
following the challenged statement, defense counsel reminded the jury that
the state had the obligation of proving all of the elements of each of the
offenses charged beyond a reasonable doubt, and pointed out why the
state’s evidence failed to prove Sovine’s guilt.

¶15          Second, defense counsel’s allusion to Sovine as “someone
who sits before you today just as he did yesterday, guilty until proven
otherwise,” was clearly meant to reference and mirror counsel’s statements
in his opening argument the day before:

       As my defendant, client, sits here today, he is not guilty of
       anything. He’s not guilty based upon [the prosecutor’s]
       [opening] comments. He’s not guilty until the evidence is
       provided that in fact a crime was committed and that he
       committed it.

When viewed in the context of the entire trial, therefore, the jury would
have construed counsel’s statement for what it appears, a slip of the tongue,
and not as conceding defendant’s guilt.

¶16            Furthermore, the trial court instructed the jury that the
statements or arguments made by counsel were not evidence and that it
was to determine the facts only from “the testimony of witnesses and from
the exhibits introduced in court.” The trial court also clearly instructed the
jury on the burden of proof, stating “Every defendant is presumed by law
to be innocent. The State has the burden of proving the defendant guilty
beyond a reasonable doubt.” We presume that the jury followed the trial
court’s instructions. State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443
(1996). Based on our review of the record, we find that Sovine has failed to
prove that defense counsel’s misstatement constitutes fundamental error
and that he was prejudiced by it. See Henderson, 210 Ariz. at 567, ¶ 20, 115
P.3d at 607.




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                           STATE v. SOVINE
                          Decision of the Court

                            CONCLUSION

¶17          For the foregoing reasons, we affirm Sovine’s convictions and
sentences.




                                 :gsh




                                    7
