State v. Meza

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOE MEZA, Appellant.

No. 1 CA-CR 20-0287
FILED 4-22-2021

Appeal from the Superior Court in Maricopa County
No. CR 2017-002591-001
The Honorable Roy C. Whitehead, Judge

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Thomas K. Baird
Counsel for Appellant
 STATE v. MEZA
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

¶1 Joe Meza appeals his sentence as a category-three repetitive
offender, arguing that (1) the State did not provide adequate notice of the
historical prior felony convictions (“historical priors”) it intended to use for
sentence enhancement as required by A.R.S. § 13-703(N), and (2) his prior
convictions do not qualify as historical priors under A.R.S. § 13-105(22).
Because Meza does not demonstrate reversible error under either theory,
we affirm Meza’s conviction and sentence as modified.

BACKGROUND

¶2 The State indicted Meza on four felony counts: armed
robbery, a class 2 dangerous felony (Count 1); aggravated assault, a class 3
dangerous felony (Count 2); and two counts of misconduct involving
weapons, both class 4 felonies (Counts 3 and 4). In its Notice of Disclosure,
the State alerted the defendant of its intention to use his prior felony
convictions for sentence enhancement purposes under § 13-703. The State
also filed two pre-trial amendments to the indictment. The first pre-trial
amendment alleged a single historical prior, taking the identity of another,
a class 4 felony. In the second pre-trial amendment, captioned “State’s
Allegation of Prior Felony Conviction Pursuant to A.R.S. § 13-703 or A.R.S.
§ 13-704,” the State alleged two additional prior felony convictions,
unlawful imprisonment, and aggravated assault, both class 6 felonies, and
the dates of offense for those convictions. In the text of the second
amendment, the priors were referenced as “not historical prior felony
convictions.” However, both amendments indicated that the prior
convictions were alleged for the purpose of sentence enhancement,
pursuant § 13-703.

¶3 The jury convicted Meza on Count 4, but could not reach a
unanimous decision on Counts 1-3. To avoid a second trial, Meza plead
guilty to Count 1, and in return Counts 2 and 3 were dismissed.

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¶4 After the verdict, but prior to sentencing, the State filed a third
amendment alleging Meza’s prior convictions for unlawful imprisonment
and aggravated assault were actually historical prior convictions. A.R.S.
§ 13-105(22), -703. Meza objected, arguing that the court should only
consider one historical prior, the felony set out in the first pre-trial
amendment. Meza asserted that he relied on the State’s initial
representation, that he had only one historical prior felony conviction,
when deciding whether or not to go to trial. He argued that he would suffer
prejudice if the State could allege additional historical priors during trial.
The superior court was not convinced, finding that:

[T]he State timely disclosed defendant’s convictions for
Taking the Identity of Another (CR2010-148613-001),
Unlawful Imprisonment (CR2009-132058-001), and
Aggravated Assault (CR2009-006840-001). These convictions
were set forth in the State’s Allegation of Prior Felony
Convictions, Allegation of Historical Priors, and Request for
Rule 609 Hearing (which were filed within seconds of each
other on September 25, 2017). The fact that the State may have
misunderstood (and thus misstated) the legal significance of
two of the convictions does not change this analysis . . . .

¶5 At sentencing on Count 1, pursuant to a plea agreement, the
superior court sentenced Meza to ten and a half years in prison. On Count
4, the court found that Meza had three historical priors and sentenced him
to the presumptive term of ten years as a category-three repetitive offender.
With the superior court’s permission, Meza filed a delayed notice of appeal.

DISCUSSION

I. Proper Notice Under A.R.S. § 13-703(N)

¶6 Meza argues that by sentencing him as a category-three
repetitive offender, the court imposed an illegal sentence. Since Meza raised
the issue at trial, we review for harmless error, and the State bears the
burden of proving “beyond a reasonable doubt that the error did not
contribute to or affect the verdict or sentence.” State v. Henderson, 210 Ariz.
561, 567, ¶ 18 (2005). The legality of a sentence, including “[w]hether the
trial court applied the correct sentencing statute,” State v. Hollenback, 212
Ariz. 12, 16, ¶ 12 (App. 2005), is a question of law, which we review de novo,
State v. Johnson, 210 Ariz. 438, 440, ¶ 8 (App. 2005).

