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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOHNNY LEE MENDIVIL, Appellant.
No. 1 CA-CR 21-0291
FILED 8-2-2022
Appeal from the Superior Court in Maricopa County
No. CR 2019-125606-001
The Honorable Howard D. Sukenic, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant
STATE v. MENDIVIL
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.
C A M P B E L L, Judge:
¶1 Johnny Mendivil appeals his sentences for two drug offenses,
arguing he was improperly sentenced as a Category 3 repetitive offender.
Because he did not raise this claim in the superior court, and the record
supports the superior court’s finding that he has at least two historical prior
felony convictions, we affirm.
BACKGROUND
¶2 The State charged Mendivil with one count of possession or
use of dangerous drugs and one count of possession of drug paraphernalia
(the present offenses). The State also alleged aggravating circumstances and
that Mendivil had historical prior felony convictions and committed the
present offenses while on release from confinement.
¶3 A jury convicted Mendivil as charged. After the jury rendered
its verdict, the parties stipulated that Mendivil was on parole at the time of
the present offenses and had “at least three prior felony convictions . . .
plac[ing] [him] in Category 3.” Specifically, the prosecutor referenced the
following prior convictions: (1) Cause No. CR 2016-115393-002, possession
of a dangerous drug, a class 4 felony, committed on April 2, 2016
(conviction on April 18, 2017); (2) Cause No. CR 2013-455711-001,
possession of drug paraphernalia, a class 6 felony, committed on November
20, 2013 (conviction on May 5, 2014); and (3) Cause No. CR 2013-461684-
001, possession of drug paraphernalia, a class 6 felony, committed on
December 26, 2013 (conviction on May 5, 2014).
¶4 Before accepting the parties’ stipulation, the superior court
asked defense counsel whether he agreed with its terms, as presented by
the prosecutor, and defense counsel expressly stated that both he and his
client “agree[d].” The court then addressed Mendivil directly, asking
whether he admitted both his parole status and his three prior felony
convictions. After Mendivil agreed to the stipulation, the superior court
questioned him to ensure that he knowingly, voluntarily, and intelligently
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STATE v. MENDIVIL
Decision of the Court
made the admissions. See Ariz. R. Crim. P. 17.1(b) (“A court may accept a
plea of guilty or no contest only if the defendant enters the plea voluntarily
and intelligently.”); see also Ariz. R. Crim. P. 17.6 (requiring a court to ensure
that a defendant’s stipulated admission to an allegation of a prior
conviction is voluntarily and intelligently made). Upon completing the
colloquy, the superior court accepted the parties’ stipulation, dispensed
with the aggravation phase of the trial, and discharged the jury.
¶5 At sentencing, the superior court reviewed the parties’
stipulation with the prosecutor, who confirmed that Mendivil had
“admitted to three priors, and that he was on parole.” The court, without
objection, then deemed Mendivil a Category 3 repetitive offender and
imposed the corresponding mandatory minimum terms of imprisonment,
totaling ten years. See A.R.S. §§ 13-703(C), (J); –708(A). In pronouncing the
sentences, the court remarked that it found them “excessive” and expressly
authorized Mendivil to petition the Board of Clemency for commutation of
his sentences.
DISCUSSION
¶6 On appeal, Mendivil argues for the first time that two prior
felony convictions used by the superior court to enhance his sentences did
not qualify as “historical prior felony convictions.” While he does not
contest the classification of his 2017 conviction for possession of a
dangerous drug, committed on April 2, 2016, as a “historical prior felony
conviction,” he contends his 2014 convictions for possession of drug
paraphernalia, committed on November 20 and December 26, 2013, do not
qualify because he committed those offenses more than five years before he
committed the present offenses on June 2, 2019. According to Mendivil,
neither the parties’ stipulation nor any evidence “supports a finding that
[he] had more than one allegeable historical felony conviction,” and
therefore the superior court erred by sentencing him as a Category 3
repetitive offender.
¶7 Because Mendivil did not argue in the superior court that his
2013 drug offenses were too remote in time to qualify as historical prior
felony convictions, we review this issue only for fundamental error. State v.
Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). To prevail under fundamental
error review, Mendivil must establish both that fundamental error exists
and that the error caused him prejudice. Id. at ¶ 20. Fundamental error goes
to the foundation of the case, deprives the defendant of a right essential to
his defense, or is of such magnitude that the defendant could not possibly
have received a fair trial. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).
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STATE v. MENDIVIL
Decision of the Court
“The improper use of a conviction as a historical prior felony conviction for
enhancement purposes constitutes fundamental error.” State v. Avila, 217
Ariz. 97, 99, ¶ 8 (App. 2007).
¶8 Under A.R.S. § 13-703(C), “a person shall be sentenced as a
category three repetitive offender if the person . . . stands convicted of a
felony and has two or more historical prior felony convictions.” As defined
by A.R.S. § 13-105(22)(c), any class 6 felony “that was committed within the
five years immediately preceding the date of the present offense” qualifies
as a “[h]istorical prior felony conviction.” To calculate whether a felony was
committed within the preceding five years for purposes of the statute, any
time the defendant spent incarcerated “is excluded.” Id.
¶9 Before enhancing a defendant’s sentence with a prior
conviction, a court must find that a historical prior felony conviction exists.
State v. Morales, 215 Ariz. 59, 61, ¶ 6 (2007). Most commonly, the State
establishes the existence of a historical prior felony conviction by presenting
a certified copy of the conviction at an evidentiary hearing, but no hearing
is required if the defendant admits to the prior conviction. See id. at ¶¶ 6-7.
