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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 AARON RICHARD MARTENS, Appellant.

                             No. 1 CA-CR 16-0531
                               FILED 8-29-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2010-005770-001
                 The Honorable Joan M. Sinclair, Judge

                   REVERSED IN PART; REMANDED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jason Lewis
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
                            STATE v. MARTENS
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Randall M. Howe joined.


M c M U R D I E, Judge:

¶1             Aaron Richard Martens appeals his convictions and sentences
for ten counts of sexual exploitation of a minor, all Class 2 felonies and
dangerous crimes against children. Martens contends the uncertified
documents presented as proof of his prior military convictions were
insufficient to support a sentencing enhancement for historical prior felony
convictions. Because the uncertified military reports presented as evidence
of prior convictions were insufficient to support a finding of historical prior
felony convictions, we vacate the superior court’s sentences and remand for
resentencing consistent with this decision.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On May 19, 2008, Arizona State University (“ASU”) Police
Aide Leonard Nasca was in the computer section of the university’s
downtown campus library when he noticed a computer suspiciously
canted. He approached the computer from behind and saw a man, later
identified as Martens, looking at several thumbnail pictures containing
naked young boys. Nasca stepped away from behind Martens and called
ASU Police Sergeant Al Phillips. When Phillips arrived he also observed
Martens viewing pornographic images of young boys. Phillips approached
Martens, detained him, and called Phoenix Police.

¶3             Phoenix Police Officer Lindy Steele responded to Phillips’s
call and, after interviewing Phillips and Nasca, contacted Detective Michael
Thorley from the internet crimes against children task force to take over the
investigation. Thorley arrived at the scene and interviewed Martens.
During the interview, Martens admitted to having been dishonorably
discharged from the United States Air Force for possession of child
pornography.

¶4           Thorley contacted Detective David Elting with the Phoenix
Police Department Forensic Computer Unit, who extracted 190 images of
child pornography from the ASU computer used by Martens. Thorley



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                            STATE v. MARTENS
                            Decision of the Court

reviewed the images and forwarded ten to Dr. Leslie Quinn, a child abuse
pediatrician, who prepared a report that identified the ages of the boys in
each image. Based on Dr. Quinn’s report and testimony, the boys’ ages
ranged from less than seven-years-old to less than 15-years-old.

¶5               The State charged Martens with ten counts of sexual
exploitation of a minor, Class 2 felonies and dangerous crimes against
children. Before trial, the State alleged Martens had historical prior felony
convictions in the military court of the United States Air Force and in the
United States District Court. At a pretrial hearing, Martens objected to the
admission of the State’s evidence regarding his prior military convictions,
arguing the military reports were hearsay, violated Arizona Rule of
Evidence 403, and violated the Confrontation Clause. The superior court
admitted the evidence, finding the reports qualified as other-act evidence
under Arizona Rule of Evidence 404(c) and did not violate the
Confrontation Clause. Martens waived his right to a jury trial, and was
found guilty on all charges. The State did not call a law enforcement officer
to testify regarding Martens’s prior military convictions, nor did Martens
testify at trial.

¶6             At sentencing, Martens again objected to the evidence
regarding his prior military convictions, but the superior court denied his
objection and found Martens had two prior felony convictions based on the
Air Force reports presented. 1 Pursuant to Arizona Revised Statutes
(“A.R.S.”) section 13-705, Martens received mandatory consecutive life
sentences on all counts because the two prior felony convictions were also
dangerous crimes against children. Martens timely appealed and this court
has 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). 2




1      Martens also objected to his federal court conviction being used as a
historical prior felony conviction because the date of the federal offense
occurred after the events giving rise to the charges in the instant matter. The
superior court agreed and did not consider the federal court conviction as
a historical prior during sentencing. Cf. State v. Thomas, 219 Ariz. 127, 130,
¶ 9 (2008) (a sentencing enhancement based on a historical prior felony
conviction requires only the conviction, not the commission, to take place
before the offense set for sentencing).

2       Absent material revision after the date of an alleged offense, we cite
to the current version of applicable statutes and rules.