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¶7 In Arizona, a defendant may be sentenced as a repetitive
offender pursuant to § 13-703(C) only if “an allegation of prior conviction
is charged in the indictment or information.” A.R.S. § 13-703(N). The
allegation must be filed no later than 20 days before trial, Ariz. R. Crim. P.
13.5(a) and 16.1(b), and “may not be alleged after the verdict is returned.”
State v. Williams, 144 Ariz. 433, 442 (1985); see also State v. Benak, 199 Ariz.
333, 337, ¶ 14 (App. 2001) (“[F]undamental fairness and due process require
that allegations that would enhance a sentence be made before trial so that
the defendant can evaluate his options.”).

¶8 Under Williams, however, strict compliance with § 13-703(N)
is not required if the defendant has adequate notice before trial that the
State will ask the court to impose an enhanced sentence based on prior
felony convictions. 144 Ariz. at 442. This is because “a defendant is not
prejudiced by noncompliance with A.R.S. § 13-604(K) [now § 13-703(N)]
provided he is on notice before trial that the prosecution intends to seek the
enhanced punishment provisions of the statute.” Id. The pretrial notice to
the defendant, however, must be adequate to inform him “of the charge of
an allegation of prior convictions, so as not to be misled, surprised or
deceived in any way by the allegations.” State v. Bayliss, 146 Ariz. 218, 219
(App. 1985).

¶9 Here, the State properly alleged one of Meza’s prior
convictions as a historical prior before trial. The State also alleged two other
prior convictions for purposes of sentencing enhancement under A.R.S.
§ 13-703, but incorrectly described them as “not” historical prior felony
convictions. The State, however, identified all three prior felony convictions
and its intention to use each felony to enhance his sentence should he be
convicted. Meza equates this mischaracterization as a due-process
violation. He argues that he did not receive adequate notice of the potential
sentence range because the State only identified one of his prior felony
convictions as historical for the purposes of the repetitive offender statutory
enhancement scheme. See A.R.S. § 13-703(N). Meza asserts that he was
unable to appreciate “the full range of risk of going to trial.” He contends
that he was only on notice of potential sentencing as a category-two
offender. See A.R.S. § 13-703(B) (“[A] person shall be sentenced as a category
two repetitive offender if the person . . . has one historical prior felony
conviction.”). Because the post-verdict amendment recharacterized two of
his priors as additional historical priors, Meza contends the amendment
unexpectedly changed the amount of time he could be incarcerated
dramatically. See A.R.S. § 13-703(C) (“[A] person shall be sentenced as a
category three repetitive offender if the person . . . has two or more
historical prior felony convictions.”).

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¶10 There is no dispute that the State’s second allegation
contained an error and failed to strictly comply with § 13-703(N). The
question then becomes―did the State provide Meza adequate notice that it
intended to ask the court to impose enhanced sentences. See Williams, 144
Ariz. at 442. To make this determination we must review the notice
provided by the State.

¶11 First, we note that the State and Meza filed a “Joint Pretrial
Statement” in which both parties acknowledged that Meza had three prior
felony convictions, all of which were allegeable as historical priors. The
joint statement confirms that Meza knew he would face sentencing as a
category-three repetitive offender, at least as to Counts 3 and 4, before trial.
See A.R.S. § 13-703(C).

¶12 Second, the State provided notice in its initial disclosure of its
intention to use multiple prior convictions for the purpose of sentence
enhancement under A.R.S. § 13-703. Additionally, although the second pre-
trial amendment erroneously described the unlawful imprisonment and
aggravated assault charges as “not” historical priors, it also stated that these
prior convictions were being alleged pursuant § 13-703. Given this citation,
Meza was on notice that his prior felony convictions would be used as
enhancement at sentencing.

¶13 Third, prior to trial, the superior court informed Meza of the
presumptive terms of “15.75, 11.25, 10 and 10” if convicted. Although the
superior court did not specifically use the term “category-three repetitive
offender,” the presumptive sentences provided conform to the sentencing
ranges for category-three offenders. See A.R.S. § 13-703(J).

¶14 Taken together, these communications indicate Meza had
adequate notice of the specific grounds on which the State would ask the
court to impose an enhanced sentence under § 13-703(C). “The salient
purpose for requiring notice of the [S]tate’s intent to seek enhanced
punishment prior to trial is to ensure a defendant will not be misled,
deceived or surprised.” State v. Jobe, 157 Ariz. 328, 330 (App. 1988). When
the State’s communications and filings are sufficient to provide the
defendant with actual notice despite such procedural defects, due process
is satisfied, and such error is harmless. See id. (holding state’s failure to
formally file all operative pleadings was harmless error because defendant
had actual, constitutionally adequate notice prior to trial).

