                                                                FILED BY CLERK
                           IN THE COURT OF APPEALS                 MAY 31 2007
                               STATE OF ARIZONA                     COURT OF APPEALS
                                 DIVISION TWO                         DIVISION TWO




THE STATE OF ARIZONA,                      )
                                           )      2 CA-CR 2006-0032
                              Appellee,    )      DEPARTMENT A
                                           )
                   v.                      )      OPINION
                                           )
RAMON ANTHONY JOYNER,                      )
                                           )
                             Appellant.    )
                                           )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                              Cause No. CR20051817

                         Honorable Howard Hantman, Judge

          AFFIRMED IN PART; REVERSED IN PART AND REMANDED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Eric J. Olsson                                    Tucson
                                                           Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender
  By Stephan J. McCaffery                                                  Tucson
                                                           Attorneys for Appellant


V Á S Q U E Z, Judge.
¶1            A jury found Ramon Joyner guilty of possession of a narcotic drug, possession

of marijuana, possession of drug paraphernalia, and resisting arrest. It also found that he had

prior convictions for armed robbery and attempted armed robbery. He was sentenced to a

mitigated, enhanced, eight-year term of imprisonment for possession of a narcotic drug and

presumptive, enhanced, 3.75-year terms of imprisonment for each of the other convictions,

all to be served concurrently.

¶2            On appeal, Joyner maintains his sentences for the possession convictions are

illegal. He argues that, as a matter of law, his prior convictions for armed robbery and

attempted armed robbery do not fall within the statutory definition of “violent crime” in

A.R.S. § 13-604.04, and he is therefore eligible for mandatory probation. See A.R.S. § 13-

901.01. On this record, we agree.

                                 Procedural Background

¶3            The state alleged in Joyner’s indictment that he was “ineligible for probation

pursuant to A.R.S. § 13-901.01” based on his past convictions for attempted armed robbery

and armed robbery, “which was a violent crime.” After the guilty verdicts were rendered,

the state presented the jury with evidence of Joyner’s prior criminal convictions, including

charging documents, plea agreements, sentencing minute entries, and presentence reports for

both offenses. The jury found Joyner had been previously convicted of armed robbery and

attempted armed robbery, which were identified in the verdict forms by specific cause

numbers.


                                              2
¶4            At sentencing, neither the parties nor the trial court addressed the potential

application of § 13-901.01, and the presentence report simply noted, “[n]o probation

available.”1 The court “reaffirm[ed]” the convictions and the jury’s findings that Joyner had

two prior felony convictions before imposing sentence.

                                    Standard of Review

¶5            Because Joyner did not raise the issues he raises now at sentencing, we review

his claims only for fundamental error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115

P.3d 601, 607 (2005). “To prevail under this standard of review, a defendant must establish

both that fundamental error exists and that the error in his case caused him prejudice.” Id.

¶ 20. We will not disturb a sentence that is within the statutory range absent an abuse of the

trial court’s discretion. State v. Russell, 175 Ariz. 529, 534, 858 P.2d 674, 679 (App.

1993). On the other hand, “[t]he failure to impose a sentence in conformity with mandatory

sentencing statutes makes the resulting sentence illegal.” State v. Carbajal, 184 Ariz. 117,

118, 907 P.2d 503, 504 (App. 1995). And we have held that the “[i]mposition of an illegal

sentence constitutes fundamental error.” State v. Thues, 203 Ariz. 339, ¶ 4, 54 P.3d 368,

369 (App. 2002); see also State v. Vargas-Burgos, 162 Ariz. 325, 327, 783 P.2d 264, 266


       1
         Although Joyner had argued in a sentencing memorandum that “on the current state
of the record probation is still mandatory . . . [because] the jury never made any finding with
respect to the ‘violent’ nature” of his prior convictions, he appears to have abandoned this
argument at the sentencing hearing. Moreover, Joyner never raised the argument he now
makes on appeal: that, as a matter of law and statutory definition, a conviction for armed
robbery cannot constitute a conviction for a “violent crime” as defined in A.R.S. § 13-
604.04(B).

                                              3
(App. 1989) (claim that sentence illegal not waived by failure to object in trial court).

Moreover, “[w]hether the trial court applied the correct sentencing statute is a question of

law, which we review de novo.” State v. Hollenback, 212 Ariz. 12, ¶ 12, 126 P.3d 159, 163

(App. 2005).           Sentencing Pursuant to A.R.S. § 13-901.01

¶6             Section 13-901.01 is the codification of a voter initiative commonly known

as Proposition 200 that “significantly changed the legal consequences for defendants

convicted of certain nonviolent, first- and second-time drug offenses.”2 State v. Rodriguez,

200 Ariz. 105, ¶ 2, 23 P.3d 100, 101 (App. 2001). Specifically, § 13-901.01(A) provides:

                      Notwithstanding any law to the contrary, any person
               who is convicted of the personal possession or use of a
               controlled substance or drug paraphernalia is eligible for
               probation. The court shall suspend the imposition or execution
               of sentence and place the person on probation.

