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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                TRENT XAVIER BOUHDIDA, SR., Appellant.

                              No. 1 CA-CR 18-0015
                                FILED 1-29-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR 2016-000961-001
          The Honorable Richard L. Nothwehr, Judge Pro Tempore

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Advisory Counsel for Appellant

Trent Xavier Bouhdida, Sr., San Luis
Appellant
                            STATE v. BOUHDIDA
                             Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Paul J. McMurdie and Judge Kent E. Cattani joined.


C A M P B E L L, Judge:

¶1             Trent Xavier Bouhdida, Sr., timely appeals his convictions
and sentences for four counts of sale of marijuana. He argues the
convictions violated his due process rights because the superior court
lacked subject matter jurisdiction. For the reasons that follow, we affirm the
ruling of the superior court.

                               BACKGROUND

¶2             Bouhdida met an undercover police officer in a 7-Eleven
parking lot in Phoenix. The officer initially made contact with Bouhdida as
part of a sting operation to recover stolen goods. Bouhdida and the officer
exchanged phone numbers and on the following day Bouhdida sent a text
message to the officer stating that he had marijuana for sale. The officer
arranged to purchase marijuana from Bouhdida. Between May and July,
Bouhdida sold marijuana to the undercover officer on four separate
occasions.

¶3           The grand jury returned an indictment charging Bouhdida
with four counts of the sale or transportation of marijuana. Each count of
the indictment alleged that Bouhdida

       knowingly did transport for sale, import for sale, import into
       this state, or offer to transport for sale or import into this state,
       sell, transfer or offer to sell or transfer an amount of marijuana
       having a weight of less than two pounds, in violation of
       [Arizona Revised Statutes (“A.R.S.”)] §§ 13-3401, 13-3405, 13-
       3418, 13-3701, 13-702, and 13-801.

The grand jury further alleged that Bouhdida committed the sales in
Maricopa County. The State subsequently amended the indictment to
allege several sentence enhancements, including four dangerous historical
felony convictions from 2009.




                                        2
                           STATE v. BOUHDIDA
                            Decision of the Court

¶4           A jury found Bouhdida guilty on all four counts. At
sentencing, the court found that the State had proven all four of the
dangerous historical felony convictions and sentenced him to four
concurrent, presumptive prison terms of 11.25 years. The court revoked
Bouhdida’s probation he was serving for the prior felonies and imposed a
consecutive sentence of five years. Bouhdida timely appealed.

                               DISCUSSION

¶5             On appeal, Bouhdida challenges the superior court’s subject
matter jurisdiction. “Subject matter jurisdiction is ‘the power of a court to
hear and determine a controversy.’” State v. Fimbres, 222 Ariz. 293, 301, ¶ 29
(App. 2009) (quoting State v. Bryant, 219 Ariz. 514, 517, ¶ 14 (App. 2008).
Subject matter jurisdiction is a question of law, which we review de novo.
Id. at 301, ¶ 27.1

¶6            As an initial matter, Bouhdida attempts to challenge the
superior court’s subject matter jurisdiction over his prior felony convictions
used to enhance his sentence. He argues that the court “failed to prove the
nature and cause of action, thus, ‘subject matter jurisdiction’ on the record
for both cases,” citing this case and the prior felony case. Bouhdida’s
assertions regarding his prior convictions are unavailing. To the extent
Bouhdida challenges the court’s revocation of his probation, Arizona Rule
of Criminal Procedure 27.8 allows the court to revoke probation upon a
finding that the probationer violated a condition of probation. Further, a
defendant cannot contest the legal sufficiency of a prior conviction used as
a sentence aggravator on direct appeal; rather, a defendant must do so
directly through post-conviction relief procedures in the prior case. State v.
Gunches, 240 Ariz. 198, 205, ¶ 28 (2016); State v. Cropper, 205 Ariz. 181, 185,
¶¶ 19-20 (2003).

