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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Appellee
,

v.

JOHNNY LEE MENDIVIL
, Appellant

.
No. 1 CA

- CR 21

- 0291

Appeal from the Superior Court in Maricopa County

No. CR 2019

- 125606

- 001 The Honorable Howard D. Sukenic
, Judge

AFFIRMED

COUNSEL
Arizona Attorney General’s Office
, Phoenix By Alice Jones Counsel for Appellee

Maricopa County Public Defender’s Office
, Phoenix By Lawre nce S. Matthew C ounsel for Appellant FILED 8-2-2022STATE v. MENDIVIL Decision of the Court

2 MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.

C A M P B E L L , Judge:

¶1 Johnny Me n divil appeals his sentences for two drug offenses
, arguing he was improperly sentenced as a Category 3 repetit ive offender. Because he did not raise this claim in the superior court, and the record supports the superior court’s finding that he has at least two historical prior felony convictions , we affirm

.
BACKGROUND

¶2 The State charged Me n divil with one count of p ossession or use of dangerous drugs and one count of possession of drug paraphernalia (the present offenses)

. The State also alleged aggravat ing circumstances and that Mendivil had historical prior felon y convictions and committed the present offenses while on release from confinement

. ¶3 A jury convicted Me n divil as charged. After the jury rendered its verdict , the parties stipulated that Mendivil was on parole at the time of the present offenses and had “at least three prior felony convictions

. . . plac [ ing ] [ him ] i n Category 3.” Specifically, the prosecutor referenced the following prior convictions: (1) Cause No. CR 2016

- 115393

- 002, possession of a dangerous drug, a class 4 felony, committed on April 2, 2016 (conviction on April 18, 2017 ) ; (2 ) Cause No. CR 2013

- 455711

- 001, possession of drug paraphernalia, a class 6 felony, committed on November 20, 2013 ( convict ion on May 5, 2014 ) ; and (3) Cause No. CR 2013

- 461684

- 001 , possession of drug paraphernalia, a class 6 felony, committed on December 26, 2013 ( convict ion on May 5, 2014 )

. ¶4 Before accepting the parties’ stipulation, the superior court asked defense counsel whether he agreed with its terms, as presented by the prosecutor , and defense counsel expressly stated that both he and his client “ agree[d].” The court then addressed Mendivil directly
, ask ing whether he admitted both his parole status and his three prior felony convictions. After Mendivil agreed to the stipulation , t he superior court
qu estioned him to ensure that he knowingly, voluntarily, and intelligentlySTATE v. MENDIVIL Decision of the Court

3 made the admissions

. See Ariz. R. Crim. P. 17. 1 (b) ( “A court may accept a plea of guilty or no contest only if the defendant enters the plea voluntarily and intelligently.” ); see also Ariz. R. Crim. P. 17. 6 ( requi ring a court to ensure that a defendant’s stipulated admission to an allegation of a prior conviction is voluntarily and intelligently made). Upon completing the colloquy, the superior court accepted the parties ’ stipulation , dispensed with the aggravation phase of the trial, and discharged the jury

. ¶5 At sentencing, the superior court reviewed the parties’ stipulation with the prosecutor, who confirmed that Mendivil had “admitted to three priors, and that he was on parole.” T he court , without objection, then deemed Mendivil a Category 3 repetitive offender and imposed the corresponding mandatory minimum terms of imprisonment, totaling ten years

. See A.R.S. § § 13

- 703(C) , (J) ;
– 708(A)

. In pronouncing the
sentences , the court remarked that it found the m “excessive” and expressly author ized Mendivil to petition the Board of Clemency for commutation of his sentences

.
DISCUSSION

¶6 On appeal, Mendivil argues for the first time that two prior felony convictions used by t he superior court to enhance his sentence s did not qualify as “historical prior felony convictions

. ” While he does not contest the c lassifi cation of his 201 7 conviction for possession of a dangerous drug, committed on April 2, 2016, as a “historical prior felony conviction,” he contends his 2014 convictions for possession of drug paraphernalia, committed on November 20 and December 26, 2013 , do not qualify because he committed those offenses more than five years before he committed the present offenses on J une 2, 2019

. According to Mendivil,

ne ither the parties’ stipulation nor any evidence “supports a finding that [he] had more than one allegeable historical felony conviction
, ” and therefore the superior court erred by sentencing him as a Category 3 repetit ive offender.

