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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 6-4-2019
STATE v. LEE

Decision of the Court

2 

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.
STATE v. LEE

Decision of the Court

3 

¶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). 
STATE v. LEE

Decision of the Court

4 

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.
STATE v. LEE

Decision of the Court

5 

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).
STATE v. LEE

Decision of the Court

6 

¶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 
STATE v. LEE

Decision of the Court

7 

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.

 

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.