¶7            Bouhdida’s argument regarding jurisdiction in the instant
case is similarly unavailing. The indictment in this case charged him with
four counts of selling marijuana in Maricopa County, class 3 felonies, in
violation of A.R.S. § 13-3405(A)(4), (B)(10). The superior court had


1 Bouhdida knowingly, intelligently, and voluntarily waived counsel, was
appointed advisory counsel, and represents himself on appeal. See U.S.
Const. amends. VI, XIV; Ariz. Const. art. 2, § 24; State v. Cornell, 179 Ariz.
314, 322 (1994). In his reply brief, Bouhdida also attempts to raise an
additional argument: that the superior court committed fraud. This
argument is waived because Bouhdida failed to raise it in his opening brief.
See Nelson v. Rice, 198 Ariz. 563, 567, ¶ 11 n.3 (App. 2000).


                                      3
                            STATE v. BOUHDIDA
                             Decision of the Court

jurisdiction over the felony charges. See Ariz. Const. art. 6, § 14(4)
(conferring original jurisdiction to the superior court over felony criminal
cases); A.R.S. § 12-123 (“The superior court shall have original and
concurrent jurisdiction as conferred by the constitution . . . .”).

¶8              Bouhida argues that “subject matter jurisdiction has not been
. . . proven or established and the court is acting in kangaroo with no legal
authority to render a judg[ment].” Bouhdida further argues that the
prosecutor “must state the cause of action/authority to give the court
subject matter jurisdiction over the indictment.” But in a criminal case,
“subject matter jurisdiction is established when the indictment is filed,”
and, once established, cannot be lost. Fimbres, 222 Ariz. at 302, ¶ 33. The
State has subject matter jurisdiction to prosecute crimes committed within
its territorial borders. A.R.S. § 13-108(A)(1). Accordingly, the indictment
conferred subject matter jurisdiction on the superior court.

¶9              Bouhdida next argues that the court lacked subject matter
jurisdiction because the indictment itself was defective. Article 2, Section 30
of the Arizona Constitution provides that “[n]o person shall be prosecuted
criminally in any court of record for felony or misdemeanor, otherwise than
by information or indictment.” A felony prosecution may begin with an
indictment, which “reflects a grand jury’s finding of probable cause to
support the charged offense.” State v. Maldonado, 223 Ariz. 309, 310, ¶ 7
(2010); see also Ariz. R. Crim. P. 13.1(b). Arizona Rule of Criminal Procedure
13.12 governs the form of indictments. An indictment is legally sufficient if
it informs the defendant of the essential elements of the charges. Ariz. R.
Crim. P. 13.1(a); cf. State v. Kerr, 142 Ariz. 426, 431 (App. 1984) (explaining
when an information is legally sufficient). Rule 13.1 further requires that for
each count, the indictment cite the statute the defendant is alleged to have
violated. Ariz. R. Crim. P. 13.1(d).

¶10             The indictment in this matter complied with every aspect of
the rule and was therefore legally sufficient. Moreover, even assuming the
indictment was defective, the Arizona Supreme Court has rejected the
argument that such a defect deprives a court of subject matter jurisdiction
over further proceedings in a criminal case. Maldonado, 223 Ariz. at 311,
¶ 13; see also United States v. Cotton, 535 U.S. 625, 630 (2002) (“[D]efects in an
indictment do not deprive a court of its power to adjudicate a case.”).

2The Arizona Rule of Criminal Procedure governing indictments in effect
when the indictment was filed in this case is Rule 13.2 (2016). It was
amended and renumbered in 2018. No material revision was made to the
rule, so we cite to the current version.


                                        4
                         STATE v. BOUHDIDA
                          Decision of the Court

Indeed, the superior court properly exercised subject matter jurisdiction
over Bouhdida’s case and his due process rights were not violated by the
court’s exercise of jurisdiction.

                             CONCLUSION

¶11          For the foregoing reasons, we affirm the convictions and
sentences.




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




                                      5
