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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        ERIC JAMES LIESER, Appellant.

                              No. 1 CA-CR 14-0185
                               FILED 11-24-2015


            Appeal from the Superior Court in Maricopa County
                         No. CR2012-141465-001
                   The Honorable David B. Gass, Judge

                        AFFIRMED AS CORRECTED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Craig W. Soland
Counsel for Appellee

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

Eric James Lieser
Appellant
                             STATE v. LIESER
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined.


C A T T A N I, Judge:

¶1             Eric James Lieser appeals his forgery and misconduct
involving weapons convictions and the resulting sentences. Lieser’s
counsel filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), certifying that,
after a diligent search of the record, there does not appear to be an arguable
question of law that is not frivolous, and asking this court to search the
record for reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d
89, 96 (App. 1999).

¶2             Lieser filed a supplemental brief arguing that (1) he was
detained without probable cause, (2) he was not afforded his Miranda1
rights, (3) the evidence at trial was insufficient and incorrect, and (4) his
trial counsel did not provide constitutionally required effective assistance
of counsel. Additionally, we ordered Penson2 briefing to address whether
Lieser’s sentence was improperly enhanced when the superior court cited
his charged (Count 2) weapons misconduct conviction as a historical prior
felony. After reviewing the record and considering the issues raised by
Lieser and the requested supplemental briefing, we affirm his convictions
and sentences as corrected.

              FACTS AND PROCEDURAL BACKGROUND

¶3           One afternoon, Officer Schneider and Detective Steward of
the Glendale Police Department approached Lieser and his female
companion in a motel parking lot. The two officers asked to speak to them
and they agreed to do so. Lieser’s companion was arrested for an unrelated
matter. Upon a search incident to arrest of Lieser’s companion, officers
found numerous counterfeit $20 and $1 bills in her bag.




1      Miranda v. Arizona, 384 U.S. 436 (1966).
2      Penson v. Ohio, 488 U.S. 75 (1988).

                                       2
                             STATE v. LIESER
                            Decision of the Court

¶4            Lieser consented to a search of his own bags. The officers
found ink cartridges and $20 bills, which were consistent with the
counterfeit bills found in his companion’s bag. Officers then searched a
third bag, and found identification and mail belonging to Lieser, scissors, a
paper cutter, additional ink cartridges, and a handgun.

¶5              The State charged Lieser with forgery, misconduct involving
weapons, and theft, but later dismissed the theft charge. Lieser failed to
appear for trial, and the trial proceeded in his absence. Officers testified
that the bills found in Lieser’s belongings were counterfeit, explaining that
the bills did not feel like real money and did not have any of the security
features of U.S. currency. The court read a stipulation to the jury that Lieser
was a prohibited possessor at the time of the offenses.

¶6           On February 14, 2013, the jury found Lieser guilty of both
forgery and misconduct involving weapons (the “February 14
Convictions”). Additionally, the jury found aggravating factors as to the
forgery count.

¶7            A warrant was issued for Lieser’s arrest, and in July 2013 he
was located and arrested. At that time, he was charged with two additional
offenses: taking the identity of another and possession or use of a narcotic
drug, both class 4 felonies. Lieser pleaded guilty to these charges, and the
court consolidated sentencing for the new offenses with sentencing for the
February 14 Convictions.

¶8            For the February 14 Convictions, the court sentenced Lieser
as a category three repetitive offender to minimum, concurrent eight-year
terms, with credit for 130 days of presentence incarceration.3 In enhancing
Lieser’s sentence to that of a category three repetitive offender, the court’s
minute entry cited two purported historical prior felony convictions; both
involved misconduct involving weapons, one committed in 2008, and the
other Count 2 of the February 14 Convictions.



3      Although the sentencing minute entry erroneously states that Lieser
was sentenced to slightly aggravated terms for both forgery and
misconduct involving weapons, the court’s oral pronouncement correctly
provided that both sentences were indeed minimum sentences. See Ariz.
Rev. Stat. (“A.R.S.”) § 13-703(J); State v. Ovante, 231 Ariz. 180, 188, ¶ 38, 291
P.3d 974, 982 (2013) (providing that an oral pronouncement of sentence
controls over a discrepancy in written minute entry).



                                       3
                             STATE v. LIESER
                            Decision of the Court

¶9            With authorization from the superior court, Lieser timely
filed a delayed appeal. We have jurisdiction under A.R.S. § 13-4033.4

                                DISCUSSION

I.     Lieser’s Prior Felony Convictions and Sentence Enhancement.

¶10            We ordered Penson briefing to address whether the record
supports the superior court’s finding that Lieser was a category three
repetitive offender, even though the court cited in its minute entry that one
of the historical prior convictions was Count 2 in the present case (the
“Count 2 Charge”). Because this issue was not raised before the superior
court, we review for fundamental, prejudicial error. State v. Henderson, 210
Ariz. 561, 567, ¶¶ 19–20, 115 P.3d 601, 607 (2005).

