Opinion
2 CA-CR 2012-0050
10-29-2012
THE STATE OF ARIZONA, Appellee, v. JOSEPH GABRIEL LOPEZ, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and Joseph L. Parkhurst Tucson Attorneys for Appellee Lori J. Lefferts, Pima County Public Defender By Kristine Maish Tucson Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20073101
Honorable Paul E. Tang, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz, and
Joseph L. Parkhurst
Tucson
Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender
By Kristine Maish
Tucson
Attorneys for Appellant
VÁSQUEZ, Presiding Judge. ¶1 Joseph Lopez appeals from the sentence imposed following his resentencing pursuant to the trial court's grant of his petition for post-conviction relief. He asserts the trial court erred by relying on his admission before his first sentencing to having two prior felony convictions. Finding no error, we affirm. ¶2 Lopez was convicted of first-degree burglary and theft by control of property having a value of at least $3,000 but less than $25,000. At a status conference, he admitted to having been convicted of aggravated assault in 1993 and 2007. The trial court imposed enhanced, aggravated prison terms of twenty years for burglary and eighteen years for theft by control. On appeal, we determined Lopez had been wrongly convicted of theft by control as a class three felony and modified his conviction to reflect a class four felony. We vacated his sentence on that count, but otherwise affirmed his convictions and sentences. State v. Lopez, No. 2 CA-CR 2008-0311, ¶ 9 (memorandum decision filed Dec. 29, 2009). He subsequently was resentenced to an enhanced, presumptive, ten-year prison term for theft by control. ¶3 Lopez also sought post-conviction relief claiming his burglary sentence had been aggravated improperly and his appellate counsel had been ineffective in failing to raise that argument. The state conceded error and the trial court granted relief. At resentencing, the court affirmed Lopez had admitted the previous convictions and imposed an enhanced, mitigated fourteen-year prison term. This appeal followed. ¶4 Lopez contends the trial court was not permitted to accept his previous admission that he had two prior felony convictions and the state instead was "required to re-prove the prior historical felony convictions." He acknowledges he did not raise this argument in the trial court and has forfeited relief for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). Fundamental error requires the defendant to establish that: (1) an error occurred; (2) it was fundamental; and (3) it resulted in prejudice. See id. ¶5 Lopez has not shown error. A defendant's "admission of the truth of the allegation of prior conviction [is] conclusive in all subsequent proceedings." Wallace v. State ex rel. Eyman, 5 Ariz. App. 377, 379, 427 P.2d 358, 360 (1967). Lopez fails to address Wallace, despite the state having cited it in its answering brief. He instead relies primarily on State v. Pandeli, 215 Ariz. 514, 161 P.3d 557 (2007), but nothing in that case overrules or alters the sensible rule described in Wallace. In Pandeli, the defendant, who had been sentenced to death for murder following a remand for resentencing, argued it had been "unnecessary for the jury to find the existence of his prior conviction" because a trial judge had already found that conviction at a previous sentencing proceeding before the first death sentence had been vacated. 215 Ariz. 514, ¶¶ 1, 14-15, 161 P.3d at 563, 565. The supreme court rejected that argument, concluding that former A.R.S. § 13-703.01(P) required that finding to be made by a jury—not by a trial court. Id. ¶ 15. Outside the death penalty context, however, the fact of a prior conviction either may be found by the court or admitted by the defendant. See Blakely v. Washington, 542 U.S. 296, 301 (2004); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); State v. Price, 217 Ariz. 182, ¶ 8, 171 P.3d 1223, 1225-26 (2007). Thus, Pandeli does not suggest that the state is required to prove at resentencing prior convictions a defendant already has admitted. ¶6 Lopez nonetheless argues the state should be required to prove the fact of the prior convictions at resentencing because his first sentencing was "flawed." But the flaws in Lopez's first sentencing were wholly unrelated to his admission. Lopez does not suggest his admission was not compliant with Rule 17, Ariz. R. Crim. P., or identify any other error—certainly none that, despite his suggestion, "undermine the reliability and integrity of the entire proceeding." (Emphasis removed.) And Lopez provides no reasoned basis for us to conclude those sentencing errors should invalidate his voluntary, knowing, and intelligent admission to having two previous felony convictions. His sentence was set aside; his admission was not. ¶7 Lopez also identifies as a "concern" that his 1993 conviction does not appear on its face to be a valid historical prior conviction as defined by statute. To the extent Lopez intends this as a separate argument that his sentence is improper, he fails to support it with citation to authority or develop any claim the trial court erred in relying on the first sentencing court's finding that the 1993 felony conviction was a historical prior conviction justifying an enhanced sentence. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (brief shall contain argument "with citations to the authorities, statutes and parts of the record relied on"); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (insufficient argument on appeal waives claim). Insofar as Lopez suggests his previous enhanced sentences were flawed for the same reason, he has failed to raise this claim no fewer than five times—during his first sentencing, his first appeal, his resentencing on the theft by control conviction, his post-conviction relief proceeding, and his resentencing on his burglary conviction. ¶8 Finally, even if we somehow could address the merits of this claim, Lopez has not provided this court with the transcript of the hearing at which he admitted his convictions or the exhibit, an Arizona Department of Corrections "PenPak," introduced at that hearing. We presume trial courts know and follow the law, see State v. Williams, 220 Ariz. 331, ¶ 9, 206 P.3d 780, 783 (App. 2008), and in the absence of the transcript, we presume it supports the first sentencing court's determination that Lopez's 1993 conviction was a historical prior felony conviction, see State v. Mendoza, 181 Ariz. 472, 474, 891 P.2d 939, 941 (App. 1995). For all the above reasons, we reject this claim. ¶9 The sentence imposed is affirmed.
At the time of Lopez's offenses, historical prior felony convictions were defined by former A.R.S. § 13-604(W)(2). See 2007 Ariz. Sess. Laws, ch. 248, § 1. That definition has been renumbered as A.R.S. § 13-105(22) but has not been changed substantively. See 2008 Ariz. Sess. Laws, ch. 301, §§ 10, 15.
__________________
GARYE L. VÁSQUEZ, Presiding Judge
CONCURRING: __________________
PHILIP G. ESPINOSA, Judge
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VIRGINIA C. KELLY, Judge