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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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 Lawrence S. Matthew

Counsel for Appellant

FILED 8-2-2022
STATE 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 Mendivil appeals his sentences for two drug offenses, 

arguing he was improperly sentenced as a Category 3 repetitive 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 Mendivil with one count of possession or 

use of dangerous drugs and one count of possession of drug paraphernalia

(the present offenses). The State also alleged aggravating circumstances and 

that Mendivil had historical prior felony convictions and committed the 

present offenses while on release from confinement. 

¶3 A jury convicted Mendivil 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] in 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 (conviction 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 (conviction 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, asking

whether he admitted both his parole status and his three prior felony 

convictions. After Mendivil agreed to the stipulation, the superior court 

questioned him to ensure that he knowingly, voluntarily, and intelligently 
STATE 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 (requiring 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.” The 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 them “excessive” and expressly 

authorized 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 the superior court to enhance his sentences did 

not qualify as “historical prior felony convictions.” While he does not 

contest the classification of his 2017 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 June 2, 2019. According to Mendivil, 

neither 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 

repetitive 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 fundamental error. State v.

Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). To prevail under fundamental 

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 convictions.” 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 

committed 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 exists. 

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 defendant 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 sentence.” 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. See 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 

sentencing hearing.” Id. Such an approach is inconsistent with wellestablished 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 remain 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 between 
STATE 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 terms of 

imprisonment for each 2014 conviction and incarcerated from December 26, 

2013 to August 19, 2014, a total period of 236 days, exceeding the 194 and 

158 days necessary to bring the 2013 possession 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.gov/public-resources/inmatedatasearch (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 forfeiture 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 omitted), 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 convictions 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 on 
STATE v. MENDIVIL

Decision of the Court

6

April 2, 2016. See State v. Christian, 205 Ariz. 64, 67, ¶ 8 n.8 (2003) (“For an 

offense to qualify as a ‘third or more prior felony conviction’ it must be the 

third conviction chronologically.”) (citation omitted). 

¶16 To support its allegations, the 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 had the trial proceeded 

to the aggravation phase. See State 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.”); see 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.