¶7 Because Mendivil did not argue in the superior court that his 2013 drug offenses were too remote in time to qualify as historical prior felony convictions, we review this issue only for fu ndamental error. State v. Henderson , 210 Ariz. 561, 567, ¶ 19 (2005)

. To prevail under fundam ental error review, Mendivil must establish both that fundamental error exists and that the error caused him prejudice. Id . at ¶ 20. Fundamental error goes to the foundation of the case, deprives the defendant of a right essential to his defense, or is of such magnitude that the defendant could not possibly have received a fair trial. State v. Escalante , 245 Ariz. 135, 142, ¶ 21 (2018).STATE v. MENDIVIL Decision of the Court

4 “The improper use of a conviction as a historical prior felony conviction for enhancement purposes constitutes fundamental error.” State v. Avila , 217 Ariz. 97, 99, ¶ 8 (App. 2007).

¶8 Under A.R.S. § 13

- 703(C), “a person shall be sentenced as a category three repetitive offender if the person . . . stands convicted of a felony and has two or more historical prior felony convict ions.” As defined by A.R.S. § 13

- 105(22)(c), any class 6 felony “that was committed within the five years immediately preceding the date of the present offense” qualifies as a “ [ h ] istorical prior felony conviction.” To calculate whether a felony was commit ted within the preceding five years for purposes of the statute, any time the defendant spent incarcerated “ is excluded. ” Id

. ¶9 Before enhancing a defendant’s sentence with a prior conviction, a court must find that a historical prior felony conviction exis ts. State v. Morales , 215 Ariz. 59, 61, ¶ 6 (2007). Most commonly, the State establishes the existence of a historical prior felony conviction by presenting a certified copy of the conviction at an evidentiary hearing, but no hearing is required if the def endant admits to the prior conviction. See id . at ¶¶ 6

- 7. A defendant’s admission or stipulation “ eliminate [s] the need for formal proof of the prior conviction by the [S]tate, waive [s] the defendant’s constitutional rights, and result [s] in an enhanced se ntence.” Id . at ¶ 9.

¶10 As stated, Mendivil committed the present offenses on June 2, 2019 and the underlying offenses for the challenged 2014 convictions on November 20 and December 26, 2013, a difference of 5 years and 194 days and 5 years and 158 days, respectively. On appeal, Mendivil asserts that the State failed to prove that he was incarcerated for sufficient time to bring the 2014 convictions within the statutory five

- year requirement. S ee Avila , 217 Ariz. at 99, ¶ 10.

¶11 If we adopt Mendivil’s proposed “formulation of the issue as the proper inquiry on appeal of a claim forfeited at trial, our review would be no different than had [he] contested the sufficiency of the evidence at the
sente ncing hearing.” Id

. Such an approach is inconsistent with well

established caselaw governing fundamental error review. As made clear by

our supreme court, “the burden of persuasion borne by a defendant in fundamental error review does not permit him to rem ain silent at trial and reserve the ‘hole card’ of a later appeal on a matter that was curable at trial.” Id . at 100, ¶ 12 (citing Henderson , 210 Ariz. at 567, ¶ 19) . Accordingly , on fundamental error review, a defendant challenging the classification of a conviction as a historical prior felony conviction “needs to demonstrate that, excluding the amount of time for which he was incarcerated betweenSTATE v. MENDIVIL Decision of the Court

5 the commission of [ the underlying offenses for the challenged convictions ] and the commission of the current offenses, [the underlying offenses were ] not committed within the five years preceding the current offenses.” Id . at 99, ¶ 10.