¶7             There are limited exceptions to this mandatory probation requirement,

however. A court is not required to place a defendant on probation when a defendant has

been convicted for a third time of personal possession of a controlled substance, see § 13-

901.01(H)(1); State v. Guillory, 199 Ariz. 462, ¶ 3, 18 P.3d 1261, 1263 (App. 2001), or

when a defendant “has been convicted of or indicted for a violent crime as defined in §13-

604.04,” § 13-901.01(B). Section 13-604.04, which was also enacted to give effect to

Proposition 200, 1997 Ariz. Sess. Laws, ch. 6, § 1, defines a violent crime as “any criminal



       The initiative was titled “Drug Medicalization, Prevention, and Control Act of
       2

1996.” 1997 Ariz. Sess. Laws, p. 2895.

                                             4
act that results in death or physical injury or any criminal use of a deadly weapon or

dangerous instrument,” § 13-604.04(B). Thus, a defendant who has multiple prior

convictions for drug offenses or any prior conviction for a violent crime is subject to

“[s]tandard felony sentencing provisions that permit imprisonment.” Foster v. Irwin, 196

Ariz. 230, ¶ 3, 995 P.2d 272, 273-74 (2000). Conversely, “[a] prior conviction for a

non-violent, non-drug-related crime does not negate the probation requirement” of § 13-

901.01. Foster, 196 Ariz. 230, ¶ 10, 995 P.2d at 276.

¶8           Here, the trial court implicitly found Joyner was ineligible for mandatory

probation under § 13-901.01(B) (and, by reference, § 13-604.04) because of Joyner’s prior

convictions for armed robbery and attempted armed robbery. Citing State v. Crawford, 214

Ariz. 129, 149 P.3d 753 (2007); State v. Hinchey, 165 Ariz. 432, 799 P.2d 352 (1990); and

Cherry v. Araneta, 203 Ariz. 532, 57 P.3d 391 (App. 2002), Joyner argues that whether a

defendant’s prior conviction may be characterized as a violent crime as defined in § 13-

604.04 is a legal question that may be resolved only by reference to the statutory elements

of the offense of conviction, without consideration of the underlying facts. And, according

to Joyner, a conviction for armed robbery does not necessarily establish a “criminal use of

a deadly weapon or dangerous instrument,” § 13-604.04, because armed robbery may also

be committed by using or threatening to use a simulated deadly weapon, see A.R.S. § 13-




                                            5
1904.3 The state, on the other hand, urges us to affirm the court’s implicit finding that

Joyner had previously been convicted of a violent crime by considering facts alleged in the

documents of record for his prior convictions, including the charging documents, a pretrial

release statement, a presentence report, and a sentencing minute entry. According to the

state, those documents establish Joyner used a gun when he committed his prior offenses.




       3
       Section 13-1904, A.R.S., provides:

                   A. A person commits armed robbery if, in the course of
              committing robbery as defined in § 13-1902, such person or an
              accomplice:

                   1. Is armed with a deadly weapon or a simulated deadly
              weapon; or

                    2. Uses or threatens to use a deadly weapon or
              dangerous instrument or a simulated deadly weapon.

Section 13-1902(A), A.R.S., provides:

                     A person commits robbery if in the course of taking any
              property of another from his person or immediate presence and
              against his will, such person threatens or uses force against any
              person with intent either to coerce surrender of property or to
              prevent resistance to such person taking or retaining property.

“‘Deadly weapon’ means anything designed for lethal use, including a firearm,” A.R.S.
§ 13-105(13), and “‘[d]angerous instrument’ means anything that under the circumstances
in which it is used, attempted to be used or threatened to be used is readily capable of
causing death or serious physical injury,” § 13-105(11).


                                             6
                 Determination of Violent Nature of Prior Conviction

a.     Based on Statutory Definition

¶9            Division One of this court has held that a court may consider the statutory

definition of an offense to discern whether the elements required for conviction necessarily

establish the commission of a violent crime under § 13-901.01(B). Cherry, 203 Ariz. 532,

¶¶ 8-9, 57 P.3d at 393 (previous plea of guilty to assault for “[i]ntentionally, knowingly or

recklessly caus[ing] any physical injury to another person,” A.R.S. § 13-1203(A)(1),

necessarily established “physical injury” requirement of § 13-604.04) (first alteration in

Cherry); see also Montero v. Foreman, 204 Ariz. 378, ¶¶ 13-14, 64 P.3d 206, 209-10