¶11            An adult is a category three repetitive offender if he “stands
convicted of a felony and has two or more historical prior felony
convictions.” A.R.S. § 13-703(C). Historical prior felonies must be “prior
felony convictions.” See A.R.S. § 13-105(22)(a) (emphasis added). This
means that historical prior felony convictions must precede the conviction
on the presently charged offense. See State v. Thompson, 200 Ariz. 439, 441,
¶¶ 6, 8, 27 P.3d 796, 798 (2001) (“Offenses committed on the same occasion
cannot be historical prior felony convictions, because the offenses that are
the subject of the prior conviction must have been committed before the
present offense.”). Lieser and the State agree on this point, and the State
acknowledges that it was error to use the Count 2 Charge as a historical
prior felony for enhancement purposes.

¶12             Here, the error is reversible only if it is fundamental, that is,
error that “goes to the foundation of [Lieser’s] case, takes away a right that
is essential to his defense, and is of such magnitude that he could not have
received a fair trial.” Henderson, 210 Ariz. at 568, ¶ 24, 115 P.3d at 608. A
sentence that fails to conform with mandatory sentencing provisions is
illegal, State v. Joyner, 215 Ariz. 134, 137, ¶ 5, 158 P.3d 263, 266 (App. 2007),
and illegal sentences are fundamental error. State v. McDonagh, 232 Ariz.
247, 249, ¶ 7, 304 P.3d 212, 214 (App. 2013).

¶13            The superior court did not orally state which of Lieser’s
historical prior felonies would be used for enhancement purposes. And, as
written, the minute entry improperly relies on the Count 2 Charge in
sentencing Lieser as a category three repetitive offender. Without the

4     Absent material revisions after the relevant date, we cite a statute’s
current version.

                                       4
                             STATE v. LIESER
                            Decision of the Court

Count 2 Charge, there is only one historical prior felony conviction listed
appropriately in the minute entry that would subject Lieser to sentencing
as a category two repetitive offender. See A.R.S. § 13-703(B). Lieser’s eight-
year sentence is greater than the maximum allowable 7.5 years for a
category two repetitive offender convicted of a class 4 felony, see A.R.S.
§ 13-703(I), and thus the sentence imposed does not comply with the
mandatory sentencing guidelines. Therefore, the court fundamentally
erred when it used Lieser’s Count 2 Charge as a historical prior felony for
sentencing purposes.

¶14            To be entitled to relief, however, Lieser must also
demonstrate prejudice, a fact-intensive inquiry that differs from case to
case. Henderson, 210 Ariz. at 568, ¶ 26, 115 P.3d at 608. An excessive
sentence is by its nature prejudicial to the extent it exceeds the penalty
authorized by law. See State v. Soria, 217 Ariz. 101, 103, ¶ 7, 170 P.3d 710,
712 (App. 2007). However, where the record contains evidence that
conclusively proves an unlisted historical prior conviction and provides a
basis for the sentence imposed, there is no prejudice. See State v. Morales,
215 Ariz. 59, 62, ¶ 13, 157 P.3d 479, 482 (2007).

¶15           Prior to sentencing, Lieser pleaded guilty to two new charges.
As part of his plea agreement in the new case, Lieser admitted to five prior
felony convictions, two of which were his February 14 Convictions. Two of
the other three convictions he admitted were historical prior felonies that
could have been used to enhance Lieser’s sentence in the present case: (1)
misconduct involving weapons committed in 2008 (which the superior
court cited in the sentencing minute entry) and (2) possession or use of
narcotic drugs, a class 4 felony also committed in 2008.

¶16            When a defendant admits to a prior conviction for sentence
enhancement purposes, that admission may be considered conclusive proof
of the prior felony conviction if the court engages in a plea-type colloquy.
Morales, 215 Ariz. at 61, ¶ 7, 157 P.3d at 481. A colloquy is necessary to show
that the stipulation was voluntary and intelligent, id. at ¶ 8, and should
include inquiry into whether the defendant “understood the nature of the
stipulation, the constitutional rights he was [forgoing] and his right to
require the State to prove the prior conviction.” State v. Carter, 216 Ariz.
286, 289, ¶ 13, 165 P.3d 687, 690 (App. 2007).

