State of Arizona v. Mark Anthony Cons

IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO

THE STATE OF ARIZONA, )
) 2 CA-CR 2002-0333
Appellee, ) DEPARTMENT B
)
v. ) O P I N IO N
)
MARK ANTH ONY CONS, )
)
Appellan t. )
)

APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

Cause No. CR-200200170

Honorable Kelly Marie Robertson, Judge

AFFIRMED

Terry Goddard, Arizona Attorney General
By Randall M. Howe and Jase Steinberg,
a student certified pursuant to Rule 38,
Ariz. R. Sup. Ct., 17A A.R.S. Phoenix
Attorneys for Appellee

Harriette P. Levitt Tucson
Attorney for Appellant

E S P I N O S A, Acting Presiding Judge.

¶1 Appellant Mark Anth ony Cons wa s charged with forge ry, a class fou r 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 co ntends 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 evide nce 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 C ounty, 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 P inal County, Arizona, in Cause Number
99025078.

After the jury found C ons gu ilty 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 e ntry reflects that the court

2
continued the prior convictions trial after defense counsel advised the court that C ons would

not be admitting the allegations. A t that time, the state obtained Cons’s fingerprints, marked

for identification purposes exhibits related to the prior convictions, and then moved to amend

the indictmen t 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 M aricopa C ounty 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 M arch 15 , 1999. The a llegation was am ended accord ingly.

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 wa s “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

1
Although we do not have the transcript from the August 12, 2002, he aring, the m inute
entry from that hearing does not state that Cons objected and there is no written o bjection in
the record. Cons intimates in his reply brief that his objection to the exhibits supporting the
prior conviction s was also an objection to the am endment. He claims that “it is clear from

3
amended for fundamental error. See gene rally State v. Gendron, 168 Ariz. 153, 812 P.2d

626 (1991) (failu re to raise obj ection in trial co urt 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). B ut even if w e were to c onstrue 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. McDouga ll v. Crawford, 159 Ariz.

339, 767 P.2d 226 (App. 1989). A s Division O ne of this court pointed o ut in McDo ugall,

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 Ru les of Criminal Procedure .

Id. at 342, 767 P.2d at 229. The cou rt 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 discre tion to add a llegations of p rior convictio ns within th e time limits

[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 raise s on appe al.

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prescribed by Rule 16.1(b), [A riz. R. Crim. P., 16A A.R.S.,] but p recludes the adding of

substantive charges in the counts set forth in a complaint or information.” McDo ugall, 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 amend ed “only to c orrect mistake s of fact or rem edy formal or te chnical def ects”;

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, w hich provides mand atory 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 subsectio ns of § 13-604, but it d id not specific ally

5
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 convictio n and spe cify the class of fe lony, the cou rt did not so alter the nature of the

allegation that Cons was dep rived of the n otice to wh ich he wa s 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 13 1, 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, 6 55 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

6
deprived of his due process righ ts, and the trial c ourt 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 reasonab le doubt and that the evid ence presented did n ot satisfy

that standard. Cons intimates the eviden ce was insufficient becau se (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 ha d been w illing to adm it to the prior conviction at one p oint; 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 pard oned, rath er than impo sing on the state

the burden of showing the cases had not been successfully challenged.

¶8 The trial court did not articu late what sta ndard of p roof it had ap plied in finding

the state had proven the p rior convictions. But, we disagree with Cons that the court was

required to find beyond a reasona ble doubt that he had b een convicted of the tw o felonies

alleged before the c ourt could enhance his sentences.2 Our conclusion is based on the history

of § 13-604(P ), as well as the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S.

466, 120 S. C t. 2348 , 147 L . Ed. 2d 435 (2000), and its p rogeny.

2
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 (Ap p. 2003).

7
¶9 Before the legislature amended § 13-604 in 1996, subsection (P) had provided

that, unless admitted by the defendant, the “trier of fact” was required to decide the issue of

prior convictions for sentence e nhancement pu rposes. See 1996 Ariz. Sess. Laws, ch. 34, § 1.

The statute now states that the enhancement provision applies if “the previous conviction . . .

is . . . admitted or found by the court.” The case law that developed before the statute was

amended automatically ascribed to the state the b urden of p roving beyond a reaso nable doubt

that the defendant had p rior felony convictions as alleged. See, e.g., State v. Pennye, 102 Ariz.