(App. 2003) (previous guilty plea to disorderly conduct “in violation of A.R.S. §

13-2904(A)(6),” requiring finding that Montero “[r]ecklessly handle[d], display[ed] or

discharge[d] a deadly weapon or dangerous instrument” necessarily established violent crime

under § 13-604.04) (first alteration in Montero). In Cherry and Montero, the same proof

required to find the defendants guilty of the elements of their charged offenses also

established, necessarily, that they had been convicted of violent crimes as defined in §§ 13-

901.01(B) and 13-604.04. Cf. State v. Parker, 128 Ariz. 97, 99, 624 P.2d 294, 296 (1981)

(dangerous nature allegation “must be submitted to the jury for a separate finding unless an

element of the offense charged contains an allegation and requires proof of the dangerous

nature of the felony”) (emphasis added).




                                             7
¶10             In this case, by contrast, Joyner is correct that his prior conviction for armed

robbery, as defined in § 13-1904, does not necessarily establish he used a deadly weapon

or dangerous instrument because armed robbery may be committed with a simulated deadly

weapon—and a “simulated deadly weapon” may be neither deadly nor dangerous. See, e.g.,

State v. Bousley, 171 Ariz. 166, 168, 829 P.2d 1212, 1214 (1992) (positioning hands to

“simulate[] deadly weapons” supported armed robbery conviction); State v. Felix, 153 Ariz.

417, 419, 737 P.2d 393, 395 (App. 1986) (nasal inhaler constituted simulated deadly

weapon). As a result, armed robbery, based solely on its statutory definition, is not

necessarily a violent crime under the definition in § 13-604.04.4 Thus, next we address

whether the other evidence the state proffered could be considered to establish the violent

nature of Joyner’s prior convictions.

b.         Consideration of Underlying Facts Prohibited

¶11             In Cherry, Division One of this court suggested, in dictum, that analyzing the

statutory elements of an offense is the only means of concluding a prior offense was violent



       4
        We are constrained by the plain language of §§ 13-604.04 and 13-1904. Using other
definitions, robbery and armed robbery have been “repeatedly found [to be] . . . crime[s] of
violence.” State v. Lee, 185 Ariz. 549, 557, 917 P.2d 692, 700 (1996) (statutory definition
of robbery “requires the use of threat of force,” which supported former A.R.S. § 13-
703(F)(2) aggravating circumstance of prior conviction of crime involving violence); cf. State
v. Tresize, 127 Ariz. 571, 574, 623 P.2d 1, 4 (1980) (under prior version of § 13-1904,
1997 Ariz. Sess. Laws, ch. 142, § 73, before statute amended to include simulated weapon,
jury instructed that armed robbery required proof defendant armed with or used deadly
weapon or dangerous instrument and “must necessarily have concluded that the offense was
a dangerous offense” subject to enhancement under A.R.S. § 13-604).

                                                8
as defined in §§ 13-901.01 and 13-604.04, reasoning that “whether [a] prior conviction is

a violent crime for purposes of A.R.S. § 13-901.01 is a question of law for the trial judge.”

203 Ariz. 532, ¶ 8, 57 P.3d at 393. Division One perceived that question to be a narrow

one, as explained below:

              Analysis of the prior conviction “is purely a legal question; it
              does not depend on the merits of alternative versions of the
              facts.” [State v.] Ault, 157 Ariz. [516,] 520, 759 P.2d [1320,]
              1324 [(1988)]. The scope of a trial court’s review of the prior
              conviction is limited, however, to the statutory elements of the
              offense, without consideration of other evidence.

203 Ariz. 532, ¶ 11, 57 P.3d at 394.

¶12           As the court noted in Cherry, in other contexts in which sentencing statutes

require a trial court to determine the nature of a prior conviction, the court may consider

only the statutory elements necessary for the conviction.5 Id. This limitation “guarantees

that a criminal defendant’s due process rights will not be violated,” State v. Schaaf, 169

Ariz. 323, 333, 819 P.2d 909, 919 (1991), by subjecting the defendant to “what is, in effect,

a second trial on [a] defendant’s prior conviction to establish the existence” of a sentencing



       5
        Because § 13-604.04 calls for a conclusion about the nature of a prior offense, we
distinguish it from sentencing factors that are established by mere proof that a prior
conviction exists and liken it to those recidivist sentencing factors that require some
additional analysis. Compare, e.g., A.R.S. § 13-703(F)(2) (prior conviction for enumerated
“serious offense”) with former § 13-703(F)(2), 1988 Ariz. Sess. Laws, ch. 155, § 1 (prior
felony “involving the use or threat of violence on another person”); see also State v. Heath,
198 Ariz. 83, ¶ 4, 7 P.3d 92, 93 (2000) (admission to existence of extrajurisdictional prior
conviction “does not constitute proof that the foreign conviction would have been a felony
under Arizona law” for purpose of § 13-604(N)).

