State v. ConsState v. Cons
- Reporters:
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- Before:
- Espinosa
¶ 1 Appellant Mark Anthony Cons was charged with forgery, a class four felony. Pursuant to
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
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 merit-less.
¶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 chаrges. 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
¶ 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
¶ 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
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 burden of showing the cases had not been successfully challenged.
¶ 8 The trial court did not articulate what standard of proof it had applied in
¶ 9 Before the legislature amended
¶ 10 In
Apprendi,
the Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455.
3
The Court’s exception of prior convictions was based in large paid; on its discussion on the nature of recidivist sentencing statutes in
Almendarez-Torres v. United States,
523 U.S. 224, 244, 118 S.Ct. 1219, 1231, 140 L.Ed.2d 350, 368 (1998), and its conclusion in that case that “recidivism ‘does not relate to the commission of the offense, but goes to the punishment only,”’
quoting Graham v. West Virginia,
224 U.S. 616, 629, 32 S.Ct. 583, 588, 56 L.Ed. 917, 923 (1912).
¶ 11 In excepting prior convictions from its holding, the
Apprendi
Court, discussing
Almendarez-Torres,
noted that because the defendant’s guilt necessarily had been proven to a jury beyond a reasonable doubt during the trial on that offense, the required procedural safeguards have been met and the Sixth Amendment concerns have been mitigated. The Court reasoned in
Apprendi
that “there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser
¶ 12 In Harris v. United States, 536 U.S. 545, 556, 122 S.Ct. 2406, 2413-14, 153 L.Ed.2d 524, 537 (2002), the Court upheld as constitutional a federal statute that allowed the trial judge to make a factual finding based on a preponderance of the evidence that the defendant had “brandished” a gun during the commission of a drug offense, thereby increasing the statutory minimum prison term from five to seven years. The Court concluded that its previous decision in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), survived Apprendi. 4
¶ 13 In McMillan, the Court had “sustained a statute that increased the minimum penalty for a crime, though not beyond the statutory maximum, when the sentencing judge found, by a preponderance of the evidence, that the defendant had possessed a firearm.” Harris, 536 U.S. at 550, 122 S.Ct. at 2410, 153 L.Ed.2d at 533. The Court reasoned in Harris that
McMillan and Apprendi are consistent because there is a fundamental distinction between the factual findings that were at issue in those two cases. Apprendi said that any fact extending the defendant’s sentence beyond the maximum authorized by the jury’s verdict would have been considered an element of an aggravated crime — -and thus the domain of the jury— by those who framed the Bill of Rights. The same cannot be said of a fact increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum), for the jury’s verdict has authorized the judge to impose the minimum with or without the finding.
Id. at 557, 122 S.Ct. at 2414, 153 L.Ed.2d at 537-38. The Supreme Court has yet to address directly whethеr the existence of prior convictions that increase the statutory maximum penalty may be based on a lesser standard than beyond a reasonable doubt. But our supreme court’s decision in the pre-Apprendi ease of Hurley sheds additional light on this issue.
¶ 14 The defendant in Hurley had been sentenced under the enhancement provisions of § 13-604.02(A) (enhanced sentencing statute applicable to persons convicted of dangerous offenses while on probation, parole, work furlough, other release from confinement). The statute provided that the court, rather than a jury, was to decide release status. The defendant argued on appeal that unless the statute was interpreted to require the state prove to a jury beyond a reasonable doubt that the defendant was on release at the time of the offense, it had to be declared unconstitutional. The court rejected that argument and then turned to the question of the aрpropriate standard of proof for court-determined release status under § 13-604.02(A). For guidance, the court looked to prior convictions as a sentence enhancement and noted, as we did above, that the very fact that the statute required at that time that a jury decide that issue, had resulted in an automatic application of the heightened standard of proof. But, the court reasoned, because § 13-604.02 permitted the сourt to decide release status, the state was not required to prove that allegation beyond a reasonable doubt but by clear and convincing evidence. 154 Ariz. at 132, 741 P.2d at 265.
¶ 15 Prior convictions and release status essentially have switched places in this regard since our supreme court decided
Hurley.
