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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                GREGORY MICHAEL HARDIN, Appellant.

                             No. 1 CA-CR 19-0125
                               FILED 2-11-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR2018-107659-001
                  The Honorable Gregory Como, 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 Baird
Counsel for Appellant
                           STATE v. HARDIN
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Diane M. Johnsen joined.


T H U M M A, Judge:

¶1            Gregory Hardin challenges his prison sentence as a Category
2 repetitive offender, claiming it was based on convictions that did not
qualify as historical prior felony convictions. Because Hardin failed to
timely object, this court reviews for fundamental error resulting in
prejudice. Because Hardin has shown no such error, his sentence is affirmed
as modified.

                FACTS1 AND PROCEDURAL HISTORY

¶2             In February 2018, coffee shop surveillance cameras captured
Hardin rummaging through a cash register. The State charged Hardin with
burglary in the third degree, a Class 4 felony, later adding a Class 1
misdemeanor charge of interfering with judicial proceedings when he
refused to comply with a court order to provide a buccal swab. The State
timely alleged Hardin had several historical prior felony convictions and
two more non-historical prior felony convictions. See Ariz. Rev. Stat.
(A.R.S.) § 13-703 (2020).2 Following a three-day trial, the jury found Hardin
guilty as charged.

¶3            At sentencing, the court first held an evidentiary hearing on
the prior felony convictions alleged by the State. The court received
testimony and various documents, including an Arizona Department of
Corrections Automated Summary Report (called a “Pen-pack,” short for
“penitentiary package”), later noting it had reviewed the presentence
report. The court found that the prior felony “convictions referenced in the
Pen-pack, which is marked as Exhibit 1, [for which] the State has met its


1On appeal, this court views the evidence in the light most favorable to
sustaining the convictions and resolves all reasonable inferences against the
defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008).

2 Absent material revisions after the relevant dates, statutes cited refer to
the current version unless otherwise indicated.


                                     2
                            STATE v. HARDIN
                            Decision of the Court

burden of proving by clear and convincing evidence[,] that these
convictions do pertain to the same Gregory Hardin[, who] is the defendant
in this case.” The Pen-pack contained summaries of the convictions,
including a two- or three-word description, dates and length of sentences
imposed, but did not state the classification of the offenses. The presentence
report, however, provided more detail, including that the convictions were
for felony offenses. One of the prior felony convictions was for aggravated
driving under the influence (DUI) committed in 2004.

¶4            The State noted that, although the Pen-pack listed six felony
convictions, “three of them are all on the same date of offense. So [there are]
two non-historical priors, [which] would put him in Category 2 then, not
Category 3.” Hardin repeated his objection that “the State hadn’t met its
burden with regards to the Pen-pack,” but agreed that “[f]or what the Court
has articulated, yes, Your Honor, we agree that it [the Pen-pack] places him
in [Category] 2.” The court then found that Hardin “should be sentenced
under Category 2 as a repetitive offender, based on the felony convictions
proven by the State as referenced . . . in the Pen-pack.” After hearing
argument, the court sentenced Hardin to a less-than-presumptive three-
and-a-half-year prison term for burglary, with 384 days of pre-sentence
credit, and credit for time served on the misdemeanor conviction.

¶5           Despite these pronouncements at the hearing, the resulting
minute entry states the court found

              the existence of the following prior felony
              conviction(s):

              Count 001 INDECENT EXPOSURE, a Felony 6
              Non Dangerous felony committed on
              06/16/2011 and convicted on 01/10/2012 in
              CR2011131263-001 in Maricopa County.

              UNLAW FLIGHT FROM LAW ENF VEH, a
              Felony 5 Non Dangerous felony committed on
              02/24/2004 and convicted on 09/01/2005 in
              CR2004041333-001 in Maricopa County.

The order listed no other prior felony convictions.

¶6           This court has jurisdiction over Hardin’s timely appeal under
the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12–120.21(A)(1),
13–4031 and –4033(A).



                                      3
                            STATE v. HARDIN
                            Decision of the Court

                                DISCUSSION

¶7           On appeal, Hardin does not challenge his convictions or the
sentencing on his misdemeanor conviction. Instead, Hardin’s only
argument on appeal is that the court imposed an illegal sentence for his
burglary conviction because the felonies listed in the court’s minute entry
are too old to be historical prior felony convictions (HPFC). As a result,
Hardin argues, the court committed fundamental error resulting in
prejudice when it sentenced him as a Category 2 repetitive offender.

¶8             At the sentencing hearing, Hardin did not dispute that the
convictions listed in the Pen-pack could support sentencing as a Category
2 repetitive offender. As a result, this court reviews his argument on appeal
for fundamental error. State v. Escalante, 245 Ariz. 135, 140 ¶ 13 (2018). “A
defendant establishes fundamental error by showing that (1) the error went
to the foundation of the case, (2) the error took from the defendant a right
essential to his defense, or (3) the error was so egregious that he could not
possibly have received a fair trial.” Id. at 142 ¶ 21 (citation omitted).
Accordingly, Hardin “bears the burden to establish that (1) error exists, (2)
the error is fundamental, and (3) the error caused him prejudice.” State v.
James, 231 Ariz. 490, 493 ¶ 11 (App. 2013) (citations and quotations omitted).
On this record, Hardin has failed to make this showing.

¶9            As relevant here, Hardin needed one HPFC to be sentenced
as a Category 2 repetitive offender. A.R.S. § 13-703(B). An HPFC is defined
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). The definition also includes “[a]ny prior felony conviction for
which the offense of conviction . . . [i]nvolved aggravated driving under the
influence of intoxicating liquor or drugs,” no matter when the offense
occurred. A.R.S. § 13-105(22)(a)(iv).3

¶10            Hardin is correct that the felonies listed in the minute entry
are too old to be HPFCs under Section 13-105(22)(c). In pronouncing
sentence, however, the court did not state that it was relying solely on the
two felony convictions later listed in the minute entry. Instead, the court
found Hardin “should be sentenced under Category 2 as a repetitive
offender, based on the felony convictions proven by the State as
referenced . . . in the Pen-pack.” By referencing the list of convictions in the
Pen-pack, the court included Hardin’s 2004 aggravated DUI felony


3On appeal, the parties do not address the potential applicability of A.R.S.
§ 13-105(22)(d) and therefore that subsection is not addressed here.


                                       4
                           STATE v. HARDIN
                           Decision of the Court

convictions, which are HPFCs. See A.R.S. § 13-105(22)(a)(iv). As a result,
because the court found these aggravated DUI felony convictions at
sentencing, and because either of them constitutes the requisite HPFC,
Hardin has failed to show the court committed fundamental error resulting
in prejudice by sentencing him as a Category 2 repetitive offender. See
A.R.S. § 13-703(B); Escalante, 245 Ariz. at 142 ¶ 21.

                              CONCLUSION

¶11             Hardin’s convictions and sentences are affirmed as modified
to reflect that his 2004 aggravated DUI felony conviction is the basis for his
sentence as a Category 2 repetitive offender.




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




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