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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                          JAY GENE LEE, Appellant.

                             No. 1 CA-CR 18-0637
                               FILED 6-4-2019


           Appeal from the Superior Court in Coconino County
                        No. S0300CR201800072
             The Honorable Cathleen Brown Nichols, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
                              STATE v. LEE
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Vice-Chief Judge Peter B. Swann and Judge Kenton D. Jones joined.


M c M U R D I E, Judge:

¶1           Jay Gene Lee appeals his conviction and sentence for one
count of aggravated driving under the influence (“DUI”). For the following
reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             The State charged Lee with one count of aggravated DUI for
driving while in actual physical control of a vehicle while under the
influence of drugs and on a suspended license (“Count One”) and with one
count of aggravated DUI for driving while there was a drug or its
metabolite in his body and on a suspended license (“Count Two”), both
class 4 felonies. The State later moved to amend the indictment to include
allegations of the following historical prior felony convictions:

      1. Endangerment, a class 6 felony, committed on or about
         October 13, 2009; and

      2. Solicitation to Commit Shoplifting, a class 6 felony,
         occurring on or about September 11, 2015.

¶3            Lee objected to the motion to amend. He argued his prior
conviction for endangerment was not a historical prior felony conviction
because he committed that offense more than five years before the offense
date of the pending aggravated DUI charges. See Ariz. Rev. Stat. (“A.R.S.”)
§ 13-105(22)(c) (“[a]ny class 4, 5 or 6 felony, except the offenses listed in
subdivision (a) of this paragraph, that was committed within the five years
immediately preceding the date of the present offense” is a historical prior
felony conviction). The State countered that Lee had two aggravated DUI
convictions from 2003 and 2004, thereby making Lee’s endangerment
conviction his third felony conviction and a historical prior felony
conviction. See A.R.S. § 13-105(22)(d) (“[a]ny felony conviction that is a
third or more prior felony conviction” is a historical prior felony
conviction). The motion to amend did not reference the aggravated DUI
priors.


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                               STATE v. LEE
                            Decision of the Court

¶4            At a hearing on the motion to amend, the State argued it was
not required to allege its theory or how it would prove each conviction
constituted a historical prior, but rather, that it only had to provide notice
it sought to enhance Lee’s sentence with prior convictions. The State also
noted it had disclosed its intent to use all four convictions at trial in other
filings.

¶5           The superior court denied the State’s motion to amend the
indictment regarding the allegation of Lee’s prior endangerment conviction
because the date of the offense was outside A.R.S. § 13-105(22)(c)’s five-year
period. The State then petitioned this court for special action relief. We
granted relief, explaining that Lee had sufficient notice that the State
intended to enhance his sentence and the State did not need to inform Lee
within the indictment of the theory by which it would prove the prior
convictions.

¶6             After a three-day trial, the jury convicted Lee on Count Two
as charged, and for driving on a suspended license, a class 1 misdemeanor
and lesser-included offense of Count One. At sentencing, the State admitted
certified copies of Lee’s motor vehicle record and certified copies of Lee’s
prior convictions for the 2003 and 2004 aggravated DUIs, endangerment,
and solicitation. The superior court found the State did not prove by clear
and convincing evidence Lee’s prior endangerment conviction because the
cause number for that offense listed in the certified document did not match
the motor vehicle record. The court did find the State proved by clear and
convincing evidence Lee’s two prior aggravated DUI convictions, and Lee
admitted to the previous solicitation conviction. 1

¶7            Based upon Lee’s three prior historical felony convictions, the
superior court sentenced him as a category three repetitive offender. See
A.R.S. § 13-703(C). Lee again objected at sentencing to the 2003 and 2004
aggravated DUIs being used as historical prior felony convictions, but the
superior court overruled the objection. The court sentenced Lee to the
minimum term of 8 years’ imprisonment, plus two years for committing a

1       We note the superior court’s sentencing order found Lee was
previously convicted of endangerment, not solicitation. “When a
discrepancy between the trial court’s oral pronouncement of a sentence and
the written minute entry can be clearly resolved by looking at the record,
the ‘[o]ral pronouncement in open court controls over the minute entry.’”
State v. Ovante, 231 Ariz. 180, 188, ¶ 38 (2013) (quoting State v. Whitney, 159
Ariz. 476, 487 (1989)) (alteration in original).



