State v. Cons

• Decision Date: 22 July 2004
• Docket Number: No. 2CA-CR 2002-0333.,2CA-CR 2002-0333.
• Parties: The STATE of Arizona, Appellee, v. Mark Anthony CONS, Appellant.
• Court: Arizona Court of Appeals

94 P.3d 609

208 Ariz. 409

The STATE of Arizona, Appellee, v. Mark Anthony CONS, Appellant.

No. 2CA-CR 2002-0333.

Court of Appeals of Arizona, Division 2, Department B.

July 22, 2004.

Terry Goddard, Arizona Attorney General, By Randall M. Howe, Phoenix, and Jase Steinberg, for Appellee.

Harriette P. Levitt, Tucson, for Appellant.

OPINION

ESPINOSA, Acting Presiding J.

¶ 1 Appellant Mark Anthony Cons was charged with forgery, a class four felony. Pursuant to A.R.S. § 13-604, the State of Arizona alleged that Cons had two prior felony convictions for sentence enhancement purposes. A jury found Cons guilty of the charged offense, and the trial court found, after a separate bench trial, that the state had proved the prior felony convictions. The trial court then sentenced Cons to the presumptive prison term of ten years. On appeal, Cons contends the court erred by granting the state's request to amend the allegation of prior convictions. He also contends the court applied an incorrect standard of proof at the trial on prior convictions and claims there was insufficient evidence to support its determination based on the correct standard. Finding no error, we affirm.

Background

¶ 2 In March 2002, the state alleged that Cons had been convicted of two felonies as follows:

On May 6, 1998, the defendant committed the crime of Attempted Aggravated Assault, a felony, and on or about June 30, 1999, the defendant was convicted of that crime in the Superior Court of Maricopa County, Arizona, in Cause Number 98007139.

On December 23, 1998, the defendant committed the crime of Aggravated Assault, a class 6 felony, and on or about December 23, 1998, the defendant was convicted of that crime in the Superior Court of Pinal County, Arizona, in Cause Number 99025078.

After the jury found Cons guilty of forgery on July 30, 2002, the trial court set a bench trial on the prior-convictions allegation for August 12, although it was apparently anticipated that Cons would be admitting to the allegations. We do not have the transcript from that hearing, Cons having failed to designate it as part of the record on appeal, Rule 31.8(b)(3), Ariz. R.Crim. P., 17 A.R.S., but the trial court's August 12 minute entry reflects that the court continued the prior convictions trial after defense counsel advised the court that Cons would not be admitting the allegations. At that time, the state obtained Cons's fingerprints, marked for identification purposes exhibits related to the prior convictions, and then moved to amend the indictment to correct errors regarding the dates of the convictions and to add the class of felony as to one conviction. The court granted the motion but ordered the state to file the amended allegations, giving Cons time to object. The following day, the state filed a Motion to Amend Historical Priors in which it requested the following amendments: changing the conviction date in the Maricopa County matter from June 30, 1999, to August 13, 1998, and adding the felony class of four; changing the conviction date in the Pinal County matter from December 23, 1998, to March 15, 1999. The allegation was amended accordingly.

Discussion

a. Amendment of Alleged Priors

¶ 3 Cons contends the trial court committed "reversible error" by permitting the amendment of the allegation of prior felony convictions, insisting the allegation was "fatally defective" and violated his "constitutional right to due process" because the state had alleged convictions "[that] had not occurred on the dates contained in the pleading." But nothing in the record shows that Cons objected to the amendment, nor does he claim in his opening brief that he objected.¹ Therefore, we review the trial court's decision to allow the allegation to be amended for fundamental error. See generally State v. Gendron, 168 Ariz. 153, 812 P.2d 626 (1991)

(failure to raise objection in trial court waives all but fundamental error). Although Cons uses words like "fatally defective," "reversible error," and "constitutional right," he does not specifically argue that the error is fundamental, that is, "error [that] goes to the foundation of the case or deprives [him] of an essential right to his defense." State v. White, 160 Ariz. 24, 31, 770 P.2d 328, 335 (1989). But even if we were to construe his arguments as tantamount to a claim that the error was fundamental, the claim is meritless.

¶ 4 The charges in an indictment and the allegations of a prior conviction are not procedural or substantive equivalents. See State ex rel. McDougall v. Crawford, 159 Ariz. 339, 767 P.2d 226 (App.1989)

. As Division One of this court pointed out in McDougall,

the charging of a substantive offense in a count of an information or complaint cannot be considered as the equivalent of an allegation of a prior conviction.... In this connection, we note that changes in an information or complaint relating to allegations of prior convictions as opposed to changes in the charges in the counts of a complaint or information are not treated similarly in the Arizona Rules of Criminal Procedure.