                                              9
factor, State v. Gillies, 135 Ariz. 500, 511, 662 P.2d 1007, 1018 (1983). Accordingly, “a

court ‘may not consider other evidence . . . or bring in witnesses’ to establish the [nature of

the prior] offense.” State v. Roque, 213 Ariz. 193, ¶ 81, 141 P.3d 368, 391 (2006), quoting

Schaaf, 169 Ariz. at 334, 819 P.2d at 920.

¶13           For example, to find that a defendant had been previously convicted of a

felony “involving the use or threat of violence on another person,” an aggravating

circumstance found in former A.R.S. § 13-703(F)(2), 1988 Ariz. Sess. Laws, ch. 155, § 1,

the court must have concluded that “the particular crime [could have been] perpetrated only

with the use or threat of violence. . . . If ‘the defendant [could] commit or be convicted of

the crime without the use or threat of violence, the prior conviction c[ould] not qualify as

a statutory aggravating circumstance’” under that statute. Schaaf, 169 Ariz. at 333-34, 819

P.2d at 919-20 (Nevada’s statutory elements for attempted murder did not require use of

violence; trial court erred in considering testimony about underlying facts), quoting State

v. Fierro, 166 Ariz. 539, 549, 804 P.2d 72, 82 (1990) (Texas convictions for aggravated

assault and robbery did not support § 13-703(F)(2) aggravator because offenses could be

committed “recklessly” without use or threat of force) (citations omitted in Schaaf); see also

State v. Hinchey, 165 Ariz. 432, 437, 799 P.2d 352, 357 (1990) (prior conviction did not

qualify as § 13-703(F)(2) aggravating circumstance based on statutory elements of

endangerment).




                                              10
¶14           Similarly, a sentencing court may not consider the facts underlying a foreign

prior conviction to determine whether it would constitute a felony in Arizona under A.R.S.

§ 13-604(N), see, e.g., Crawford, 214 Ariz. 129, ¶¶ 6-9, 149 P.3d at 755-56, or a “serious

offense” under § 13-703(F)(2), see, e.g., Roque, 213 Ariz. 193, ¶¶ 82-88, 141 P.3d at

391-92. As these cases suggest, because the nature of a prior conviction is “a purely legal

issue,” limiting the court’s analysis to the elements established by the prior conviction frees

the sentencing court “from the burden of making factual determinations about the

defendant’s underlying conduct.” Crawford, 214 Ariz 129, ¶ 9, 149 P.3d at 756.

¶15           We see no reason why this same analysis should not apply here. We

recognize, as the state suggests, that it is unlikely the voters who enacted Proposition 200

intended that a defendant with prior convictions for armed robbery and attempted armed

robbery be eligible for mandatory probation.6 But our supreme court has emphasized that

this rule—that the nature of a prior conviction may only be determined by the statutory

elements of the offense—is required “[t]o protect ‘a criminal defendant’s due process

rights.’” Roque, 213 Ariz. 193, ¶ 81, 141 P.3d at 391, quoting Schaaf, 169 Ariz. at 333-34,

819 P.2d at 919-20. Such protections are due defendants being placed on probation under

§ 13-901.01 as well as those being sentenced under A.R.S. §§ 13-604, 13-702, and 13-703.


       6
        In fact, Division One of this court has also assumed robbery is among the violent
crimes that exclude a defendant from the benefits of mandatory probation under Proposition
200. Gray v. Irwin, 195 Ariz. 273, ¶ 13, 987 P.2d 759, 762 (App. 1999) (suggesting
defendants with “prior felony convictions for homicide, sexual assault, and robbery” would
be denied mandatory probation under § 13-901.01(B)).

                                              11
Accordingly, we hold that whether a prior conviction is a violent crime under § 13-

901.01(B) is a legal determination based solely on the elements of the prior conviction.7

c.     Evidence that Prior Conviction Was for Violent Offense

¶16           Nonetheless, the state argues that the trial court was entitled to consider

documents related to Joyner’s prior convictions without subjecting Joyner to “‘what

amounts to a second trial’ on a prior conviction . . . because the relevant evidence is already

in the record.” None of the Arizona cases construing §§ 13-604 or 13-703 has addressed

whether documents associated with a plea of guilty may be used to delimit the nature of a

prior conviction when, as here, an offense has been broadly defined by statute. But some

have addressed whether a court may rely on charging documents or jury instructions that

narrow the elements of an offense in such a way that, even if the statutory definition is

broad, a court can still be certain that the fact of conviction necessarily established every

element required to prove the sentencing factor. In State v. Thompson, 186 Ariz. 529, 531-

32, 924 P.2d 1048, 1050-51 (App. 1996), for example, Division One distinguished the

underlying facts of the prior crime from evidence of the prior conviction: “It is one thing

. . . to preclude the State from ‘bring[ing] in the victim of the prior crime, long after its

commission,’ to establish the nature of the prior crime. It is another to preclude the State

from introducing documentary evidence defining the nature of the prior conviction.” Id.,



       7
        In light of this holding, we do not address Joyner’s alternative argument that he is
entitled to a jury trial on the question.

