State v. Franco

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FRANCISCO CORONADO FRANCO, JR., Appellant.

No. 1 CA-CR 17-0349
FILED 9-20-2018

Appeal from the Superior Court in Maricopa County
No. CR2016-001790-001
The Honorable Erin Otis, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jason Lewis
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant

MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.
 STATE v. FRANCO
Decision of the Court

M c M U R D I E, Judge:

¶1 Francisco Coronado Franco, Jr., appeals his convictions and
sentences for four crimes: (1) burglary; (2) possession of dangerous drugs;
(3) possession of narcotic drugs; and (4) possession of drug paraphernalia.
He argues the superior court erred by granting the State’s untimely motions
alleging historical prior felony convictions and aggravating circumstances.1
For the following reasons, we affirm Franco’s convictions and sentences.

FACTS 2 AND PROCEDURAL BACKGROUND

¶2 Franco was initially charged with burglary for breaking into
the victim’s home. Regarding the initial charge, the State alleged Franco had
four historical prior felony convictions and the offense involved the
aggravating factor of causing physical, emotional, or financial harm to the
victim. On the State’s motion, the court dismissed that case without
prejudice. Franco was subsequently charged with the same burglary and
additional drug offenses. The State did not file the previously-filed
sentencing allegations in the new case until the day of trial. Overruling
Franco’s objection to the untimely filings, the court permitted the State to
file the allegations.

¶3 Franco was convicted of all charged crimes. The jury found
the offense caused physical, emotional, or financial harm to the victim and
Franco was sentenced to concurrent sentences totaling 11.25 years. Franco
timely appealed his convictions and sentences. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona

1 Franco also argues the court erred by granting the State’s untimely
motion to impeach him with his prior convictions. Because Franco did not
testify at trial, he has waived this argument. State v. White, 160 Ariz. 24,
30–31 (1989).

2 We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against Franco. See State v. Valencia, 186 Ariz. 493, 495 (App. 1996). Additionally, documents containing relevant
facts are not in the record. The State filed appendices—which Franco did
not object to—providing those documents. We take judicial notice of these
records. See In re Sabino R., 198 Ariz. 424, 425, ¶ 4 (App. 2000) (appellate
courts may take judicial notice of anything which the superior court could
take notice of, including the superior court’s “own records or those of
another action tried in the same court”).

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 STATE v. FRANCO
Decision of the Court

Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031,
and -4033(A)(1).

DISCUSSION

¶4 Franco argues the court abused its discretion by allowing the
State to file the sentencing allegations because they were untimely. We
review a superior court’s decision permitting the State to amend the
indictment for abuse of discretion. See State v. Sammons, 156 Ariz. 51, 55
(1988). Even if the court abuses its discretion, we will only reverse if the
error caused prejudice. See State v. Valverde, 220 Ariz. 582, 585, ¶ 11 (2009).

¶5 The State, at its discretion, may amend an indictment to add
allegations of prior convictions or aggravating factors within the time limits
of Arizona Rule of Criminal Procedure 16.1(b). Ariz. R. Crim. P. 13.5(a)
(2017) (amended 2018). 3 The State must generally file such motions no later
than 20 days before trial. Ariz. R. Crim. P. 16.1(b) (amended 2018). Motions
not filed within this period “shall be precluded” unless granted by leave of
the court. Ariz. R. Crim. P. 16.1(c) (amended 2018).

¶6 Notwithstanding the mandatory language in the rule, the
superior court had the explicit discretion to extend the time for filing
motions and the implicit discretion to hear untimely filed motions. See State
v. Colvin, 231 Ariz. 269, 271, ¶ 7 (App. 2013). The preclusive effect of Rule
16.1(c) existed “to insure orderly pretrial procedure in the interests of
expeditious judicial administration.” Id. at 272, ¶ 7. The purpose of the Rule
was to protect judicial interests rather than the parties’ interests. Id.
Therefore, the superior court had the discretion to allow the late filing
subject to review only for abuse. State v. Vincent, 147 Ariz. 6, 8–9 (App.
1985).

¶7 Here, the superior court did not abuse its discretion by
granting the State’s motions. As the State concedes, the motions were
untimely filed. But Franco received notice of the contents of the motions
months before they were filed. Regarding the allegations of the aggravating
circumstances, the State filed the same motion in the initial case before that
case was dismissed. Moreover, during plea negotiations, the State, the
court, and Franco’s counsel discussed with Franco the effects of historical
priors on the amount of time he faced, and the aggravating circumstances

3 Because this case was tried in 2017, we apply the 2017 Rules of
Criminal Procedure.

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 STATE v. FRANCO
Decision of the Court

surrounding the charges in this case. Specifically, regarding the allegation
of prior felony convictions, Franco was informed that he had at least two
historical prior felony convictions and how those convictions could affect
his sentence in the immediate case if convicted. The State warned Franco
that “because you do have at least two prior felony convictions . . . you
could receive up to 25 years in the Department of Corrections just on [the
burglary] charge.” In rejecting the State’s plea offer, Franco stated he
understood the amount of prison time he could receive with two historical
prior felonies and the finding of aggravating factors. Thus, Franco was
aware that the State intended to file sentencing allegations regarding his
prior felony convictions long before they were filed.

¶8 The untimely motion alleging historical prior felonies did not
prejudice Franco’s ability to respond to the allegations. Franco did not
dispute the existence of his historical prior convictions and voluntarily
admitted to them. There is nothing in the record to indicate that his lack of
defending against the allegations was based on late disclosure. Absent a
showing of prejudice, we cannot find the court abused its discretion by
permitting the State to add the sentencing allegations. See Valverde, 220
Ariz. at 585, ¶ 11.

CONCLUSION

¶9 Franco’s convictions and sentences are affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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