207, 427 P.2d 525 (1967); State v. Wilson, 179 Ariz. 17, 875 P.2d 1322 (App . 1993); State

v. Terrell, 156 Ariz. 499, 753 P.2d 189 (Ap p. 1988); State v. Grijalva, 137 Ariz. 10, 667 P.2d

1336 (App. 1983 ). Howeve r, as our supreme court stated in State v. Hurley, 154 Ariz. 124,

132, 741 P.2d 25 7, 265 (1987), it “[a]pparently” had never analyzed the question of the burden

of proof on such an allegation, “evidently assuming that because the issue of prior convictions

was tried to a jury, proof beyond a reasonable doubt was required.” Even assuming the

heightened standard h ad been c orrect in the first place, the question remains whether that is the

state’s burden still, in light of the statutory amendment requiring the court to decide the issue,

unless admitted, and given the Supreme Court’s decision in Apprendi. We think not.

¶10 In Apprendi, the Supreme C ourt held that “[o]ther 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 re asonable doubt.” 530 U.S. at

8
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 part 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), an d its conclusion in that case that “recidivism ‘does not relate to the

commission of the offen se, but goes to the punishment only,’” quoting Graham v. West

Virginia, 224 U.S. 61 6, 629, 32 S. Ct. 583, 588, 56 L. Ed. 917, 923 (1912). Section

13-604(P) is constitutional and is consistent with Apprendi insofar as it allows the co urt,

rather than a jury, to decide the allegation of prior convictions. See State v. Canez, 202 Ariz.

133, ¶ 80, 42 P.3d 5 64, 588 (2002) (“[W]hatever the impact of Apprendi on Walton [v.

Arizona, 497 U.S. 63 9, 110 S. Ct. 30 47, 111 L. E d. 2d 511 (199 0)], it is clear that prior

convictions may be found by the court.”). But that does not answer the question of what

standard of proof applies to an allegation of prior convictions.

¶11 In excepting prior conv ictions from its holding, the Apprendi Court, discussing

Almendarez-Torres, noted that because the defendant’s guilt necessa rily had been proven to

a jury beyond a reasonable doubt during the trial on that offense, the required procedural

safeguards have bee n met and th e Sixth Amendment concerns have been mitigated. The Cou rt

reasoned in Apprendi that “there is a vast difference between accepting the validity of a prior

judgment of convictio n entered in a proceed ing in which the defendan t had the righ t to a jury

3
In Blakely v. Washington, No. 02-1632, 2004 WL 1402697 (U.S. June 24, 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.

9
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 standard of proof.” 530 U.S. at 496,

120 S. Ct. at 2366, 147 L. Ed. 2d at 458-59. Implicit in the Court’s exception of prior

convictions from the requirement that a jury determine beyond a reasonable doubt any fact that

increases the penalty for a crime beyond the statutory maximum is that something other than

that heightened standard can apply.

¶12 In Harris v. United States, 536 U.S. 54 5, 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 m ake a factual finding ba sed on a p reponderance 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 se ven years. The Cou rt conclude d that its

previous decision in McMillan v. Penns ylvania, 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 de fendant had posse ssed a firearm.”

Harris, 536 U.S. at 550, 122 S. Ct. at 2410, 153 L. Ed. 2d at 533 . The Co urt reasone d in

Harris that

4
The Court in Blakely distinguished McMillan and Harris but did not invalidate those
cases.

10
 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 man datory 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. Th e Supreme Court has yet to address

directly whether 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 case 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 appropriate standard o f proof for court-determined re lease 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, ha d resulted in an automatic application of the h eightened standard

11
of proof. But, the court reasoned, because § 13-604.02 permitted the court 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 conviction s and releas e status essen tially have switched place s in this

regard since our supreme court decided Hurley. As Division O ne of this court noted in State

v. Gross, 201 Ariz. 41, 31 P.3d 815 (A pp. 2001), Apprendi effectively overruled Hurley,

requiring that release status be determined by a jury beyon d a reasonable dou bt. See also State

v. Benena ti, 203 Ariz. 235, 52 P.3d 804 (App. 2002) (agreeing with Gross and holding that

release status adding two years to sentence as enhancement under § 13-604(R) must be

determined by jury in light of Apprendi). Of course, in Apprendi, the Supreme Court did not

prescribe the burden of proof for determining the existence of prior convictions for sentence

enhancement purposes. And in Almendarez-Torres, decided before Apprendi, the defendant

had admitted he was a recidivist; therefore, the Court declined to decide the question,

commenting, “we ex press no view on w hether som e heighten ed standard of proof mig ht apply

to sentencing determinatio ns that bear s ignificantly on the severity of sentence.” 523 U.S. at