                                              12
quoting Schaaf, 169 Ariz. at 334, 819 P.2d at 920 (distinguishing Gillies, 135 Ariz. at

511, 662 P.2d at 1018) (alteration in Thompson).

¶17           Most recently, our supreme court addressed limitations on evidence a court

may consider to determine whether a prior conviction in another jurisdiction involves “‘an

offense which if committed within this state would be punishable as a felony’” for purposes

of sentence enhancement pursuant to § 13-604(N) and (W). Crawford, 214 Ariz. 129, ¶ 1,

149 P.3d at 754, quoting § 13-604(N). This determination requires comparison of the

statutory definitions and a “‘strict conformity between the elements of the [foreign] felony

and the elements of some Arizona felony.’” Id. ¶ 7, quoting State v. Clough, 171 Ariz. 217,

219, 829 P.2d 1263, 1265 (App. 1992).

¶18           In Crawford, the state relied on Thompson in arguing that the trial court could

have considered Crawford’s federal indictment for possessing a credit card stolen from the

United States mail to establish conduct punishable as a felony in Arizona. 214 Ariz. 129,

¶¶ 4, 10, 149 P.3d at 755-56. Thompson had held that a charging document, when

incorporated in a judgment of conviction, may be used to “establish[] that the defendant was

convicted under a particular subsection of a foreign statute, if that subsection encompasses

only conduct that would constitute a felony in Arizona.” 186 Ariz. at 531-32, 924 P.2d at

1050-51 (also construing § 13-604(N)).

¶19           The supreme court emphasized the general rule that a sentencing court must

focus “solely on the elements of the foreign statute,” Crawford, 214 Ariz. 129, ¶ 9, 149 P.3d


                                             13
at 756, and the limited nature of Thompson’s exception, stating: “Thompson allows use of

a charging document ‘only to narrow the [prior] conviction to a particular subsection of the

statute that served as the basis of the [prior] conviction’ and not to establish ‘the factual

nature of the prior conviction.’” Crawford, 214 Ariz. 129, ¶ 11, 149 P.3d at 756, quoting

Roque, 213 Ariz. 193, ¶ 88, 141 P.3d at 392. Because the federal statute at issue in

Crawford contained no subsections, the court held Thompson was inapplicable. Crawford,

214 Ariz. 129, ¶ 11, 149 P.3d at 756.

¶20           The court in Crawford noted that the “cases interpreting § 13-604 are

consistent with our case law involving the use of foreign convictions in capital sentencing.”

Id. ¶ 8, citing Roque, 213 Ariz. 193, ¶¶ 82-88, 141 P.3d at 391-92 (California robbery was

“serious offense” under § 13-703(F)(2)); State v. Henry, 176 Ariz. 569, 587, 863 P.2d 861,

879 (1993) (California involuntary manslaughter not crime of violence under former

§ 13-703(F)(2)); State v. Schaaf, 169 Ariz. 323, 334, 819 P.2d 909, 920 (1991) (Nevada

attempted murder not violent crime under former § 13-703(F)(2)). These cases, like

Crawford, considered only the statutory definition of the foreign offense of conviction to

determine the applicability of an Arizona sentencing factor.

¶21           In contrast, some capital cases addressing whether a defendant had prior

Arizona convictions for crimes involving violence, an aggravating factor under former

§ 13-703(F)(2), suggest that jury instructions and forms of verdict may be considered—not

as extrinsic evidence of the facts underlying the conviction, but as intrinsic evidence of what


                                              14
the jury necessarily decided by its verdict. For example, in State v. Walden, 183 Ariz. 595,

617-18, 905 P.2d 974, 996-97 (1995), the court acknowledged that Arizona’s statutory

definitions of sexual assault and kidnapping did not necessarily establish crimes of violence

because both can be committed using deceit rather than force. Id., citing holdings in State

v. Bible, 175 Ariz. 549, 604, 858 P.2d 1152, 1207 (1993). But the court nonetheless found

Walden’s Hannah8 prior convictions were violent crimes under former § 13-703(F)(2) based

on limiting jury instructions that had defined the lack of consent element for sexual assault

to mean “‘the victim was coerced by the immediate or threatened use of force against a

person or property’” and the restraint element for kidnapping to “require[] a finding that the

victim’s movements were restricted ‘by physical force or intimidation.’” 183 Ariz. at 617,

905 P.2d at 996. According to the supreme court, these jury instructions effectively refined

the statutory definitions, so “these prior convictions necessarily involved the use or threat

of violence.” Id. at 618, 905 P.2d at 997.

