Opinion
No. 1 CA-CR 12-0624
01-02-2014
STATE OF ARIZONA, Appellee, v. HORACE DEXTER BECKS, Appellant.
Arizona Attorney General's Office, Phoenix By Colby Mills Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Terry J. Adams Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2011-048456-001
The Honorable M. Scott McCoy, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Colby Mills
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Terry J. Adams
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the Court, in which Judge Patricia K. Norris and Judge Kenton D. Jones joined. SWANN, Judge:
¶1 Horace Dexter Becks appeals from sentences imposed after a jury convicted him of one count of burglary in the third degree and one count of attempted burglary in the second degree. The sole issue raised on appeal is whether the state presented sufficient evidence to prove that Becks had prior convictions for sentence-enhancement purposes. We find sufficient evidence and therefore affirm Becks's sentences, but we modify the judgment of conviction to omit the requirement that Becks pay for the cost of DNA testing and we also amend the sentencing minute entry to correct clerical errors.
FACTS AND PROCEDURAL HISTORY
¶2 A unanimous jury found Becks guilty of one count of burglary in the third degree and one count of attempted burglary in the second degree, both class 4 felonies. At sentencing, the court addressed Becks's counsel: "I understand . . . the defendant will be admitting at least one prior conviction; is that correct[?]" Counsel responded: "Yes, Your Honor. He has two priors that he's going to be admitting today." The court established that Becks had not "had any drugs, alcohol or medication in the last 24 hours," and that he "inten[ded] to admit that [he had] been previously convicted of . . . two felonies[.]"
¶3 The court then explained to Becks that admitting to prior convictions would increase the sentencing range for his current convictions and would render him ineligible for probation. Per the court's request, the prosecutor stated the number of years for the mitigated, minimum, presumptive, maximum, and aggravated sentences if Becks admitted the two prior convictions. Becks twice conferred with his counsel and confirmed to the court that he understood these implications. The court thereafter engaged Becks in the following colloquy:
THE COURT: Okay. By admitting the State's allegation that you have prior convictions, you give up certainBecks's counsel proceeded to present the details of Becks's two nonhistorical prior felony convictions and Becks admitted to both. Becks confirmed that nobody had promised him anything in exchange for admitting to the prior offenses, nor forced or threatened him in any way to do so. The court found that "the Defendant knowingly, intelligently and voluntarily ha[d] admitted the two prior felony convictions" and that "there [was] a factual basis for both admissions."
constitutional rights. And let me tell you what those rights are. You have the right to keep in place your denial of the State's allegation. You are presumed innocent of the allegation. We would have to have a hearing, and the State would have the burden of proving the allegation of these prior convictions by clear and convincing evidence. You would have the right to confront and cross-examine witnesses called by the State and the right to present evidence and to subpoena witnesses to testify in your defense. You would also have the right to testify at this hearing or trial, if you wanted to. You would also have the right to remain silent and refuse to testify. Your silence could not be used against you. Do you understand all those rights, sir?
THE DEFENDANT: Yes, sir.
THE COURT: A little louder for me.
THE DEFENDANT: Yes, sir.
THE COURT: Okay. And do you want to give up those rights and admit the two prior convictions?
THE DEFENDANT: Yes, sir.
¶4 At Becks's continued sentencing, the court asked his counsel if she "agree[d] with the State that defendant is a category two [repetitive offender]." Counsel replied: "Yes, Your Honor, because there is one [sic] prior." The court balanced the mitigating and aggravating factors presented and sentenced Becks to the minimum term of three years on each of the two counts, with the sentences to run concurrently.
¶5 Becks timely appeals. He does not challenge the underlying convictions, but argues only that the court erred in sentencing him as a category two repetitive offender because he "did not admit to having any prior convictions, and the S[t]ate did not prove prior convictions to the Court."
DISCUSSION
¶6 Because Becks did not raise any objections during sentencing, we review his sentences solely for fundamental error. State v. Morales, 215 Ariz. 59, 61, ¶ 10, 157 P.3d 479, 481 (2007); State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). We view the evidence in the light most favorable to upholding the trial court's ruling. See State v. Ellison, 213 Ariz. 116, 126, ¶ 25, 140 P.3d 899, 909 (2006).