A defendant’s admission or stipulation “eliminate[s] the need for formal
proof of the prior conviction by the [S]tate, waive[s] the defendant’s
constitutional rights, and result[s] in an enhanced sentence.” Id. at ¶ 9.
¶10 As stated, Mendivil committed the present offenses on June 2,
2019 and the underlying offenses for the challenged 2014 convictions on
November 20 and December 26, 2013, a difference of 5 years and 194 days
and 5 years and 158 days, respectively. On appeal, Mendivil asserts that the
State failed to prove that he was incarcerated for sufficient time to bring the
2014 convictions within the statutory five-year requirement. See Avila, 217
Ariz. at 99, ¶ 10.
¶11 If we adopt Mendivil’s proposed “formulation of the issue as
the proper inquiry on appeal of a claim forfeited at trial, our review would
be no different than had [he] contested the sufficiency of the evidence at the
sentencing hearing.” Id. Such an approach is inconsistent with well-
established caselaw governing fundamental error review. As made clear by
our supreme court, “the burden of persuasion borne by a defendant in
fundamental error review does not permit him to remain silent at trial and
reserve the ‘hole card’ of a later appeal on a matter that was curable at trial.”
Id. at 100, ¶ 12 (citing Henderson, 210 Ariz. at 567, ¶ 19). Accordingly, on
fundamental error review, a defendant challenging the classification of a
conviction as a historical prior felony conviction “needs to demonstrate
that, excluding the amount of time for which he was incarcerated between
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STATE v. MENDIVIL
Decision of the Court
the commission of [the underlying offenses for the challenged convictions]
and the commission of the current offenses, [the underlying offenses were]
not committed within the five years preceding the current offenses.” Id. at
99, ¶ 10.
¶12 Applying the five-year requirement of A.R.S. § 13-105(22)(c)
to this case, the 2014 drug paraphernalia convictions do not qualify as
historical prior felony convictions unless Mendivil was incarcerated for at
least 194 and 158 days, respectively, during the intervening period. We take
judicial notice that Mendivil was sentenced to one-year terms of
imprisonment for each 2014 conviction and incarcerated from December 26,
2013 to August 19, 2014, a total period of 236 days, exceeding the 194 and
158 days necessary to bring the 2013 possession of drug paraphernalia
offenses within the five years preceding the present June 2019 offenses for
purposes of the statute. Arizona Department of Corrections Rehabilitation
& Reentry, https://corrections.az.gov/public-resources/inmate-
datasearch (last visited July 19, 2022). See In re Sabino R., 198 Ariz. 424, 425,
¶ 4 (App. 2000) (noting appellate court may “take judicial notice of anything
of which the [superior] court could take notice”).
¶13 Although Mendivil objects to this court taking judicial notice
of the Arizona Department of Corrections’ records, asserting generally that
the Department’s “records are often wrong,” he raises no specific challenge
to the information at issue here. Given Mendivil’s forfeiture of any
challenge in the superior court, “the State is not required to disprove on
appeal the possibility that [Mendivil] was incarcerated for less than the
requisite amount of time.” Avila, 217 Ariz. at 100, ¶ 12.
¶14 Finally, as noted by the State, “[t]wo of Mendivil’s felonies are
‘forever’ historical priors,” so he qualifies as “a category three offender even
without accounting for the tolling [of time] from his incarceration.” Under
A.R.S. § 13-105(22)(d), “[a]ny felony conviction that is a third or more prior
felony conviction” qualifies as a “[h]istorical prior felony conviction.” Such
a conviction “can be used to enhance a later sentence, regardless of passage
of time,” State v. Johnson, 240 Ariz. 402, 404, ¶ 9 (App. 2016) (quotation and
citation omitted), except that “[c]onvictions for two or more offenses
committed on the same occasion shall be counted as only one conviction.”
A.R.S. § 13-703(L).
¶15 In this case, the State alleged that Mendivil committed eight
felonies on four dates. Taking the convictions chronologically, Mendivil’s
third and fourth felony prior convictions are CR 2013-461684-001,
committed on December 26, 2013, and CR 2016-115393-002, committed on
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STATE v. MENDIVIL
Decision of the Court
April 2, 2016. See State v. Christian, 205 Ariz. 64, 67, ¶ 8 n.8 (2003) (“For an
offense to qualify as a ‘third or more prior felony conviction’ it must be the
third conviction chronologically.”) (citation omitted).
¶16 To support its allegations, the State submitted a presentence
report containing a detailed criminal history, including the dates of the
prior felony convictions and the corresponding dates of commission, but
Mendivil did not object to the superior court’s consideration of the
presentence report or its contents. See Ariz. R. Crim. P. 26.8(b) (permitting
a party to object to the contents of a presentence report). Likewise, on
appeal, Mendivil does not suggest that the presentence report is inaccurate,
deny that he was convicted of the felonies at issue, or assert that the State
would have been unable to prove those convictions had the trial proceeded
to the aggravation phase. See State v. Gonzales, 233 Ariz. 455, 458, ¶ 11 (App.
2013) (“A defendant who fails to object to the contents of a presentence
report has waived objections as to the accuracy and completeness of the
report.”); see also State v. Miller, 215 Ariz. 40, 44, ¶ 13 (App. 2007).
Accordingly, Mendivil has not shown that the superior court committed
fundamental, prejudicial error by sentencing him as a Category 3 offender.
CONCLUSION
¶17 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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