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¶15 Although the State did not strictly comply with the
procedural requirements of § 13-703(N), we hold that such an error was
harmless, and did not violate Meza’s due process rights.

II. Historical Priors Under A.R.S. § 13-105(22)

¶16 Meza also argues, for the first time on appeal, that his prior
felony convictions do not qualify as historical priors. In the absence of a trial
objection, the superior court’s designation of a conviction as a historical
prior is reviewed for fundamental error. State v. Escalante, 245 Ariz. 135, 140,
¶ 12 (2018); State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). To prevail
under fundamental error review, the defendant must show both error and
prejudice. Escalante, 245 Ariz. at 140, ¶ 12. “The imposition of an illegal
sentence constitutes fundamental, prejudicial error.” State v. Florez, 241
Ariz. 121, 127, ¶ 21 (App. 2016).

¶17 The legislature has defined “historical prior felony
conviction” to include “[a]ny class 4, 5 or 6 felony . . . that was committed
within the five years immediately preceding the date of the present
offense.” A.R.S. § 13-105(22)(c). Here, the court relied on two class 6 felonies
committed in 2009 and one class 4 felony committed in 2010. Meza urges us
to conclude that his prior convictions were too old to qualify as historical
priors.

¶18 However, “[a]ny time spent on absconder status while on
probation, on escape status or incarcerated is excluded in calculating if the
offense was committed within the preceding five years.” Id. Moreover, time
incarcerated or on absconder is excluded from the calculation “regardless
of whether that incarceration was for the particular prior conviction at issue
or for some other crime.” State v. Derello, 199 Ariz. 435, 439, ¶ 22 (App. 2001).

¶19 In total, at least four and a half years must be excluded from
the time calculation for each of the prior convictions because he was
incarcerated or because he had absconded from a judicial proceeding.1 For

1 Meza committed Count 4 of the indictment in April 2017. He
committed taking the identity of another in September 2010 (about six years
and seven months before Count 4), unlawful imprisonment in May 2009
(almost eight years prior), and aggravated assault in April 2009 (about eight
years prior). However, Meza was incarcerated for the 2010 felony from
March 2011 until February 2015, absconded from community release from
February 2015 until March 2015, and then remained incarcerated until
October 2015.

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the purpose of determining if the prior convictions were historical prior
convictions, this time must be subtracted from the date range. Accordingly,
all three of Meza’s prior convictions occurred within the past 5 years. A.R.S.
§ 13-105(22).

¶20 Meza does not deny he spent a considerable amount of time
incarcerated. Instead, he asserts that the court was required to find, on the
record, that such time incarcerated or on absconder status was applicable
to the determination of his historical prior felony convictions.

¶21 Certainly, it would have been better practice for the superior
court to have made such a finding on the record. See Ariz. R. Crim. P.
26.10(a), (b) (in pronouncing the judgment, the superior court must indicate
whether the offense falls within a sentence enhancing category, and “state
that it has considered the time the defendant has spent in custody on the
present charge”). However, the exclusion of his time incarcerated or on
absconder status was discussed at the final trial management conference.
Moreover, assuming without deciding that this was error, Meza has not
shown how he was prejudiced. Based upon his criminal history, Meza has
failed to show prejudicial error.

III. Error in Sentencing Order

¶22 The written sentencing order, dated October 2, 2019,
erroneously states that Meza was sentenced pursuant to A.R.S. § 13-704(B),
which provides the sentencing ranges for a category-two dangerous
offender. As discussed above, Meza was sentenced as a category-three
repetitive offender under A.R.S. § 13-703(C), (J). “When a discrepancy
between the trial court’s oral pronouncement of a sentence and the written
minute entry can be clearly resolved by looking at the record, the
‘[o]ral pronouncement in open court controls over the minute entry.’” State
v. Ovante, 231 Ariz. 180, 188, ¶ 38 (2013) (alteration in original) (citation
omitted). Moreover, an appellate court may correct such an error when “the
record clearly identifies the intended sentence.” Id. Accordingly, we correct
the October 2, 2019 minute entry, to delete reference to § 13-704(B), and
substitute the correct statute, § 13-703(C), (J).

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CONCLUSION

¶23 For the above reasons, we affirm Meza’s conviction and
sentence as modified.

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

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