                                      3
                               STATE v. LEE
                            Decision of the Court

felony while on felony release, for Count Two. Lee was awarded 324 days’
presentence incarceration credit and sentenced to time served on Count
One. Lee timely appealed, and we have jurisdiction under A.R.S.
§§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                               DISCUSSION

¶8            Lee argues the superior court erred by sentencing him as a
category three repetitive offender. He contends that because the State failed
to allege the 2003 and 2004 aggravated DUI convictions in its motion to
amend the indictment, those convictions could not be used as historical
prior felony convictions. 2

¶9           “[A] person shall be sentenced as a category three repetitive
offender if the person is at least eighteen years of age . . . and stands
convicted of a felony and has two or more historical prior felony
convictions.” A.R.S. § 13-703(C). “Historical prior felony conviction”
means:

       (a)(iv) Any prior felony conviction for which the offense of
       conviction . . . [i]nvolved aggravated driving under the
       influence of intoxicating liquor or drugs.

                               *       *      *
       (c) Any class 4, 5 or 6 felony, except the offenses listed in
       subdivision (a) of this paragraph, that was committed within
       the five years immediately preceding the date of the present
       offense.

       (d) Any felony conviction that is a third or more prior felony
       conviction.

A.R.S. § 13-105(22).

¶10            To enhance a sentence as a repetitive offender, the State must
allege a prior conviction, and the defendant must admit the prior conviction
or be found by the court. A.R.S. § 13-703(N) (the State can allege a prior
conviction any time before trial, although the superior court can preclude
the allegation if it was filed less than 20 days before trial and the defendant
is prejudiced by the late filing). Reference to a statute in an indictment is

2      Lee raises no issues regarding his conviction or sentence for driving
while on a suspended license.



                                      4
                                STATE v. LEE
                             Decision of the Court

sufficient to put a defendant on notice the State intends to seek an enhanced
sentence. See State v. Waggoner, 144 Ariz. 237, 239 (1985) (citing State v.
Barrett, 132 Ariz. 88, 89 (1982) (State’s reference in information to A.R.S.
§ 13-703’s predecessor statute was sufficient to put the defendant on notice
the State sought an enhanced sentence), overruled on other grounds by State v.
Burge, 167 Ariz. 25, 28 (1990)); see also State v. Benak, 199 Ariz. 333, 337, ¶ 16
(App. 2001) (“In some cases, reference in the indictment or information to
the statute under which the enhancement is authorized may constitute
sufficient notice.”).

¶11           The State’s motion to amend the indictment referenced A.R.S.
§ 13-703 and alleged Lee’s prior convictions for solicitation and
endangerment. Although the superior court found the State did not prove
the endangerment conviction by clear and convincing evidence, it did find
the State proved Lee’s 2003 and 2004 aggravated DUI convictions by clear
and convincing evidence. See State v. Cons, 208 Ariz. 409, 415, ¶ 15 (App.
2004) (“[P]rior convictions for sentence enhancement purposes must be
established by clear and convincing evidence.”). The State did not move to
amend the indictment a second time, but a charge is “deemed amended to
conform to the evidence admitted during any court proceeding.” Ariz. R.
Crim. P. 13.5(b); State v. Buccheri-Bianca, 233 Ariz. 324, 329, ¶ 17 (App. 2013).
An indictment may be amended to “correct mistakes of fact or remedy
formal or technical defects.” Buccheri-Bianca, 233 Ariz. at 329, ¶ 17 (quoting
Ariz. R. Crim. P. 13.5(b)). “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).