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                            STATE v. MARTENS
                            Decision of the Court

                               DISCUSSION

¶7            Martens argues the Air Force reports considered as evidence
of his prior military felony convictions were not “certified copies” of
convictions, and were therefore insufficient to prove those felony
convictions. Martens also argues he could not have admitted to the prior
felony convictions because he did not give enough information regarding
the specific details of those convictions during his interview with Detective
Thorley to satisfy a finding of historical prior felony convictions. He further
argues he was not advised of his rights in accordance with Arizona Rule of
Criminal Procedure 17.6 before admitting to any prior convictions.

¶8            A superior court’s determination that a prior felony
conviction constitutes a historical prior felony conviction for purposes of
sentence enhancement is a mixed question of law and fact that this court
reviews de novo. State v. Rasul, 216 Ariz. 491, 496, ¶ 20 (App. 2007). 3 This
court also reviews de novo whether the superior court properly accepted a
defendant’s admission of prior convictions. State v. Anderson, 199 Ariz. 187,
194, ¶ 35 (App. 2000).

A.     The Evidence was Insufficient to Support a Finding of Historical
       Prior Felony Convictions.

¶9            Martens argues the superior court erred by considering Air
Force reports that were not “certified copies” of prior convictions when
finding the State had provided sufficient evidence of historical prior felony
convictions for purposes of sentence enhancement. We agree.

¶10           To enhance a sentence as a repetitive offender, the State must
allege a prior conviction and the prior conviction must be admitted by the
defendant or found by the court. A.R.S. § 13-703(N). “Prior convictions for
sentence enhancement purposes must be established by clear and
convincing evidence.” State v. Cons, 208 Ariz. 409, 415, ¶ 15 (App. 2004). To
prove a prior conviction, the State must provide “positive identification
establishing that the accused is the same person who previously was
convicted, as well as evidence of the conviction itself.” Cons, 208 Ariz. at


3      The State argues Martens failed to object to the sufficiency of the
evidence presented regarding his prior felony conviction at trial, and
therefore this court should review for fundamental error. However,
Martens objected to the evidence considered both at the pretrial hearing
and the sentencing hearing. Accordingly, we decline to find the error was
waived.


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                             STATE v. MARTENS
                             Decision of the Court

415, ¶ 16. “The proper procedure for establishing a prior conviction is for
the state to submit a certified copy of the conviction and establish that the
defendant is the person to whom the document refers.” Id. While courts
may consider other kinds of evidence, there is a need for “reliable
documentary evidence.” State v. Robles, 213 Ariz. 268, 273, ¶¶ 15–16 (App.
2006); see also State v. Nash, 143 Ariz. 392, 403 (1985).

¶11           The State introduced evidence of Martens’s previous military
felony convictions in the form of two uncertified summaries provided by
the United States Air Force Office of Special Investigations titled “Report of
Investigation.” The State concedes on appeal that the Air Force reports were
not certified records of Martens’s prior military convictions, and instead
claims the superior court relied on a certified copy of a separate felony
conviction in federal court, which referenced his two prior military
convictions. However, the certified federal court record only references the
prior military convictions in an attached affidavit from an FBI investigator,
and does not contain any evidence that the federal court made a finding
regarding the military convictions. The federal court record also lacks the
dates of conviction or any cause numbers for those military convictions.
Furthermore, while the superior court did rely on the certified federal court
documentation in its Rule 404 findings, the court specifically excluded the
federal court conviction as a historical prior felony conviction at sentencing.

¶12            The State also argues the uncertified Air Force reports should
be sufficient evidence of the prior felony convictions because they contain
Martens’s name, date of birth, and social security number. In support, the
State cites to various cases where other evidence besides a certified record
of a conviction was sufficient to support a finding of a historical prior felony
conviction. However, the alternative documentation provided in those
cases was still certified. See State v. Van Adams, 194 Ariz. 408, 419, ¶ 37 (1999)
(certified copies of a California disposition of arrest); State v. White, 160 Ariz.
24, 28 (1989) (certified copies of a plea agreement signed by the defendant
and docket sheets indicating the agreement was filed in court); Nash, 143
Ariz. at 403 (certified commitment records from other states); State v. Baca,
102 Ariz. 83, 87 (1967) (certified records of commitment); In re C.D., 240
Ariz. 239, 242, ¶ 14 (App. 2016) (certified minute entries); Robles, 213 Ariz.
at 273, ¶ 17 (certified copies of DOC documents); Cons, 208 Ariz. at 415, ¶ 17
(certified copies of convictions).

