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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   DOMINGO R. FRANCISCO, Appellant.

                            Nos. 1 CA-CR 16-0221
                              1 CA-CR 16-0229
                              1 CA-CR 16-0234
                              FILED 3-21-2017


           Appeal from the Superior Court in Maricopa County
                         Nos. CR 1997-095578
                          CR 2010-030787-001
                          CR 2015-104420-001
                    Honorable Jay R. Adleman, Judge


                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By William Simon
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
                          STATE v. FRANCISCO
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Patricia K. Norris joined.


M c M U R D I E, Judge:

¶1           Domingo Ray Francisco (“Defendant”) appeals his
convictions and sentences in these consolidated cases. For the following
reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            In 1997, in Maricopa County cause number CR1997-095578,
Defendant pled no contest to two counts of armed robbery, non-repetitive
and non-dangerous class 2 felonies, and one count of aggravated assault, a
non-repetitive and non-dangerous class 3 felony. Defendant was sentenced
to seven years in the Arizona Department of Corrections for both counts of
armed robbery to be served concurrently. The sentence on the aggravated
assault conviction was suspended and Defendant was placed on probation
for a term of four years, commencing upon the completion of Defendant’s
incarceration on the armed robbery convictions.

¶3            On June 9, 2009, Defendant’s probation term was extended for
a period of three years based on Defendant’s failure to pay restitution. In
July 2009, Defendant’s probation officer filed a petition to revoke
Defendant’s probation based on allegations that Defendant had committed
new criminal offenses. The court issued a bench warrant for Defendant’s
arrest. Defendant was incarcerated in a federal facility at the time the bench
warrant was issued, having been sentenced to a term of 30 months, imposed
on January 4, 2010, in CR2009-00816-001-PHX-JAT.

¶4            Defendant ultimately pled guilty in Maricopa County cause
number CR2010-030787 to unlawful flight from a law enforcement vehicle,
a class 5 non-dangerous, non-repetitive offense. The court suspended the
imposition of a sentence in CR2010-030787 and placed Defendant on
intensive probation to begin after Defendant’s release from federal prison.
In CR1997-095578, the court reinstated Defendant on probation for a term
of four years to begin upon release from federal custody, but increased the




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                          STATE v. FRANCISCO
                           Decision of the Court

supervision level to intensive probation. Both probationary terms were
ordered to run concurrently.

¶5            In February 2015, Defendant was indicted on one count of
burglary in the first degree, a dangerous class 2 felony, and one count of
aggravated assault, a dangerous class 3 felony. The State filed various pre-
trial motions, including the allegation that Defendant used a deadly
weapon during the commission of the offense, and was on probation for the
“serious offense of Armed Robbery.”

¶6            A six-day jury trial took place in September 2015 and the jury
found Defendant guilty of burglary in the first degree and aggravated
assault. The jury also found the crimes were dangerous, and the offenses
caused physical, emotional, or financial harm to the victim on both counts.
During the aggravation portion of the trial, the State called Lane
Gunderson, a probation officer with the Maricopa County Adult Probation
Department. The probation officer testified that Defendant was on
probation for unlawful flight from law enforcement from the 2010
conviction, and aggravated assault—not armed robbery—from the 1997
conviction.

¶7           The State moved to amend the allegation that Defendant
committed the instant offenses while on release to reflect Defendant was in
fact on probation for aggravated assault, not armed robbery. The State
argued, pursuant to Arizona Rule of Criminal Procedure 13.5(b), that the
amendment to change the name of the allegation was technical in nature.
Defendant moved for a directed verdict pursuant to Arizona Rule of
Criminal Procedure 20 as to all aggravating factors and specifically the
allegation under § 13-708(B), arguing, inter alia, the State had not met its
burden in proving Defendant was on probation for armed robbery as set forth
in the State’s allegation. Defendant claimed the allegation provided
improper notice and prejudiced his defense.