¶12            In this case, the State’s motion to amend sought to charge Lee
as a category three repetitive offender based upon Lee’s history of prior
felony convictions. To prove Lee’s endangerment conviction was a
historical prior felony conviction, the State necessarily had to prove Lee’s
prior aggravated DUI convictions. See A.R.S. § 13-105(22)(d). And the State
did so by using a certified copy of the convictions to establish Lee was the
person convicted of the crimes. See Cons, 208 Ariz. at 415, ¶ 16 (describing
the “proper procedure” for establishing a prior conviction). Thus, the
“amendment” at sentencing did not alter the charge Lee faced, and it did
not prejudice Lee or alter his defense. See Buccheri-Bianca, 233 Ariz. at 330,
¶¶ 20–22 (considering whether defendant’s defense strategy was effected
when determining whether he was prejudiced by an amendment during
the trial to counts in the indictment).




                                        5
                               STATE v. LEE
                            Decision of the Court

¶13           Lee also does not dispute he had notice of the State’s intent to
seek an enhanced sentence or that he was aware of all four prior felony
convictions. Adequate notice of an allegation of a previous conviction
requires the defendant not be “misled, surprised or deceived in any way by
the allegations.” State v. Bayliss, 146 Ariz. 218, 219 (App. 1985). “Pretrial
notice enables a defendant to know the full range of potential punishment
he faces upon conviction; fundamental fairness and due process require
that allegations that would enhance a sentence be made before trial so that
the defendant can evaluate his options.” Benak, 199 Ariz. at 336–37, ¶ 14.
The supreme court has stated that “a defendant is not prejudiced by
noncompliance with [A.R.S. § 13-703(N)] provided he is on notice before
trial that the prosecution intends to seek the enhanced punishment
provisions of the statute.” State v. Williams, 144 Ariz. 433, 442 (1985)
(defendant not prejudiced by post-verdict amendment substituting one
prior felony conviction for a previously alleged prior conviction); see also
State v. Sammons, 156 Ariz. 51, 54 (1988) (superior court properly denied
post-verdict amendment alleging defendant was on parole on a different
case from a different county from that alleged before trial where State did
not show “defendant had notice, independent from the indictment and the
supplemental allegations, that the state intended to prove a different
parole”).

¶14            The State’s motion to amend the indictment informed Lee it
intended to prove Lee had two historical prior felony convictions. The State
also alleged all four felony convictions as aggravating factors in a separate
motion filed the same day as its motion to amend. The State explained on
at least three occasions—in its reply in support of the motion to amend, at
the hearing on the motion to amend, and in its petition for special
action—that it would prove Lee’s endangerment conviction was a historical
prior felony conviction by proving it was his third felony conviction
following the 2003 and 2004 aggravated DUI convictions.

¶15           The record establishes Lee was not misled, surprised, or
deceived by the use of his 2003 and 2004 aggravated DUIs as historical prior
felony convictions, see Bayliss, 146 Ariz. at 219, and he had notice of the
potential sentence he faced, see Benak, 199 Ariz. at 336–37, ¶ 14. The superior
court did not err by considering Lee’s prior aggravated DUI felonies as




                                      6
                               STATE v. LEE
                            Decision of the Court

historical prior felony convictions or by sentencing him as a category three
repetitive offender. 3

                               CONCLUSION

¶16           For the foregoing reasons, we affirm Lee’s conviction and
sentence.




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


3      Even if we were to find error, it would be harmless beyond a
reasonable doubt. See State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005). If an
appellate court finds a defendant did not have adequate notice of a prior
felony conviction used to enhance the defendant’s sentence, the remedy is
to remand for resentencing and the opportunity to defend against the use
of the conviction. See Benak, 199 Ariz. at 337–38, ¶¶ 18–19. Lee had the
conviction documents before sentencing and the opportunity to defend
against them. So any error regarding the notice provided is harmless.



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