¶12 Applying the five

- year requirement of A.R.S. § 13

- 105(22)(c) to this case
, the 2014 drug paraphernalia convictions do not qualify as historical prior felony convictions unless Mendivil was incarcerated for at least 194 and 158 days, respectively , during the intervening period

. We take judicial notice that Mendivil was sentenced to one

- year term s of imprisonment for each 2014 conviction and incarcerated from December 26, 2013 to August 19, 2014, a total period of 236 days , exceed ing the 194 and 158 days necessary to bring the 2013 posse ssion of drug paraphernalia offenses within the five years preceding the present June 2019 offenses for purposes of the statute . Arizona Department of Corrections Rehabilitation & Reentry
, https://corrections.az.g ov /public

- resources/inmate

datasearch (last visited July 19 , 2022). See In re Sabino R. , 198 Ariz. 424, 425, ¶ 4 (App. 2000) (noting appellate court may “take judicial notice of anything of which the [superior] court could take notice ” ).

¶13 Although Mendivil objects to this court taking judicial notice of the Arizona Department of Corrections’ records, asserting generally that the Department’s “records are often wrong,” he raises no specific challenge to the information at issue here. Given Mendivil’s forfeitu re of any challenge in the superior court, “the State is not required to disprove on appeal the possibility that [ Mendivil ] was incarcerated for less than the requisite amount of time

. ” Avila , 217 Ariz. at 100, ¶ 12.

¶14 Finally, as noted by the State, “[t]wo of Mendivil’s felonies are ‘forever’ historical priors
, ” so he qualifies as “ a category three offender even without accounting for the tolling [ of time ] from his incarceration.” Under A.R.S. § 13

- 105(22)(d), “[a]ny felony conviction that is a third or more prior felony conviction” qualifies as a “ [ h ] istorical prior felony conviction.” Such a conviction “can be used to enhance a later sentence, regardless of passage of time,” State v. Johnson , 240 Ariz. 402, 404, ¶ 9 (App. 2016) (quotation and citation o mitted), except that “[c]onvictions for two or more offenses committed on the same occasion shall be counted as only one conviction.” A.R.S. § 13

- 703(L).

¶15 In this case, the State alleged that Mendivil committed eight felonies on four dates. Taking the con victions chronologically, Mendivil’s third and fourth felony prior convictions are CR 2013

- 461684

- 001, committed on December 26, 2013
, and CR 2016

- 115393

- 002, committed onSTATE v. MENDIVIL Decision of the Court

6 April 2, 2016. See State v. Christian , 205 Ariz. 64, 67 , ¶ 8 n.8 (2003) (“For an off ense to qualify as a ‘third or more prior felony conviction’ it must be the third conviction chronologically.” ) (citation omitted ).

¶16 T o support its allegations, t he State submitted a presentence report containing a detailed criminal history, including the dates of the prior felony convictions and the corresponding dates of commission , but Mendivil did not object to the superior court’s consideration of the presentence report or its contents

. See Ariz. R. Crim. P. 26.8 (b) (permitting a party to object to the contents of a presentence report)

. Likewise, on appeal, Mendivil does not suggest that the presentence report is inaccurate, deny that he was convicted of the felonies at issue, or assert that the State would have been unable to prove those convictions ha d the trial proceeded to the aggravation phase

. S ee S tate v. Gonzales , 233 Ariz. 455, 458, ¶ 11 (App. 2013) ( “A defendant who fails to object to the contents of a presentence report has waived objections as to the accuracy and completeness of the report.” ) ; s ee also State v. Miller , 215 Ariz. 40, 44, ¶ 13 (App. 2007)

. Accordingly, Mendivil has not shown that the superior court committed fundamental, prejudicial error by sentencing him as a Category 3 offender

.
CONCLUSION

¶17 For the foregoing reasons, we affirm.