¶22           In State v. McKinney, 185 Ariz. 567, 582-83, 917 P.2d 1214, 1229-30 (1996),

the court cited Walden, noting that although the defendant’s “prior conviction [for second-

degree murder] was for a crime that, on the face of the statute, might have been committed

recklessly” and so could not be used as an aggravating factor under former § 13-703(F)(2),

the jury instructions or forms of verdict might have been used to “narrow the . . . charge”




       8
        State v. Hannah, 126 Ariz. 575, 617 P.2d 527 (1980).

                                             15
found in the statutory definition, 185 Ariz. at 583, 917 P.2d at 1230. As the court

explained:

                      [Defendant]’s prior conviction is not disqualified merely
              because the statutory definition of the crime permits it to be
              committed with a reckless mental state. It is disqualified
              because the instructions and the non-specific form of verdict
              . . . did not narrow the mental state of the charge . . . . Had
              [defendant]’s instructions or form of verdict specified that the
              mental state for his second degree murder conviction was based
              on either an intentional or knowing mens rea, the conviction
              would have qualified, regardless of the fact that the crime’s
              statutory definition allows for conviction under a lesser mental
              state.

Id.; see also State v. Schackart, 190 Ariz. 238, 247, 947 P.2d 315, 324 (1997) (implying

trial court might have relied on jury instructions used in obtaining prior conviction to

determine violence factor under former § 13-703(F)(2); supreme court would not consider

evidence because presented for first time on appeal).9

¶23           Federal courts have faced similar evidentiary issues when required to determine

whether a defendant’s prior state conviction warrants sentence enhancement pursuant to the

Armed Career Criminal Act, 18 U.S.C. § 924(e). See, e.g., Taylor v. United States, 495

U.S. 575, 110 S. Ct. 2143 (1990). Like Arizona, federal courts do not permit review of the


       9
        Schackart; State v. McKinney, 185 Ariz. 567, 917 P.2d 1214 (1996); and State v.
Walden, 183 Ariz. 595, 905 P.2d 974 (1995), provide some of our supreme court’s more
recent statements about how a court may determine whether a conviction qualifies as an
aggravating factor under former § 13-703(F)(2). Section 13-703(F)(2) was amended in 1993
to substitute “serious offense, whether preparatory or completed,” defined to include specific
offenses, for “felony in the United States involving the use or threat of violence on another
person.” 1993 Ariz. Sess. Laws, ch. 153, § 1.

                                             16
underlying facts to determine the nature of a prior conviction and have held that the federal

enhancement statute “generally requires the trial court to look only to the fact of conviction

and the statutory definition of the prior offense.” Id. at 602, 1105 S. Ct. at 2160. However,

just as McKinney and Walden suggest that, in Arizona, jury instructions might be considered

to narrow the elements of a prior conviction, the Supreme Court held in Taylor that a

federal sentencing court may “go beyond the mere fact of conviction in a narrow range of

cases where a jury was actually required to find all the elements” necessary for the

enhancement factor. 495 U.S. at 602, 110 S. Ct. at 2160. Thus, to establish a prior

conviction for burglary of a building in a state having a burglary statute with broader

application, the Court held, “if the indictment or information and jury instructions show that

the defendant was charged only with a burglary of a building, and that the jury necessarily

had to find an entry of a building to convict, then the Government should be allowed to use

the conviction for enhancement.” Id.

¶24           Relevant to our discussion in this case, the Supreme Court has recently

clarified this analysis of federal law and has extended its application to prior state

convictions arising out of bench trials and guilty pleas. Shepard v. United States, 544 U.S.

13, 16, 19-21, 125 S. Ct. 1254, 1257, 1259-60 (2005). First rejecting the government’s

argument that a court should be permitted to review police reports and complaint

applications to determine the nature of a prior conviction, the Court reaffirmed its decision

in Taylor and held a federal sentencing court may rely only on “conclusive records made


                                             17
or used in adjudicating guilt.” Id. at 21-24, 1255 S. Ct. at 1260-62. Such records may

include charging documents and jury instructions, as set forth in Taylor, and as

              analogs to jury instructions[,] . . . a bench-trial judge’s formal
              rulings of law and findings of fact, and in pleaded cases[,] . . .
              the statement of factual basis for the charge, shown by a
              transcript of plea colloquy or by written plea agreement
              presented to the court, or by a record of comparable findings of
              fact adopted by the defendant upon entering the plea.

