State v. Swift Hawk

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TONI RENEE SWIFT HAWK, Appellant.

No. 1 CA-CR 23-0514
1 CA-CR 24-0106
(Consolidated)

FILED 11-05-2024

Appeal from the Superior Court in Yavapai County
No. P1300CR202100539, P1300CR202200373
The Honorable Krista M. Carman, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Michael T. O'Toole
Counsel for Appellee

C. Kenneth Ray II, P.L.L.C., Prescott
Counsel for Appellant
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MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge David D. Weinzweig joined.

M O R S E, Judge:

¶1 Toni Renee Swift Hawk appeals the superior court's denial of
her motion to modify her sentence, arguing (1) she was improperly
sentenced as a category-three repetitive offender because the State did not
strictly comply with A.R.S. § 13-703(N) ("Section 703(N)"), and (2) her
sentence is barred by double jeopardy. For the following reasons, we
affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The State indicted Swift Hawk on two felony counts:
possession or use of narcotic drugs, a class 4 felony (Count 1); and
possession of drug paraphernalia, a class 6 felony (Count 2). The State did
not allege Swift Hawk's prior felony convictions in the indictment for
sentence enhancement purposes, as required by Section 703(N). And it
never amended the indictment to allege the prior convictions. Ariz. R.
Crim. P. 13.5(a), 16.1(b).

¶3 However, the State alleged under A.R.S. § 13-708 that Swift
Hawk committed the charged felonies while on probation for two prior
felony convictions. The State also filed supplemental disclosures listing
Swift Hawk's prior felony convictions and stating its intent to use the
convictions at trial. Finally, at a settlement conference, the State detailed
the terms of its plea offer and gave Swift Hawk a Donald advisement. See
State v. Donald, 198 Ariz. 406, 413, ¶ 14 (App. 2000) ("[O]nce the State
engages in plea bargaining, the defendant has a Sixth Amendment right to
be adequately informed of the consequences before deciding whether to
accept or reject the offer.").

¶4 During the Donald advisement, the court acknowledged Swift
Hawk's two prior class 6 felonies and noted she was on probation for those
offenses. Both the court and prosecutor explained Swift Hawk's status as a
category-three repetitive offender based on her prior felony convictions.
The court advised Swift Hawk she would receive a minimum sentence of

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ten years on Count 1 if the State proved her prior felony convictions and
on-probation status at trial. Swift Hawk's counsel did not object to the
prosecutor and court classifying Swift Hawk as a category-three repetitive
offender. Nor did her counsel challenge the possible sentence in the
advisement. When asked, Swift Hawk affirmed she understood the
sentence she faced if convicted at trial.

¶5 After the Donald advisement, Swift Hawk rejected the State's
plea and proceeded to trial. The jury convicted Swift Hawk on both counts
and found she committed the offenses while on felony probation.

¶6 The court sentenced Swift Hawk to presumptive concurrent
terms as a category-three repetitive offender on both felonies—10 years on
Count 1 and 3.75 years on Count 2. Had Swift Hawk been sentenced as a
first-time offender, her presumptive sentences would have ranged from 2.5
to 3.75 years on Count 1, and 1 to 2 years on Count 2. A.R.S. § 13-702(D).

¶7 Swift Hawk, represented by new counsel, appealed the
judgment and sentence ("first appeal") and moved to modify the
presumptive ten-year sentence. The superior court heard oral argument on
Swift Hawk's motion and declined to modify her sentence. Swift Hawk
appealed the superior court's ruling ("second appeal") and moved to
consolidate the two cases. We consolidated the appeals in March 2024.

¶8 In Swift Hawk's first appeal, her attorney filed an Anders brief,
alleging he found no "error or arguable questions of law" except for the
issue raised in Swift Hawk's second appeal. This Court struck the brief
because Arizona does not recognize an "Anders-hybrid" review in an appeal
of a conviction and sentence. See State v. Scott, 187 Ariz. 474, 477–78 (App.
1996) (finding there is "no Anders-hybrid type of brief" and declining to
"search the record for appealable issues" when the defendant submitted a
brief arguing issues on the merits). Thus, we only address the issues raised
in Swift Hawk's second appeal challenging the superior court's refusal to
modify her sentence.

