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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        JAWON O. SMITH, Appellant.

                             No. 1 CA-CR 17-0090
                                 1 CA-CR 17-0091
                                  (Consolidated)
                               FILED 4-19-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-455082-001
                             CR2015-106122-001
               The Honorable Michael D. Gordon, Judge

    AFFIRMED IN PART; VACATED AND REMANDED IN PART


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Terry M. Crist
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Edward F. McGee
Counsel for Appellant
                            STATE v. SMITH
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Jennifer M. Perkins joined.


J O H N S E N, Judge:

¶1           Jawon O. Smith appeals the sentences imposed after he was
convicted of several felonies. For the following reasons, we affirm the
convictions and resulting sentences except that we vacate and remand the
sentences imposed on the child-prostitution convictions.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Smith was indicted on 13 charges: Sex trafficking of a minor,
a Class 2 felony; aggravated assault, a Class 3 dangerous felony; and 11
counts of child prostitution, each a Class 2 felony. The indictment listed the
date of each of the alleged acts of child prostitution as on or between
September 1, 2013 and December 18, 2014. After a six-day trial, a jury
convicted Smith of sex trafficking of a minor, disorderly conduct as a lesser-
included offense of aggravated assault, and four counts of child
prostitution.

¶3            At sentencing, the court found that Smith had two historical
prior felony convictions – misconduct involving weapons, a Class 4 felony
committed on November 15, 2013, and possession of marijuana, a Class 6
felony committed on April 6, 2009. The court classified all six of the current
convictions as non-dangerous repetitive felonies and sentenced Smith to
what the court stated were the statutory minimum terms of incarceration of
14 years on the sex trafficking conviction, four years for disorderly conduct,
and 21 years for each of the four counts of child prostitution. The court
ordered all the sentences to be served consecutively to each other and
concurrent with the remainder of Smith's sentence on the weapons offense,
for which the court revoked probation and imposed a 1.5-year sentence.

¶4            Smith timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised




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                             STATE v. SMITH
                            Decision of the Court

Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018), 13-4031 (2018) and
-4033(A)(1) (2018).1

                               DISCUSSION

A.     Smith's Sentences as a Category-Three Repetitive Offender.

¶5            The State's original indictment, filed February 13, 2015, did
not allege any prior convictions. In March 2015, the State amended the
indictment to allege that Smith's marijuana conviction was a "multiple
offense not committed on the same occasion" but "not a historical prior
felony." The same day, the State also amended the indictment to allege that
Smith's weapons conviction was an "historical non dangerous felony
conviction[]." At Smith's sentencing, the court found that both prior
convictions were historical prior felony convictions as defined by A.R.S. §
13-105(22) (2018) and sentenced Smith as a category-three offender to 14
years' incarceration on the sex trafficking offense and 21 years for each
count of child prostitution, the minimum sentences for a category-three
offender; and four years on the disorderly conduct offense, one year more
than the minimum for a category-three offender. See A.R.S. § 13-703(J)
(2018) (sentences for "category three repetitive offender").

¶6             Under § 13-703(C), "a person shall be sentenced as a category
three repetitive offender if the person is at least eighteen years of age or has
been tried as an adult and stands convicted of a felony and has two or more
historical prior felony convictions." The court may impose enhanced
sentences under § 13-703, however, only "if an allegation of prior conviction
is charged in the indictment or information and admitted or found by the
court." A.R.S. § 13-703(N). Smith contends the superior court erred by
sentencing him as a category-three offender under § 13-703(C) because the
indictment alleged just one historical prior felony conviction (the weapons
conviction), not two. We review this issue for fundamental error because
Smith did not object at sentencing. See State v. Henderson, 210 Ariz. 561, 567,
¶ 19 (2005); State v. Curry, 187 Ariz. 623, 632 (App. 1996) (fundamental error
review when defendant failed to challenge aggravating factor at
sentencing).

¶7            The State does not dispute that the superior court erred by
sentencing Smith as a category-three offender when the indictment alleged
just one historical prior felony conviction. It argues, however, that Smith


1      Absent material revision of a statute or rule after the date of an
alleged offense, we cite the current version.


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                            STATE v. SMITH
                           Decision of the Court

cannot prove he was prejudiced by the error because he had notice that the
State would seek to use the marijuana conviction to enhance sentences
imposed for his current convictions. See Henderson, 210 Ariz. at 567, ¶ 20
("To prevail under [the fundamental error] standard of review, a defendant
must establish both that fundamental error exists and that the error in his
case caused him prejudice.").

¶8             Smith argues that under § 13-703(N), "a defendant must be
informed prior to trial that enhancement of his sentence is possible." To be
sure, "[a]s a policy matter the defendant should know the full extent of the
potential punishment that he faces before trial." State v. Rodgers, 134 Ariz.
296, 306 (App. 1982). A defendant must be fairly forewarned of the State's
intended use of prior convictions "such that the defendant is not 'misled,
surprised or deceived in any way by the allegations' of prior convictions."
State v. Benak, 199 Ariz. 333, 337-38, ¶¶ 15-18 (App. 2001) (quoting State v.
Bayliss, 146 Ariz. 218, 219 (App. 1985)).

¶9             In support of its contention that Smith is not entitled to have
his sentences vacated because of the error, the State cites State v. Williams,
144 Ariz. 433, 442 (1985), in which the superior court erroneously allowed
the State to amend the indictment's allegations of prior convictions after the
verdict but before sentencing. See A.R.S. § 13-703(N) (allowing a prior
conviction to be alleged "at any time before the date the case is actually
tried" and giving the court discretion to reject amendment only if the
allegation is within 20 days of trial and the court finds prejudice to the
defendant). The indictment in Williams had alleged two prior convictions
for purposes of sentencing enhancement; the tardy amendment substituted
a third prior conviction for one of the two originally alleged. The supreme
court did not reverse the sentencing because it concluded the defendant
"had timely notice of the prosecutor's intent to use prior convictions to seek
enhanced punishment." 144 Ariz. at 442.