¶17           The superior court properly conducted this type of colloquy
before Lieser accepted his plea. Additionally, at the time Lieser entered into
his plea agreement, the State notified the court that Lieser’s admissions
would waive his right to a priors trial on his February 14 Convictions and


                                      5
                              STATE v. LIESER
                             Decision of the Court

would affect his sentencing in that matter. After conferring with counsel,
Lieser stated that he understood such an admission could be used against
him at his February 14 Convictions sentencing, and with that knowledge he
accepted the plea agreement. Accordingly, because Lieser admitted two
actual historical prior felony convictions, we conclude that Lieser was not
prejudiced by the court’s error in listing the Count 2 Charge as a historical
prior felony conviction in the sentencing minute entry.

¶18            Remand is not necessary to correct the superior court’s
minute entry. Appellate courts may correct an erroneous minute entry if
the record clearly identifies the intended sentence. See Ovante, 231 Ariz. at
188, ¶¶ 38–39, 291 P.3d at 982. As noted above, Lieser’s plea agreement and
his admitted prior felonies were part of the record before the superior court.
We thus correct the minute entry to delete the Count 2 Charge as a prior
felony, and substitute his conviction of possession or use of narcotic drugs,
a class 4 felony, committed December 9, 2008 and of which he was convicted
on October 8, 2009 in Maricopa County Superior Court cause number
CR2009-110895-001, as described in Lieser’s plea agreement.

II.    Lieser’s Arguments.

¶19             Lieser argues that there was no valid probable cause to search
his bag, and that his contact with the officers was not consensual. Police
officers may approach and question a person without implicating the
Fourth Amendment, provided that the interaction is consensual. See Florida
v. Bostick, 501 U.S. 429, 434 (1991); see also Florida v. Royer, 460 U.S. 491, 497–
98 (1983). “[L]aw enforcement officers do not violate the Fourth
Amendment by merely approaching an individual on the street or in
another public place, [and] asking him if he is willing to answer some
questions . . . .” Royer, 460 U.S. at 497. Consent to a search is valid if given
voluntarily, a factor that is determined under the totality of the
circumstances. See State v. Davolt, 207 Ariz. 191, 203, ¶ 29, 84 P.3d 456, 468
(2004).

¶20          Here, Officer Schneider testified that Lieser and his
companion both agreed to talk to him, and that Lieser consented to a search
of his bags. Nothing in the record suggests that Lieser or his companion
were coerced or compelled to speak with Officer Schneider and Detective
Steward. Because Lieser voluntarily consented to both searches, there was
no Fourth Amendment violation.

¶21         Lieser next argues his Miranda rights were violated because
he should have been advised of his rights prior to speaking with both



                                        6
                             STATE v. LIESER
                            Decision of the Court

officers. But Miranda warnings are not necessarily required prior to
securing a valid consent to search. See State v. Dean, 112 Ariz. 437, 439, 543
P.2d 425, 427 (1975). When a person is not in custody, police officers are
free to ask general questions without Miranda warnings. See Bostick, 501
U.S. at 434–35. Thus, Lieser’s Miranda claim fails.

¶22            Finally, Lieser asserts that he would have accepted a
proffered plea offer but for ineffective assistance from his attorney. A claim
of ineffective assistance of counsel may only be raised, however, in a Rule
32 proceeding for post-conviction relief, and not on direct appeal. See State
ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007);
State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). We therefore do
not address this argument.

¶23           In addition to considering the arguments raised by Lieser and
in the supplemental briefs, we have reviewed the record for reversible
error. The record reflects that the superior court afforded Lieser all his
rights under the Arizona and U.S. Constitutions and our statutes, and that
the proceedings were conducted in accordance with the Arizona Rules of
Criminal Procedure.

¶24             Lieser was represented by counsel at all stages of the
proceedings. Although Lieser was not present at trial, the superior court
properly instructed the jury not to consider or speculate regarding his
absence, and the superior court had previously warned Lieser that the trial
would proceed in his absence should he fail to appear. See Ariz. R. Crim.
P. 9.1; State v. Vaughn, 163 Ariz. 200, 204, 786 P.2d 1051, 1055 (App. 1989).

¶25           Sufficient evidence supports Lieser’s forgery conviction, and
Lieser’s stipulation that he was a prohibited possessor established a
sufficient basis for his conviction of misconduct involving weapons. And
as explained above, Lieser’s sentence falls within the range prescribed by
law, with proper credit given for presentence incarceration.

¶26            After the filing of this decision, defense counsel’s obligations
pertaining to Lieser’s representation in this appeal will end after informing
Lieser of the outcome of the appeal and 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, 684
P.2d 154, 156–57 (1984). Lieser shall have 30 days from the date of this
decision to proceed, if he desires, with a pro se motion for reconsideration
or petition for review.




                                      7
                    STATE v. LIESER
                   Decision of the Court

                     CONCLUSION

¶27   We affirm Lieser’s convictions and sentences as corrected.




                         :ama




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