As Division One of this court noted in
State v. Gross,
201 Ariz. 41, 31 P.3d 815 (App.2001),
Apprendi
effectively overruled
Hurley,
requiring that release status be determined by a jury beyond a reasonable doubt.
See also State v. Benenati,
203 Ariz. 235, 52 P.3d 804 (App.2002) (agreeing with
Gross
and holding that release status adding two years to sentence as еnhancement under
c. Sufficiency of the Evidence
¶ 16 We now turn to the sufficiency of the evidence to support the trial court’s finding that Cons had two prior felony convictions as alleged by the state and subsequently amended. In order to prove a prior conviction, the state must submit positive identification establishing that the accused is the same person who previously was convicted, as well as evidence of thе conviction itself. Terrell. The proper procedure for establishing a prior conviction is for the state to submit a certified copy of the conviction and establish that the defendant is the person to whom the document refers. State v. Hauss, 140 Ariz. 230, 681 P.2d 382 (1984). That is precisely what was done here.
¶ 17 The state submitted and the court admitted into evidence certified copies of the two convictions. The document relating to the Pinal County matter contained Cons’s name, date of birth, and a fingerprint that the stаte’s expert identified as belonging to Cons.Additionally, the trial judge stated she recognized Cons as the person she had sentenced in that case. The Maricopa County documents tied that conviction to the Pinal County case. Read together, those documents stated Cons’s name and date of birth, which were the same as those contained in the Pinal County documents. The sentencing minute entry from the Maricopa County case specified that Cons’s sentence was to be served consecutively to the sentence that had already been imposed in the Pinal County case. Based on the record before us, the court’s findings as to the prior convictions is sustainable under a standard of clear and convincing evidence as well as beyond a reasonable doubt. The record belies Cons’s contention that the court found the felony convictions were established basеd on the fact that initially he had been willing to admit them. Instead, there was overwhelming evidence to support the court’s findings and its enhancement of the sentence.
¶ 18 Cons objected to the admission of the documents on the ground that,
inter alia,
the state had failed to show that the convictions were final and had not been appealed or that he had not been pardoned. The trial court admitted the documents over
¶ 19 We also reject Cons’s claim that, by admitting the documents over his objection that the state had failed to establish the conviction had not been vacated on appeal or in a post-conviction proceeding, the trial court impermissibly shifted the burden of proving the prior convictions to him. There is a presumption of regularity that attaches to convictions. See State v. McCann, 200 Ariz. 27, 21 P.3d 845 (2001). It is the defendant’s burden to present some credible evidence that the case had been reversed or that he had been pardoned. Cons did not satisfy that burden, and it was not for the state to establish the negative, that is, that no appeal, post-conviction proceeding, or pardon had eliminated the prior convictions.
Disposition
¶20 The conviction and sentence are affirmed.
PELANDER, C.J. and ECKERSTROM, J., concurring.
Notes
. Although we do not have the transcript from the August 12, 2002, hearing, the minute entry from that hearing does not state that Cons objected and there is no written objection in the record. Cons intimates in his reply brief that his objection to the exhibits supporting the prior convictions was also an objection to the amendment. He claims that “it is clear from [his] objection to [the exhibits] ... that his defense to the allegation was based on the State‘s failure to properly identify the convictions which it intended to use for enhancement.” That objection to the exhibits was not an objection to the amendment, particularly not on the ground Cons raises on appeal.
. Sentence enhancement, of course, is not the same as sentence aggravation. “Sentence enhancement elevates the entire range of permissible punishment while aggravation and mitigation raise or lower a sentence within that range.” State v. Alvarez, 205 Ariz. 110, n. 1, 67 P.3d 706, 708 n. 1 (App.2003).
. In Blakely v. Washington, - U.S. -, 124 S.Ct. 2531, - L.Ed.2d - (2004), the Supreme Court‘s most recent decision dealing with the Apprendi doctrine, the Court left unchanged that portion of Apprendi excepting the fact of a prior conviction from the rule that a jury must find certain facts that affect the length of a sentence.
. The Court in Blakely distinguished McMillan and Harris but did not invalidate those cases.