¶10           Here, the State alleged almost 20 months before trial that it
intended to use Smith's prior marijuana conviction for enhancement
purposes under § 13-703. Although that amendment characterized the
conviction as not an historical prior felony, it was treated throughout
Smith's case as if it was. At Smith's settlement conference – more than 15
months before his trial – the court informed Smith that the marijuana felony
"count[ed]" for sentencing purposes and he therefore had "two prior
felonies." The settlement judge told Smith that his two prior felonies
subjected him to a presumptive sentence of 15.75 years on the sex trafficking
charge and 11.25 years for the aggravated assault charge – the presumptive
terms for these offenses for category-three offenders with two prior


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                             STATE v. SMITH
                            Decision of the Court

historical felonies. See A.R.S. § 13-703(J). Moreover, the parties' joint
pretrial statement stated that Smith had "two historical prior felony
convictions" and that as a result, he faced a sentencing range for sex
trafficking and aggravated assault for a person with two historical prior
felony convictions.

¶11           The State argues that, like the defendant in Williams, Smith
was on notice that the State would ask the court to sentence him pursuant
to § 13-703(C). The statute allows a defendant to be sentenced as a repetitive
offender "if an allegation of [a] prior conviction is charged in the
indictment." A.R.S. § 13-703(N). We agree that Williams applies here. Both
the prior convictions on which the court relied in sentencing Smith were
charged in amendments to the indictment, and, as set out above, Smith
understood that they could render him subject to sentencing as a category-
three offender.

B.     Application of Statutory            Amendment     to   Smith's    Child-
       Prostitution Sentences.

¶12           At trial, the victim of the prostitution offenses testified but did
not identify the specific dates of the offenses. Smith asserts that, as a result,
there was no evidence showing whether the child prostitution offenses of
which he was convicted occurred before or after an amendment to the
sentencing statute took effect on July 24, 2014. He argues the court erred by
classifying him as a repetitive offender under the amended version of
A.R.S. § 13-3212 because the pre-amendment version of the statute allowed
an enhanced sentence for repetitive offenders only upon proof of a prior
offense for child prostitution. See A.R.S. § 13-3212(G)(2), (3) (2013)
(allowing sentencing enhancement as a repetitive offender with one or
more historical prior felony convictions "for a violation of this section").

¶13           It is undisputed that when he was sentenced, Smith had no
prior convictions for child prostitution. Accordingly, the State confesses
error, agreeing that because the dates of his child-prostitution offenses are
unclear from the record, the court erred by applying the version of § 13-
3212 that took effect on July 24, 2014. The State concedes that Smith must
be resentenced according to the prior version of that statute. See State v.
Martinez, 226 Ariz. 221, 224, ¶ 17 (App. 2011) (imposition of an illegal
sentence is fundamental error).

¶14          Smith argues that because the court imposed minimum
enhanced sentences for his child-prostitution offenses, the court must
resentence him to seven years on each child-prostitution offense – the



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                              STATE v. SMITH
                             Decision of the Court

minimum term of incarceration for a first-time child-prostitution offender
under the older version of the statute. See A.R.S. § 13-3212(G)(1) (2013). But
on remand, the superior court need not choose to impose the minimum
sentence under the correct sentencing regime. See State v. Osborn, 220 Ariz.
174, 179, ¶ 14 (App. 2009) ("[T]he guarantee against double jeopardy [does
not] restrict[] the length of a sentence imposed upon retrial after a
defendant's successful appeal.") (quoting Monge v. California, 524 U.S. 721,
730 (1998)).

¶15           Smith also contends that in resentencing him on the child-
prostitution convictions, the court may not impose an enhanced sentence
under A.R.S. § 13-703. He contends that "A.R.S. § 13-3212(G) is a special
sentencing statute that takes precedence over the general sentencing
statutes treating [] repetitive offenders addressed by the various
subsections of A.R.S. § 13-703." Our supreme court has held, however, that
a defendant may be sentenced under the general repetitive offender
enhancement provisions in § 13-703 even if a more specific repetitive
offender enhancement such as § 13-3212(G) applies. See State v. Diaz, 224
Ariz. 322, 324-25, ¶ 16 (2010) ("[A]bsent an express exclusion in a separate
provision of our statutory sentencing scheme, the State may pursue
enhanced penalties against a repetitive offender under A.R.S. § 13-703.").

¶16             Smith further argues that, on remand, the court may not
sentence him as a category-three offender on the child-prostitution charges
because his prior marijuana conviction had become "stale" as to those
offenses and therefore did not qualify as an historical prior conviction
under § 13-703(C). The State concedes that the marijuana conviction does
not qualify as an historical prior conviction for purposes of sentencing
Smith for the prostitution offenses because the prostitution offenses may
have occurred more than five years after the marijuana offense. See A.R.S.
§ 13-105(22)(c) (2018) (defining "[h]istorical prior felony conviction" as, inter
alia, "[a]ny class 4, 5 or 6 felony . . . that was committed within the five years
immediately preceding the date of the present offense").




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                           STATE v. SMITH
                          Decision of the Court

                             CONCLUSION

¶17           For the foregoing reasons, we affirm Smith's convictions and
the resulting sentences, with the exception of the sentences imposed on the
four child-prostitution convictions. We vacate those sentences and remand
for resentencing consistent with this decision.




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




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