¶9 We have jurisdiction under A.R.S. §§ 12-120.21(A)(1) and 13-
4031, and -4033(A).

DISCUSSION

I. Section 703(N) Violation.

¶10 Swift Hawk argues the superior court illegally sentenced her
as a category-three repetitive offender. She contends the court lacked the

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authority to impose an enhanced sentence because the State did not
properly allege her prior convictions under Section 703(N). We review the
legality of a sentence de novo. State v. Johnson, 210 Ariz. 438, 440, ¶ 8 (App.
2005). Because Swift Hawk did not object to her sentencing in the superior
court, she bears the burden of demonstrating fundamental, prejudicial
error. State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19–20 (2005).

¶11 In Arizona, a defendant may be sentenced as a repetitive
offender if "an allegation of prior conviction is charged in the indictment
. . . and admitted or found by the court." Section 703(N). If the State does
not initially allege the prior convictions in the indictment, it may amend the
charging document any time before trial, "unless the allegation is filed
fewer than twenty days before the case is actually tried and the court finds
on the record that the person was in fact prejudiced by the untimely filing."
Id.; see Ariz. R. Crim. P. 13.5(a) (allowing the State to amend indictments to
allege prior convictions).

¶12 The State concedes it never formally alleged Swift Hawk's
prior felony convictions as required by Section 703(N). But Swift Hawk is
only entitled to resentencing if she was prejudiced by the State's procedural
error. Henderson, 210 Ariz. at 567, ¶ 20 ("To prevail under [fundamental
error review], a defendant must establish . . . that the error in h[er] case
caused h[er] prejudice."). And "a defendant is not prejudiced by
noncompliance with A.R.S. § 13-604(K) [now Section 703(N)] provided
[s]he is on notice before trial that the prosecution intends to seek the
enhanced punishment provisions of the statute." State v. Williams, 144 Ariz.
433, 442 (1985). The defendant must receive notice of the State's allegation
of prior convictions such that she is not "misled, surprised or deceived in
any way by the allegations." State v. Bayliss, 146 Ariz. 218, 219 (App. 1985).

¶13 Swift Hawk received abundant actual notice from the State's
A.R.S. § 13-708 allegation, pre-trial supplemental disclosures, and Donald
advisement.1 See supra ¶¶ 3–4. Because Swift Hawk had actual notice of

1 Swift Hawk cites Arizona Rule of Evidence 410 and argues the court
improperly used "plea discussions" from the settlement conference/Donald
advisement to amend the indictment with her prior convictions. Ariz. R.
Evid. ("Rule") 410 (barring admission of a defendant's plea-discussion
statements against her). But a Donald advisement is not a plea negotiation.
State v. Mendoza, 248 Ariz. 6, 16–17, ¶ 18 (App. 2019). Rather, it is a "merely
informational" proceeding in which the court "informs the defendant of the
plea offer and the sentencing range faced if convicted." Id. at 17, ¶ 18. The

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the State's intent to enhance her sentence under Section 703(N), she suffered
no prejudice. See Williams, 144 Ariz. at 442; cf. State v. Lehr, 227 Ariz. 140,
154, ¶¶ 69–70 (2011) (finding the state's procedural error did not prejudice
the defendant because the defendant "had notice of the prior convictions
the State intended to use as aggravating circumstances").

¶14 Indeed, Swift Hawk does not argue the State failed to provide
her actual notice. In her opening brief, she only asserts a lack of legal notice
under Section 703(N). And she failed to address the litany of cases the State
cites to show that strict statutory compliance was unnecessary to notify
Swift Hawk of the State's intent to enhance her sentence as a repetitive
offender. State v. Jobe, 157 Ariz. 328, 330 (App. 1988) (permitting sentence
enhancement despite the state's filing error because the defendant had
actual notice of its intent to seek enhanced punishment); State v. Cropper, 205 Ariz. 181, 185, ¶ 17 (2003) ("Because [the defendant] had actual,
although oral, notice of the prosecutor's intent to use the aggravated assault
conviction as a prior serious offense aggravating circumstance and the
delay caused him no prejudice, the State adequately noticed the prior
serious conviction aggravating circumstance."); see also State v. Roseberry, 210 Ariz. 360, 366, ¶ 25 (2005) (finding lack of formal notice was not
fundamental error because the defendant "had actual notice of the
aggravating circumstance before trial" and admitted "he suffered no
prejudice").