¶8            The superior court allowed the amendment to the allegation
that Defendant was on release during the commission of the crime, finding
Defendant had sufficient notice and the amendment itself was a technical
amendment as opposed to substantive. The jury found Defendant was on
probation for both aggravated assault and unlawful flight, and the superior
court found Defendant had two prior felony convictions of armed robbery.
At sentencing, the superior court proceeded to sentence Defendant under
Arizona Revised Statutes (“A.R.S.”) section 13-708(B) and -703(C) as a




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                           STATE v. FRANCISCO
                            Decision of the Court

category three non-dangerous but repetitive offender, or alternatively,
under A.R.S. § 13-704(B) and (D) as a dangerous, repetitive offender.1

¶9           At sentencing, Defendant argued the § 13-708(B) allegation
should be stricken, and that he was placed in the incorrect sentencing
category. The court considered the argument as a motion to reconsider and
it was summarily denied. Defendant also argued the case should be
referred pursuant to A.R.S. § 13-603(L). The superior court denied that
motion as well.

              The superior court, in considering mitigating factors, revoked
Defendant’s probation regarding the 1997 matter, and sentenced Defendant
to a mitigated term of 2.5 years’ incarceration with 807 days’ presentence
incarceration credit. The court revoked probation as to the 2010 matter and
sentenced Defendant to a presumptive term of 1.5 years’ incarceration with
583 days’ presentence incarceration credit to run concurrently with the 1997
matter.

             The superior court sentenced Defendant to a mandatory
minimum of 28 years’ incarceration regarding the burglary in the first
degree as mandated by A.R.S. § 13-708(B), and 20 years’ incarceration for
the aggravated assault to run concurrently with each other and
consecutively to the sentences imposed on the probation matters.

¶10          Defendant filed timely notices of appeal and the matters were
consolidated. We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031,
and -4033(A)(1).

                               DISCUSSION

¶11            An amendment to a sentencing allegation is reviewed for an
abuse of discretion. State v. Johnson, 198 Ariz. 245, 247, ¶ 4 (App. 2000).
Whether a trial court applied the correct sentencing statute is reviewed de
novo. State v. Hollenback, 212 Ariz. 12, 16, ¶ 12 (App. 2005). We view the facts
and any reasonable inferences in the light most favorable to sustaining the
convictions. Id. at 14, ¶ 2.

¶12           Defendant argues, citing State v. Freeney, that the amendment
to the allegation that Defendant was on probation for a serious offense is
not technical in nature because the elements of aggravated assault and

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


                                       4
                           STATE v. FRANCISCO
                            Decision of the Court

armed robbery materially differ. He also argues the State cannot change the
nature of the offense charged, and by doing so caused him prejudice. 223
Ariz. 110, 112, ¶ 11 (2009). We disagree.

¶13            Rule 13.5(b) states: a “charge may be amended only to correct
mistakes of fact or remedy formal or technical defects . . . .” “A defect may
be considered formal or technical when its amendment does not operate to
change the nature of the offense charged or to prejudice the defendant in
any way.” State v. Bruce, 125 Ariz. 421, 423 (1980). Charges in an indictment
and sentencing allegations are not procedural or substantive equivalents.
State ex rel. McDougall v. Crawford, 159 Ariz. 339, 342 (App. 1989).

¶14           In McDougall, we held the Arizona Rules of Criminal
Procedure do not uniformly apply to amendments related to the
information or complaint and amendments related to sentencing
allegations. McDougall, 159 Ariz. at 342; see State ex rel Collins v. Udall, 149
Ariz. 199, 200 (1986) (a prior conviction may increase the punishment for a
repeat offender but it does not, by itself, create a different crime.) More
importantly, McDougall noted a difference between an amendment
pursuant to Rule 13.5(a) and 13.5(b), indicating the prosecutor has
discretion to add allegations of prior convictions within the time frame
prescribed by Rule 16.1(b), but nevertheless is precluded from adding
substantive charges to the complaint and may only amend it to correct
mistakes of fact or technical defects. McDougall, 159 Ariz. at 342. In State v.
Cons, this court noted amending a sentencing allegation to conform to the
evidence was not error, because it “did not so alter the nature of the
allegation that Cons was deprived of the notice to which he was entitled.”
208 Ariz. 409, 412, ¶ 6 (App. 2004).

¶15           While the distinction exists to illustrate the types of
amendments allowable under each sub-section, and the time frame in
which to do so, we reach the same analysis of notice and prejudice under
either sub-section. See State v. Lehr, 227 Ariz. 140, 153–54 (2011) (analyzing
an amendment to a notice of aggravators under 13.5(a) and 13.5(b) when
the time requirement under Rule 16.1(b) had not been met, the amendment
would only be allowed if it was technical or to correct mistakes of fact).

