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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DONALD G. FOUCH, Appellant.

No. 1 CA-CR 13-0902

Appeal from the Superior Court in Maricopa County

No. CR2012-144793-002

The Honorable Jeanne M. Garcia, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jana Zinman

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Peg Green

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge John C. Gemmill delivered the decision of the Court, in 

which Judge Kenton D. Jones and Judge Donn Kessler joined.
STATE v. FOUCH

Decision of the Court

2

G E M M I L L, Judge:

¶1 Donald Gene Fouch appeals his conviction and sentence for 

theft of means of transportation. Fouch’s sole argument on appeal is that 

the trial court erred by failing to conduct a complete colloquy before 

accepting his stipulation to two prior felonies. For the following reasons, 

we affirm. 

FACTS AND PROCEDURAL HISTORY

¶2 Fouch was charged with one count of theft of means of 

transportation, a class three felony. On August 17, 2012, Enterprise Rental 

Cars reported a black 2012 Camaro stolen. On August 22, 2012, K.W., a 

plainclothes police officer, drove through a neighborhood and noticed a 

Camaro parked in a carport. K.W. noticed a Hispanic male, later identified 

as Ruiz, removing the license plate from the Camaro. K.W. parked his 

vehicle and observed. There was a silver Nissan Versa parked behind the 

Camaro.

¶3 A man later identified as Fouch appeared, went out into the 

street, and looked both ways. Ruiz put the license plate in the trunk of the 

Nissan. Ruiz got into the driver’s seat of the Nissan and Fouch got into the 

driver’s seat of the Camaro. K.W. followed the cars as they drove off.

¶4 Fouch parked the Camaro at an apartment complex less than 

a mile away from the house. Fouch got out of the car and used his foot to 

close the door. Fouch got into the Nissan with Ruiz, and they drove off. 

The police subsequently stopped the Nissan. Fouch told the police that he 

did not know who the Camaro belonged to, and that a woman paid him 

fifty dollars to pick up the car and dump it. Fouch also told the police that 

the woman told him he could take anything he wanted out of the car. 

According to Fouch, Ruiz was going to use the sticker from the license plate 

that he removed from the Camaro for a motorcycle that Ruiz owned.

¶5 At trial, Fouch told the jury that he drove the car because an 

unknown person called him and asked him to move it so Enterprise could 

pick it up. Fouch testified that he never saw Ruiz remove the license plate 

from the Camaro and never saw it inside the Nissan. Fouch further testified 

that he was supposed to get fifty dollars for moving the car; he never told 

the police he was being paid to “dump” the car; he was never told that he 

could take whatever he wanted from the car; he had no idea it was stolen; 

and he believed it was going back to Enterprise.
STATE v. FOUCH

Decision of the Court

3

¶6 Fouch also testified he had two prior felony convictions. He 

admitted to convictions in CR 2003-016774 for an offense on June 26, 2003 

and in CR 2003-023151 for an offense on June 9, 2003. After the jury found 

Fouch guilty of theft of means of transportation, the trial court held a trial 

on the prior convictions. The court admitted four certified minute entries 

offered by the State, showing that Fouch had four prior felonies from 

Maricopa County Superior Court. The parties notified the court that they 

had entered into a stipulation regarding the prior felony convictions. The 

parties agreed that there were a total of four prior felony convictions, and 

two were allegeable as historical priors.

¶7 The State then requested that the court conduct a brief 

colloquy “advising the defendant that he has a right to a hearing, and 

waiving that right in this priors trial.” The court stated to Fouch, “[y]ou’ve 

heard the conversation. What we are interested in is whether you’re going 

to make the state prove that you have two prior felony convictions or 

whether you’re willing to agree that they exist.” “They exist,” Fouch 

responded.

¶8 The court gave the State the opportunity to make an 

additional record. The State noted that the priors were proved by 

documentation and that Fouch admitted to two priors while on the stand 

during trial. The court pointed out that neither party elicited the details of 

the prior convictions. The court then found that Fouch had two historical 

prior felony convictions putting him in a category three sentencing range. 

The trial court sentenced Fouch to a mitigated sentence of 7.5 years.

¶9 We have jurisdiction over Fouch’s timely appeal, in 

accordance with Arizona Constitution Article 6, Section 9, and Arizona 

Revised Statutes (“A.R.S”) §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and 12-

4033(A)(1) (2010). 