¶13           The documents presented to the superior court at sentencing
were not certified, lacked any fingerprints or photographs of Martens, and
all the names besides Martens’s had been redacted. The uncertified Air
Force reports relied upon by the superior court were insufficient to find


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                           STATE v. MARTENS
                           Decision of the Court

historical prior felony convictions for purposes of enhancing Martens’s
sentences. See Cons, 208 Ariz. at 415, ¶ 16 (“[T]he state must submit positive
identification establishing that the accused is the same person who
previously was convicted, as well as evidence of the conviction itself.”). 4

B.     Martens’s Statements to Detective Thorley Were Insufficient to
       Qualify as an Admission of Historical Prior Felony Convictions.

¶14           The State contends that even if the Air Force reports were not
sufficient evidence to prove Martens’s historical prior felony convictions,
Martens admitted to the prior felony convictions in a pretrial interview with
Detective Thorley. We disagree.

¶15           Rule 17.6 provides that “whenever a prior conviction is
charged, an admission thereto by the defendant shall be accepted only
under the procedures of [Rule 17].” Ariz. R. Crim. P. 17.6. The procedures
of Rule 17 require the court to address the defendant in open court and
inform him or her of the nature and range of possible sentences which
might result from the admission and the constitutional rights the defendant
foregoes by making the admission. See Ariz. R. Crim. P. 17.2; State v.
Morales, 215 Ariz. 59, 61, ¶ 9 (2007).

¶16            The State concedes that Martens was not given the
advisement required for a formal admission of prior convictions under Rule
17, but instead argues that the superior court could have found the prior
convictions based on the pretrial interview conducted by Detective Thorley.
See State v. Whitney, 159 Ariz. 476, 485 (1989) (an exception to the
requirements of Rule 17 applies where the defendant admits to prior felony
convictions at trial). However, this exception requires admission of the
prior convictions “during [the defendant’s] testimony at trial.” Id. (emphasis
added); see also Ariz. R. Crim. P. 17.6 (exception requires defendant to admit
the prior conviction “while testifying on the stand”). Martens made his


4      The superior court found the Air Force reports were sufficient for a
finding that Martens had committed other acts under Arizona Rule of
Evidence 404(c). Importantly, the requirements for a finding under Rule
404(c) and a sentence enhancement under A.R.S. § 13-703 are not the same.
While Rule 404(c) requires evidence that the defendant committed the
previous act, § 13-703 requires evidence of a prior conviction. Compare A.R.S.
§ 13-703(N) (allegation of prior conviction must be found by the court), with
State v. Goudeau, 239 Ariz. 421, 450, ¶ 96 (2016) (requirements for
introducing other-act evidence). Therefore, the Rule 404(c) finding is not
enough, by itself, for a finding of historical prior felony convictions.


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                          STATE v. MARTENS
                          Decision of the Court

admissions during a pretrial interview with police where he was not under
oath, represented by counsel, or subject to cross-examination. Thus, the
exception is not applicable.

¶17           Finally, the superior court made no reference to Martens’s
pretrial admission at the sentencing hearing, and only relied on the Air
Force reports when finding the two historical prior felony convictions.
Accordingly, Martens did not admit to the historical prior felony
convictions used to enhance his sentence in accordance with Rule 17, and
therefore his admission cannot be accepted.

                             CONCLUSION

¶18           The superior court erred by finding uncertified Air Force
investigation reports introduced by the State to be sufficient evidence of
Martens’s historical prior felony convictions. Therefore, we vacate
Martens’s sentences and remand for resentencing in accordance with this
decision.




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




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