248, 118 S. Ct. at 1233, 140 L. Ed. 2d at 371; see also United States v. Watts, 519 U.S. 148,

156 n.2, 117 S. Ct. 633, 637-38 n.2, 136 L. Ed. 2 d 554, 56 4-65 n.2 (1997) (no ting, without

resolving, “divergence of o pinion among the C ircuits” regarding whether “clear and

convincing” should be standard for determining “relevant conduct” that could affect sentence);

United States v. Restrepo, 946 F.2 d 654 (9th Cir. 1991 ) (suggesting clear and convincing

evidence might be required to prove sentencing factors that result in extrao rdinary adju stments

12
to sentence); cf. In re B.S., 205 Ariz. 611, ¶ 12, 74 P.3d 285, 289 (App. 2003), quoting

Rasmussen v. Fleming, 154 Ariz. 207, 2 23, 741 P.2d 674, 691 (198 7) (higher evidentiary

standard of clear and convincing evidence applies to “exceptional civil matters” involving

“‘personal interests more important than those found in the typical civil dispute’”). But see

State v. Hurbenca, 669 N.W. 2d 668 (Neb. 2003) (in light of Apprendi, fact of prior

conviction need only be found by trial court based on prepon derance of the eviden ce); State

v. Holgren, 23 P.3d 1132 (Wash. Ct. App. 2001) (prior convictions need only be established

by preponderance of the evidence); cf. Joyner v . State, 158 P.3d 331 (Wyo. 2002) (finding

protection order is not a prior conviction and must be established beyond a reasonable doubt

to enhance sentence). Applying the court’s reasoning in Hurley here and recognizing the

significant impact prior convictions can have on the length of a sentence, we hold that because

neither the statute nor Apprendi requires a jury trial on the allegation of prior convictions, the

heightened burden o f proof doe s not apply bu t rather prior co nvictions for sentence

enhancement purposes must be established by clear and convincing evidence.

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 con victions as alle ged by the sta te and subsequently

amended. In order to p rove a prior conviction , the state mus t submit positive identification

establishing that the accused is the same person who previously was convicted, as well as

evidence of the 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

13
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 Cou nty matter contained Cons’s name,

date of birth, and a fingerprint th at the state’s ex pert identified a s 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 th e Pinal County case. B ased on the record b efore 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 doub t. The record belies Cons’s contention that the

court found the felony conv ictions were established based on the fact that initially he had been

willing to admit them. Instead, there was ov erwhelming evide nce to support the cou rt’s

findings and its enhancement of the sentence.

¶18 Cons objected to the admissio n 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 this objection and

Cons’s additional objections, one of which was that insufficient foundation had been

established for the admission of the documents. Cons reiterates both objections on appeal but

14
does not provide sufficient argument for us to address the claim that there was a lack of

foundation for the record s. See Ariz. R. Crim. P. 31.13(c), 17 A.R.S. (setting forth conten ts

appellate briefs must ha ve, includin g argume nt and citation to authorities); State v. Sanchez,

200 Ariz. 163, 24 P.3d 610 (App. 2001) (claim waived because defendant failed to develop

argument in brief). We reject it summarily as waived and, in any event, meritless; certified

copies of the court records are prop er, self-authentic ated docu ments that are properly offered

in support of an allegation of p rior convictions. See Hauss; State v. Lee, 114 Ariz. 101, 559

P.2d 657 (197 6) (proper p rocedure for proving prior conv ictions is to offer certified copy of

conviction); see also Ariz. R. Evid. 902(4), 17A A.R.S. (certified copies of public records are

self-authenticating).

¶19 We also reject Cons’s claim that, by admitting the documents over his objection

that the state had failed to establish the conv iction had n ot been va cated on a ppeal or in a post-

conviction proceeding, the trial court impermissibly shifted the burden of proving the prior

convictions to him. There is a presu mption 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 ha d been reversed o r that he had been pa rdoned. Cons did

not satisfy that burden, and it was not for the state to establish the nega tive, that is, that no

appeal, post-conviction proceeding, or pardon had eliminated the prior convictions.

15
 Disposition

¶20 The conviction and sentence are affirmed.

PHILIP G. ESPINOSA, Acting Presiding Judge

CONCURRING:

JOHN PELANDER, Chief Judge

PETER J. ECKERSTROM, Judge

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