Id. at 20, 125 S. Ct. at 1259-60 (citation omitted). The Court reasoned that by reviewing

these record documents, a court may be able to determine “whether the plea had

‘necessarily’ rested on” the elements required for enhancement. Id. at 21, 125 S. Ct. at

1260, quoting Taylor, 495 U.S. at 602, 110 S. Ct. at 2160.

¶25           We conclude the reasoning of the Supreme Court in Shepard may be

applicable to cases involving prior Arizona convictions. Although its adoption would be an

extension of current Arizona law, it is consistent with McKinney and Walden and the

underlying rule for determining the nature of prior Arizona convictions: Recognizing that

“[e]vidence of a prior conviction is reliable, the defendant having had his trial and exercised

his full panoply of rights which accompany his conviction,” Gillies, 135 Ariz. at 511, 662

P.2d at 1018, a court may “consider only evidence of the conviction,” State v. Hinchey, 165

Ariz. 432, 437, 799 P.2d 352, 357 (1990), and “cannot look behind the [prior] conviction

to determine the true facts of the case,” McKinney, 185 Ariz. at 581, 917 P.2d at 1228. Cf.

Redeker v. Eighth Judicial Dist. Court, 127 P.3d 520, 525-26 (Nev. 2006) (adopting

Shepard for Nevada determination of existence of prior conviction “of a felony ‘involving

                                              18
the use or threat of violence to the person of another’”; finding “the approach in Taylor and

Shepard answers the concerns about due process . . . identified by the Arizona Supreme

Court [in Gillies], as well as the practical difficulties and potential unfairness of a factual

approach”), quoting Nev. Rev. Stat. 200.033(2)(b).

¶26           We need not decide this issue today, however.           Even if Walden’s rule

permitting consideration of jury instructions to narrow a statutory definition were clearly

applicable to a determination of whether prior convictions were for violent crimes under

§§ 13-901.01 and 13-604.04, and even if that rule were extended to allow similar review,

in determining the existence of prior convictions resulting from bench trials or pleas of

guilty, of only those “conclusive records made or used in adjudicating guilt,” Shepard, 544

U.S. at 21, 125 S. Ct. at 1260, none of the documents suggested by the state meet that

standard.

¶27           First, the charging documents that led to Joyner’s prior convictions, although

referring to the use of a gun, are not reliable evidence of the elements established by his

convictions because they were not incorporated by reference in the judgments of conviction.

Cf. Thompson, 186 Ariz. at 532, 924 P.2d at 1051. Indeed, as reflected in Joyner’s plea

agreements and judgments for both cases, his prior convictions were for “nondangerous”

offenses, and Joyner’s plea agreements “serve[d] to amend” the charging documents to

conform to his guilty pleas. See State v. Wilson, 126 Ariz. 348, 351-52, 615 P.2d 645, 648-




                                              19
49 (App. 1980). As a result, the charging documents are not reliable evidence of the

elements of Joyner’s convictions.10

¶28           The other documentary evidence suggested by the state, including the release

papers and presentence reports prepared for Joyner’s prior convictions, although suggestive

of the facts underlying his prior crimes, do not prove what statutory elements were

established by the judgments of conviction. Nor is the sentencing court’s direction in the

armed robbery sentencing minute entry that Joyner “forfeit the firearm related to this cause”

the kind of conclusive record that would reliably narrow the basis for Joyner’s armed

robbery conviction. In addition, transcripts of Joyner’s plea colloquys for the prior

convictions were not provided to the trial court and are not included in the record on appeal.

¶29           Thus, the state failed to establish that Joyner has a prior conviction for a

violent crime under § 13-901.01(B). Accordingly, Joyner was entitled to suspension of the

imposition of sentence and placement on mandatory probation for his possession offenses.11


       10
         The title of Joyner’s armed robbery information stated that the offense was a
dangerous felony, but the information did not include allegations of dangerousness pursuant
to § 13-604. If the dangerous nature of the armed robbery had been properly alleged and
proved and ultimately incorporated in the judgment of conviction for that offense, the court
could have relied on the judgment because, “[a]lthough ‘dangerous’ and ‘violent’ are
separate concepts, they share a similar definition.” State v. Benak, 199 Ariz. 333, ¶ 7, 18
P.3d 127, 129 (App. 2001) (construing § 13-604.04). Joyner’s armed robbery plea
agreement expressly provided that any allegation of dangerousness was “dismissed or, if not
yet filed, shall not be brought.”
       11
         We reject the state’s suggestion that, under A.R.S. § 13-702(C)(11), “a court may
take into account all the defendant’s criminal activity and history in determining sentences,
even if the defendant has not been convicted or charged for that conduct.” The trial court

                                             20
See § 13-901.01(A). Because this provision is mandatory, Joyner’s prison sentences are

illegal, see State v. Carbajal, 184 Ariz. 117, 118, 907 P.2d 503, 504 (App. 1995), and

therefore, the error is fundamental, see State v. Thues, 203 Ariz. 339, ¶ 4, 54 P.3d 368, 369

(App. 2002).

d.     Prejudice

¶30            The state asserts Joyner cannot establish the prejudice required by State v.

Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d 601, 607 (2005), because he cannot “show that

he, in particular, did not use a gun” during the armed robbery and attempted armed robbery

he committed in 2000. We read Henderson differently.

¶31            To establish that a fundamental error is also prejudicial, a defendant must

show that, but for the error, a reasonable fact-finder “could have reached a different result.”

Id. ¶ 27. In this case, the state bore the burden of proving both the existence of a prior

conviction and its violent nature. See Foster v. Irwin, 196 Ariz. 230, ¶ 8, 995 P.2d 272, 275

(2000) (“The state did not brief or argue . . . whether Foster’s conviction for evading police

was a violent crime. Thus, his only prior felony conviction does not remove Foster from the

mandatory probation requirement of § 13-901.01.”); cf. State v. Rodriguez, 200 Ariz. 105,

¶ 5, 23 P.3d 100, 101 (App. 2001) (“agree[ing] with the state’s concession of error” that




did not aggravate Joyner’s sentences pursuant to § 13-702. To find a defendant ineligible
for mandatory probation under § 13-901.01(B), a court must find the defendant has a prior
conviction or is currently under indictment for a violent crime as defined in § 13-604.04.
State v. Gomez, 212 Ariz. 55, ¶ 29, 127 P.3d 873, 878 (2006).

                                              21
evidence of prior convictions for drug offenses was insufficient). Henderson does not shift

this burden or require Joyner to disprove what the state failed to prove. Cf. State v.

Morales, No. CR-06-0374-PR, ¶ 12, 2007 WL 1345384 at *3 (Ariz. May 8, 2007)

(stipulation of prior convictions entered without voluntariness determination fundamental

error; defendant not required to show absence of prior convictions to establish prejudice

because such requirement would relieve state of burden of proof).

¶32           On this record, the trial court erred by finding that Joyner had a prior

conviction for a violent crime. But for this error, Joyner would have been placed on

probation for the possession convictions. Instead, he was sentenced to an eight-year prison

term and two, concurrent, 3.75-year prison terms. Joyner has shown prejudice.

                Reliance on Prior Convictions for Enhanced Sentence

¶33           Joyner also argues that none of his convictions should have resulted in

enhanced prison terms because neither the judge nor the jury expressly found that his prior

convictions constitute historical prior felony convictions under former A.R.S.

§ 13-604(V)(2), now (W)(2). See 2003 Ariz. Sess. Laws, ch. 11, § 1; 2005 Ariz. Sess. Laws,

ch. 188, § 1. We find no prejudicial error in the trial court’s reliance on Joyner’s prior

convictions to enhance his sentence for resisting arrest. Although Joyner is correct that the

verdict forms for the prior convictions did not include the offense dates, the verdicts

specifically identified the county in which the convictions were entered and the cause

number of each conviction. Certified copies of the conviction records for those cause


                                             22
numbers were admitted into evidence and established that Joyner’s prior offenses were

committed in 2000 and led to two convictions, one for armed robbery, a class two felony,

and another for attempted armed robbery, a class three felony. Joyner never challenged the

admission or veracity of these documents. We disagree with Joyner’s assertion that the jury

was required to expressly find the prior convictions constituted historical prior felony

convictions under § 13-604(W)(2). As Joyner notes, § 13-604(P) provides that only a trial

court may find that prior convictions constitute historical prior felony convictions. That

determination requires the court to apply the statutory provisions to the facts of the prior

convictions. Joyner’s prior convictions unequivocally fall within the provisions of § 13-

604(W)(2)(b). Joyner was therefore correctly sentenced on his conviction for resisting arrest

pursuant to § 13-604(C). We find no fundamental error in this sentence.

                                        Conclusion

¶34           For the reasons stated, we affirm Joyner’s convictions and his sentence for

resisting arrest, but vacate his sentences for possession of a narcotic drug, possession of

marijuana, and possession of drug paraphernalia and remand the case to the trial court for

resentencing on those convictions.



                                              ____________________________________
                                              GARYE L. VÁSQUEZ, Judge

CONCURRING:



                                             23
____________________________________
JOHN PELANDER, Chief Judge



____________________________________
JOSEPH W. HOWARD, Presiding Judge




                                 24