¶7 Sentencing enhancement is mandatory under A.R.S. § 13-703(N) if the court finds or the defendant admits to an allegation of prior conviction. Arizona Rule of Criminal Procedure 17.6 provides that "[w]henever a prior conviction is charged, an admission thereto by the defendant shall be accepted only under the procedures of this rule, unless admitted by the defendant while testifying on the stand." "Rule 17 requires the judge to engage in a plea-type colloquy with the defendant to ensure that the admission is voluntary and intelligent." Morales, 215 Ariz. at 60, ¶ 1, 157 P.3d at 480 (citing Ariz. R. Crim. P. 17.2-.3). Before it may accept a plea, the court must inform the defendant of and ensure that he or she understands: (1) the nature of the charge; (2) the nature and range of possible sentences, including any special conditions regarding the sentences; (3) the constitutional rights being waived by entering a plea; and (4) the right to plead not guilty. Ariz. R. Crim. P. 17.2. In addition, the court must "determine that the defendant wishes to forego the constitutional rights of which he or she has been advised, [and] that the plea is voluntary and not the result of force, threats or promises (other than a plea agreement)." Ariz. R. Crim. P. 17.3. These requirements hold equally true when "[defense] counsel concedes the fact of the prior conviction." Morales, 215 Ariz. at 61, ¶ 9, 157 P.3d at 481.
¶8 In this case, Becks qualified himself as a category two repetitive offender by admitting to two nonhistorical prior felony convictions. See A.R.S. § 13-703(B)(1); State v. Smith, 228 Ariz. 126, 130, ¶¶ 15, 17, 263 P.3d 675, 679 (App. 2011) (holding that previous convictions are counted together with current convictions to determine whether defendant qualifies as repetitive offender under A.R.S. § 13-703(A)). The record shows that the court engaged Becks in a complete Rule 17 colloquy before sentencing him. Becks's category two status increased the applicable sentencing range for his convictions of two class 4 felonies and the court properly imposed the minimum sentence for each conviction. See A.R.S. § 13-703(I). We therefore affirm the sentences.
The assertions made by Becks's counsel on appeal cause us concern. Counsel contends that Becks "did not admit to having any prior convictions, and the S[t]ate did not prove prior convictions to the Court." Yet the record on appeal, as it existed on the date counsel filed the opening brief, contained a minute entry from Becks's initial sentencing hearing on August 15, 2012, that read: "The Court finds the Defendant knowingly, intelligently and voluntarily has admitted the two prior felony convictions." After counsel had filed the opening brief, we granted the state's motion to supplement the record with the transcript from the August 15 hearing. That transcript, albeit untimely filed, was consistent with the court's written finding that Becks admitted to two prior felony convictions, and the state understandably cited it in its answering brief. In light of a record that so clearly contradicts Becks's argument on appeal, his counsel would have been well served by filing a brief acknowledging what at best appears to have been a serious oversight in reviewing the record. Alternatively, counsel should have filed a reply brief to address the issue.
¶9 However, our review of the record reveals that in sentencing Becks, the superior court ordered him to "submit to DNA testing for law enforcement identification purposes and pay the applicable fee for the cost of that testing in accordance with A.R.S. § 13-610." In State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013), we held that A.R.S. § 13-610, which authorizes the collection of DNA samples for certain law enforcement purposes, does not authorize the court to impose a DNA testing fee on a convicted defendant. Although neither party addresses this issue on appeal, we hold that under Reyes, the superior court erred by imposing the fee. See Henderson, 210 Ariz. at 571 n.6, ¶ 39, 115 P.3d at 611 n.6 (Hurwitz, J., concurring) ("An appellate court may find fundamental error even if the issue is not raised on appeal by a defendant."); State v. Lewandowski, 220 Ariz. 531, 533, ¶ 4, 207 P.3d 784, 786 (App. 2009) ("[T]he imposition of an illegal sentence constitutes fundamental error."); Jackson v. Schneider, 207 Ariz. 325, 328, ¶ 10, 86 P.3d 381, 384 (App. 2004) ("When a trial court exceeds its sentencing authority, the sentence is void as to the excess portion.").
¶10 Finally, we note that Becks's sentencing minute entry contains two clerical mistakes. The judgment on both counts erroneously classifies them as "Non Repetitive" and the minute entry incorrectly cites A.R.S. § 13-702 (the sentencing statute for first-time felony offenders) under both counts. In fact, the transcript from the sentencing hearing clearly shows that the court sentenced Becks as a category two repetitive offender under § 13-703. "Where there is a discrepancy between the oral sentence and the written judgment, the oral pronouncement of sentence controls." State v. Hanson, 138 Ariz. 296, 304-05, 674 P.2d 850, 858-59 (App. 1983). We therefore correct the sentencing minute entry to reflect that the offenses are "Repetitive" and that the sentences are imposed under A.R.S. § 13-703 and not § 13-702. See State v. Jonas, 164 Ariz. 242, 245 n.1, 792 P.2d 705, 708 n.1 (1990) (modifying written judgment to reflect nonrepetitive nature of defendant's conviction).
CONCLUSION
¶11 For the foregoing reasons, we affirm Becks's sentences but modify the judgment of conviction to omit the requirement that Becks pay for the cost of DNA testing, and amend the sentencing minute entry to correct the errors noted above.