¶15 In short, Swift Hawk does not explain how she was "misled,
surprised or deceived" by the State's conduct. Bayliss, 146 Ariz. at 219. The
State provided actual notice of its intent to seek an enhanced sentence under
the repetitive offender statute. Accordingly, we find no prejudice. Williams,
144 Ariz. at 442.

II. Alleged Double-Jeopardy Violation.

¶16 Swift Hawk also argues that double jeopardy precluded the
court from enhancing her sentence because the State did not formally allege
the prior convictions before the jury was sworn. Because Swift Hawk did
not raise this issue to the superior court, we review for fundamental,
prejudicial error. Henderson, 210 Ariz. at 567, ¶¶ 19–20.

State references the Donald advisement to demonstrate that Swift Hawk was
properly informed of the consequences of conviction if she went to trial.
This is the exact purpose of a Donald advisement, and Rule 410 is not
implicated.

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¶17 Swift Hawk relies solely on this Court's decision in Parent v.
McClennen, 206 Ariz. 473 (App. 2003). In Parent, the defendant declined the
State's initial plea offer because he could not "avow . . . he had no prior
felony convictions." Id. at 474, ¶ 4. The State amended its plea offer to
include the prior convictions. Id. At a settlement conference, the defendant
rejected the new plea, but the settlement judge accepted the defendant's
guilty plea to the original offer without the prior convictions. Id. at ¶ 5. The
State moved to enhance the defendant's sentence with his prior convictions
or to set aside the guilty plea. Id. at 475, ¶ 6. The trial judge allowed the
defendant to choose between accepting an enhanced sentence or
withdrawing from the plea and going to trial with the alleged prior
convictions. Id. at ¶ 7. After accepting special action jurisdiction, this Court
held that double jeopardy barred the trial court from enhancing the
defendant's sentencing range after he accepted a guilty plea without any
allegation of his prior convictions. Id. at 476, ¶¶ 15–16.

¶18 Swift Hawk fails to provide any analysis about Parent's
applicability to the facts of this case. Ariz. R. Crim. P. 31.10(a)(7)(A)
(requiring that an appellant's arguments contain "contentions with
supporting reasons for each contention"). Nor does she explain how Parent
overcomes the State's argument that it provided Swift Hawk sufficient
notice of its intent to enhance her sentence under Section 703(N) before trial.

¶19 The Double Jeopardy Clauses in the United States and
Arizona Constitutions protect defendants from multiple punishments for
the same offense. U.S. Const. amend. V; Ariz. Const. art. 2, § 10. But
Arizona courts have held that double jeopardy is not implicated by using
prior convictions for sentence-enhancement purposes. State v. Torrez, 141
Ariz. 537, 539 (App. 1984) (finding the use of prior convictions does not
constitute double jeopardy because "[s]tatutes authorizing the infliction of
more serious penalties on one who is a persistent offender do not create a
new, separate, distinct, independent or substantive offense"); see State v.
Cooney, 233 Ariz. 335, 340, ¶ 15 (App. 2013) (concluding a statute designed
to "punish a defendant more severely for a recent crime based on h[er]
having committed previous crimes, [] is precisely what courts have long
held is constitutionally permissible"); State v. Keith, 211 Ariz. 436, 437–38,
¶ 7 (App. 2005) (holding the double jeopardy clause does not prohibit the
State from proving a defendant's prior convictions after the jury is
dismissed). The double jeopardy clause does not apply here. The State's
actual notice, as discussed supra ¶¶ 13–15, cured any procedural defect
caused by the State's failure to formally allege Swift Hawk's prior
convictions.

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CONCLUSION

¶20 Because Swift Hawk had notice of the State's intent to enhance
her sentence, she was not prejudiced by the State's failure to strictly comply
with Section 703(N). And the use of Swift Hawk's prior convictions does
not violate double jeopardy. We affirm Swift Hawk's sentence as a
category-three repetitive offender.

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

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