¶16           In this case, the State sought to amend the sentencing
allegation that indicated Defendant was on probation for “armed robbery,”
when in fact, Defendant was on probation for “aggravated assault” in the
same cause number. The State relied on Rule 13.5(b), arguing the
amendment from armed robbery to aggravated assault was merely
technical because the enhancement only required proof that Defendant was


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                           STATE v. FRANCISCO
                            Decision of the Court

on release from a serious offense, and because both offenses are serious
offenses, there would be no prejudice. See A.R.S. § 13-708(B), (C). The
superior court granted the motion to amend, over Defendant’s objection,
finding it was merely technical and Defendant had sufficient notice.

¶17           The record supports the superior court’s finding. The State
had given proper notice of its intent to use Defendant’s release status from
a serious offense to enhance Defendant’s sentence as early as April 2015.
The State disclosed it would call Defendant’s probation officer to testify as
to Defendant’s on-release status, and provided Defendant the sentencing
minute entries which showed Defendant was on probation for “aggravated
assault,” not “armed robbery” as set forth in the § 13-708(B) notice. The
probation officer’s testimony was consistent with the sentencing minute
entries provided in discovery.

¶18          In determining whether Defendant was prejudiced by the
error in the State’s notice, the controlling inquiry turns to whether
Defendant had sufficient notice, suffered from any surprise or prejudice,
and whether he had ample opportunity to prepare to defend against the
amended allegation. State v. Sammons, 156 Ariz. 51, 54−55 (1988) (court
drew no distinction between 13.5(a) and (b) for sentencing enhancement
amendment); Cons, 208 Ariz. at 611, ¶ 6. Defendant offered no evidence
regarding how he was surprised or unable to defend against the on-release
charge.

¶19           Under A.R.S. § 13-708(B), “a person who is convicted of a
dangerous offense that is committed while the person is on release . . . for a
conviction of a serious offense as defined in § 13-706, . . . shall be sentenced
to the maximum sentence authorized under this chapter . . . .” (emphasis
added). Thus, the State was required to give Defendant notice it intended
to use Defendant’s on-release status from a serious offense as a sentencing
enhancement. Which serious offense Defendant was on probation for
(aggravated assault or armed robbery), was immaterial to the ultimate
sentence to be imposed. Defendant was on notice the State would seek the
sentencing enhancement as early as April 2015, when the State filed its
allegation. The State provided notice of the sentencing minute entries and
that it would be calling Defendant’s probation officer. This record
demonstrates that Defendant had ample opportunity to defend against the
State’s sentencing allegation. This is distinguishable from State v. Sammons,
upon which Defendant relies. 156 Ariz. at 54.

¶20         In Sammons, the State’s motion to amend did not provide
defendant with sufficient notice because there were two different causes in


                                       6
                           STATE v. FRANCISCO
                            Decision of the Court

which defendant was on parole—both deriving from different counties and
cause numbers. Id. Furthermore, the State’s motion to amend was made
after the enhancement proceedings on prior convictions had concluded. Id.
at 55. This is markedly distinguishable from the matter before the court.
Here, the State moved to amend the allegation prior to resting its case and
the Defendant had independent notice he was on probation, as he was
regularly meeting with his probation officer. Additionally, both the armed
robbery and aggravated assault stem from the same 1997 Maricopa County
cause number. Defendant also had notice from the sentencing minute
entries that were disclosed and entered into evidence.

¶21           Aggravated assault and armed robbery are both serious
offenses under § 13-706. A.R.S. § 13-706(F)(1)(d), (F)(1)(h). Section 13-708(B)
requires proof the Defendant was on release for a conviction of a serious
offense. It is a legal determination whether the probationary offense
qualifies as a serious offense under the statute. The amendment to the
allegation in this instance is immaterial given both convictions (armed
robbery and aggravated assault) are serious offenses under § 13-706(F).
Accordingly, we find Defendant was not prejudiced by the amendment to
the allegation.

¶22           Because Defendant had sufficient notice of his on-release
status, and the amendment did not cause prejudice, we find the superior
did not err.

                              CONCLUSION

¶23          Accordingly,     we       affirm    Defendant’s   sentences   and
convictions.




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




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