DISCUSSION

¶10 On appeal, Fouch argues that the trial court’s failure to 

perform a complete colloquy before accepting Fouch’s stipulation to prior 

convictions was fundamental error. The State contends that Fouch is not 

entitled to remand for resentencing because: (1) Fouch admitted to two 

prior convictions while testifying at trial; (2) the State submitted certified 

copies of documents supporting the prior convictions and the court entered 

the documents into evidence; (3) the trial court conducted a colloquy; and 

(4) Fouch has not asserted on appeal that he would not have admitted his 
STATE v. FOUCH

Decision of the Court

4

prior convictions if a more complete colloquy had been conducted. We 

agree with the State’s position. 

¶11 Fouch did not object to any colloquy deficiencies during the 

sentencing hearing. As a result, our review is limited to a determination of 

fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 

607 (2005). In order to prevail, a defendant must establish that fundamental 

error exists and that, as a result of this error, he could not have received a 

fair trial. Id. at ¶ 20. 

¶12 The trial court performed an incomplete colloquy before 

accepting Fouch’s stipulation to prior convictions. In regard to sentencing 

enhancement, Arizona Rule of Criminal Procedure (“Rule”) 17.6 requires 

that the trial judge conduct a colloquy when the defendant admits or 

defense counsel stipulates to prior convictions. State v. Morales, 215 Ariz. 

59, 60, ¶ 1, 157 P.3d 479, 480 (2007). The reason for the colloquy is to ensure 

that the defendant’s admission is made “voluntarily and intelligently.” Id. 

at 61, ¶ 8, 157 P.3d at 481. 

¶13 Rule 17.2 provides guidance on the elements required in the 

colloquy. State v. Geeslin, 221 Ariz. 574, 578, ¶ 13, 212 P.3d 912, 916 (App. 

2009) (applying the applicable requirements set forth in Rule 17.2 to Rule 

17.6) vacated in part on other grounds by 223 Ariz. 553, 225 P.3d 1129 (2010). 

Rule 17.6, as interpreted, requires the court to address the following 

elements in the colloquy: (1) the nature of the allegation against the 

defendant, (2) the sentencing range faced by the defendant if he admits or 

stipulates to prior felonies, (3) the waiver of the defendant’s right to require 

the State to prove his prior convictions, and (4) the defendant’s waiver of 

additional constitutional rights. Ariz. R. Crim. P. 17.2, 17.6; Geeslin, 221 

Ariz. at 578, ¶ 13, 212 P.3d at 916. 

¶14 In the present case, the trial court engaged in a colloquy with 

Fouch but did not specifically address the sentencing range faced by Fouch 

if he stipulated to the prior felonies or Fouch’s waiver of additional 

constitutional rights. Because Fouch admitted to the prior convictions 

without the benefit of a complete colloquy, we conclude that the limited 

colloquy was at least a technical, fundamental error. 

¶15 We must next evaluate whether the fundamental error 

resulted in prejudice against Fouch. To succeed on appeal on the basis of 

fundamental error, a defendant must ordinarily show both fundamental 

error and that the error caused him prejudice. Henderson, 210 Ariz. at 567, 

¶ 20, 115 P. 3d at 607. A showing of prejudice requires Fouch to 
STATE v. FOUCH

Decision of the Court

5

demonstrate that he would not have admitted to the prior convictions had 

the trial judge delivered a complete Rule 17.6 colloquy. Morales, 215 Ariz. 

at 62, ¶ 11, 157 P.3d at 482. This court has held that when prejudice cannot 

be determined on the record, remand to the trial court for an evidentiary 

hearing may be appropriate. See State v. Carter, 216 Ariz. 286, 291, ¶ 23, 165 

P.3d 687, 692 (App. 2007). 

¶16 No remand is needed in this case. As in Morales, the record 

already contains evidence of Fouch’s four prior felony convictions. See

Morales, 215 Ariz. at 62, ¶ 13, 157 P.3d at 482 (explaining remand not 

necessary if evidence proving a defendant’s prior convictions already exists 

in the record). In this case, the State offered certified copies of records of 

the defendant’s prior convictions into evidence at the sentencing hearing, 

and the records were admitted without objection. Fouch does not challenge 

the authenticity of these records. As our supreme court explained, “[i]n 

these circumstances, there would be no point in remanding for a hearing 

merely to again admit the conviction records.” Morales, 215 Ariz. at 62, ¶ 

13, 157 P. 3d at 482. See also State v. Gonzales, 233 Ariz. 455, 458, ¶ 11, 314 

P.3d 582, 585 (App. 2013) (holding that “an unobjected-to presentence 

report showing a prior conviction to which the defendant stipulated 

without the benefit of a Rule 17.6 colloquy conclusively precludes prejudice 

and a remand under Morales”).

CONCLUSION

¶17 For these reasons, we affirm Fouch’s conviction and sentence.