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State v. Ofstedahl6/16/2004
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of the Supreme Court
Pursuant to a plea agreement, petitioner Virginia Louise Ofstedahl pled guilty to four counts of aggravated driving under the influence of an intoxicant (DUI) and two counts of endangerment. The trial court imposed a combination of concurrent and consecutive, aggravated sentences totaling fifteen years. Ofstedahl sought to have that plea agreement vacated and the original charges reinstated in a petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., 17 A.R.S., arguing that the agreement permitted some of the six counts to be used as historical prior convictions to enhance her sentences under A.R.S. § 13-604 on other counts covered by the agreement, contrary to State v. Thompson, 200 Ariz. 439, 27 P.3d 796 (2001). This petition for review follows the trial court's denial of the petition. Finding that the trial court abused its discretion in so ruling, see State v. Watton, 164 Ariz. 323, 325, 793 P.2d 80, 82 (1990), we grant review and relief.
The charges against Ofstedahl arose from four incidents, two in July 2001 and two in November 2001, in which she had been arrested for DUI. Ofstedahl and the state attempted to resolve the four resulting criminal prosecutions in a single plea agreement. Citing § 13-604, the agreement provided that the two counts to which Ofstedahl would plead guilty in CR-20013733 would be enhanced by an historical prior conviction in CR- 20012661 and that the two counts to which Ofstedahl would plead guilty in CR-20013781 would be enhanced by two historical prior convictions in CR-20012661 and CR-20012675. Ofstedahl pled guilty and provided a factual basis for all counts at one hearing on January 18, 2002, and the trial court accepted the pleas at that time. On February 28, 2002, the trial court rendered judgment and imposed sentence on all counts, enhancing the sentences in CR-20013733 and CR-20013781 pursuant to § 13-604 as provided for in the plea agreement.
Ofstedahl subsequently filed her petition for post-conviction relief, arguing that her convictions in CR-20012661 or CR-20012675 could not, as a matter of law pursuant to Thompson, be used as historical prior convictions to enhance her sentences for other convictions entered at the same time. As a result, she argued, there could not have been a valid factual basis for the prior convictions. She thus asked that her pleas be vacated and the original charges reinstated. The state responded that it had no opposition to the request, although it cautioned that Ofstedahl would likely face trial and the possibility of considerably more prison time if she succeeded in having the pleas vacated. In her reply, Ofstedahl confirmed the relief she had sought in her petition.
Ofstedahl's argument was based on an accurate reading of Thompson. There, our supreme court construed the phrase "historical prior conviction" in § 13-604(V) to mean that "the conviction on the prior offense must precede the conviction on the present offense." Thompson, 200 Ariz. 439, 6, 27 P.3d at 798. The court also noted that " ne is convicted when there has been a determination of guilt by verdict, finding, or the acceptance of a plea." Id. 7. The court further explained that enhancement under § 13- 604 is not possible "when felonies are tried together." Id. 9. In this context, we can discern no meaningful distinction between convictions rendered by a jury at a single trial for multiple felonies and convictions resulting from the trial court's acceptance of guilty pleas to multiple felonies at the same hearing. Because the trial court accepted Ofstedahl's guilty pleas in all four case
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