Id. at 342, 767 P.2d at 229. The court correctly noted that Rule 13.5, Ariz. R.Crim. P., 16A A.R.S., distinguishes in subsections (a) and (b) between the amendment of a charging document to add sentence enhancement allegations and amendments to actual charges. The rule "gives the prosecutor discretion to add allegations of prior convictions within the time limits prescribed by Rule 16.1(b), [Ariz. R.Crim. P., 16A A.R.S.,] but precludes the adding of substantive charges in the counts set forth in a complaint or information." McDougall,159 Ariz. at 342,767 P.2d at 229. And, subsection (b) contains additional limitations on when charges may be amended that are not contained in subsection (a), which applies to adding enhancement allegations. See Ariz. R.Crim. P. 13.5(b) (unless defendant consents, charge may be amended "only to correct mistakes of fact or remedy formal or technical defects"; charging document deemed amended to conform to evidence). Consequently, Cons's reliance on Rule 13.5(b) and State v. Jonas, 26 Ariz.App. 379, 548 P.2d 1191 (1976), is misplaced because both relate to the amendment of actual charges.

¶ 5 Nor is Cons's reliance on State v. Benak, 199 Ariz. 333, 18 P.3d 127 (App.2001), availing. Based on notions of fundamental fairness and due process, Division One concluded in that case that A.R.S. § 13-604.04, which applies to enhanced sentencing for violent offenses, applies to A.R.S. § 13-901.01, which provides mandatory probationary terms and other sentencing restrictions for certain drug-related offenses. Thus, the state must give notice to a defendant if it is seeking to enhance the defendant's sentence with a prior conviction for a violent crime pursuant to § 13-901.01(B). The court found that although the state's allegation that the defendant had prior, non-dangerous felonies and its disclosure regarding the same gave the defendant sufficient notice that the state was seeking to enhance the sentence pursuant to § 13-604, it was not sufficient notice of the state's intent that the defendant be ineligible for probation because of his prior commission of a violent offense. The state's allegation referred to certain subsections of § 13-604, but it did not specifically refer to § 13-604.04, nor did it mention "violent crime." Thus, Benak essentially involved the absence of a specific enhancement allegation, not, as here, the amendment of an allegation that provided ample notice of precisely which prior offenses the state was relying on to enhance the sentence.

¶ 6 Finally, and perhaps most importantly, by amending the allegation to change the dates of conviction and specify the class of felony, the court did not so alter the nature of the allegation that Cons was deprived of the notice to which he was entitled. The dates of the offenses were the same, and Cons had ample notice of precisely which prior convictions the state was alleging. See State v. Waggoner, 144 Ariz. 237, 697 P.2d 320 (1985)

(constitutional principles of due process entitle defendant to notice of range of potential sentence before trial); Benak, 199 Ariz. 333, ¶ 16, 18 P.3d at 131,

quoting State v. Bayliss, 146 Ariz. 218, 219, 704 P.2d 1363, 1364 (App.1985) ("Notice ... must be such that the defendant is not `misled, surprised or deceived in any way by the allegations' of prior convictions."); State v. Rodgers, 134 Ariz. 296, 655 P.2d 1348 (App.1982) (allegations of prior convictions must be made before trial to give defendant notice of potential enhancement); see also § 13-604(P) (prescribing statutory procedures for notifying defendant that state seeks enhanced penalty). Indeed, it was readily apparent from the face of the state's allegations that there was a clerical error with respect to the Pinal County case because Cons could not have committed the offense on December 23, 1998, and been convicted of the charge the same day. The amendment reflected changes that were immaterial; Cons was not deprived of his due process rights, and the trial court did not err, fundamentally or otherwise, in permitting the state to amend its allegation of prior convictions.

b. Standard of Proof

¶ 7 Cons next contends that the trial court was required to find the state had proven the prior convictions beyond a reasonable doubt and that the evidence presented did not satisfy that standard. Cons intimates the evidence was insufficient because (1) there was insufficient foundation for the court's admission of the state's exhibits into evidence, which were certified copies of the convictions and related documents; (2) the court improperly relied on the fact that Cons had been willing to admit to the prior conviction at one point; and (3) the court shifted the burden to him to show that an appeal or other post-conviction challenge had been successful as to the convictions or that he had been pardoned, rather than imposing on the state the...