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State v. Ofstedahl6/16/2004
s at the same time, none of the ensuing convictions preceded any others. Accordingly, they could not be used as historical prior convictions to enhance the sentences for any of the other convictions encompassed by the same plea agreement.
In its order denying the petition, the trial court found that Thompson was not controlling, relying instead on Davis v. Superior Court, 126 Ariz. 568, 617 P.2d 520 (1980); State v. Walker, 185 Ariz. 228, 914 P.2d 1320 (App. 1995); and State v. Hanson, 138 Ariz. 296, 674 P.2d 850 (App. 1983). These cases interpreted former § 13-604(H), which expressly permitted convictions for crimes not committed on the same occasion but consolidated for trial to be used as prior convictions -- colloquially known as " Hannah priors" -- for sentence enhancement purposes. See State v. Williams, 169 Ariz. 376, 380, 819 P.2d 962, 966 (App. 1991). However, the legislature deleted that provision in its 1993 revision of the sentencing code. 1993 Ariz. Sess. Laws, ch. 255, § 7. Accordingly, these cases are not applicable to Ofstedahl's issue.
The same legislation essentially supplanted the use of Hannah priors under former § 13-604(H) with a new statute, A.R.S. § 13-702.02, which provides for less severe sentence enhancement for multiple convictions not committed on the same occasion. See 1993 Ariz. Sess. Laws, ch. 255, § 12; State v. Christian, 205 Ariz. 64, n.11, 66 P.3d 1241, 1245 n.11 (2003). Indeed, the clear lesson from Thompson is that § 13-702.02 is the applicable sentencing statute for cases such as Ofstedahl's in which multiple prosecutions are resolved through a comprehensive plea agreement and all the pleas are entered at the same time. However, Ofstedahl's plea agreement did not contemplate sentencing under § 13-702.02, and neither party sought resentencing under § 13-702.02 as a resolution to this problem below.
A critical element of the plea agreement here was that some of the resulting convictions could be used as historical prior convictions under § 13-604 to enhance Ofstedahl's sentences for others of the resulting convictions. When, as here, admission to a prior conviction for sentence enhancement purposes is part of a plea agreement, a factual basis for the prior conviction must be established, just as a factual basis is required for each element of the substantive offense. State v. Draper, 123 Ariz. 399, 401, 599 P.2d 852, 854 (App. 1979); see also Ariz. R. Crim. P. 17.6, 16A A.R.S. Because no historical prior convictions under § 13-604 were legally possible under the terms and circumstances of this guilty plea process, Ofstedahl cannot have provided a factual basis for any historical convictions when she pled guilty to the six charges here. And, although the plea agreement provided that sentences for only four of the six convictions would be illegally enhanced by prior convictions with no factual basis, it is clear that the improper provisions tainted the entire, comprehensive plea arrangement. Accordingly, the appropriate disposition is to vacate the entire plea agreement and reinstate the original charges. See Draper, 123 Ariz. at 401, 599 P.2d at 854.
The trial court abused its discretion in denying the petition on the ground that Ofstedahl's claim was not controlled by Thompson. See State v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983) ("abuse of discretion" includes situations "where the reasons given by the court for its action are... legally incorrect"). We appreciate the trial court's observation that applying Thompson in this context might "create absurdities": the court noted that sentencing under § 13-604 would have been permissible under Ofstedahl's reading of Thompson if it merely had calendared the
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