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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KENNETH SANDERS, Appellant.

No. 1 CA-CR 20-0110

Appeal from the Superior Court in Maricopa County

No. CR 2019-006543-001

The Honorable Joseph P. Mikitish, Judge

AFFIRMED 

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jennifer L. Holder

Counsel for Appellee

Maricopa County Public Defender, Phoenix

By Thomas K. Baird

Counsel for Appellant

FILED 03-25-2021
STATE v. SANDERS

Decision of the Court

2

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which 

Presiding Judge D. Steven Williams and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

¶1 The superior court sentenced Kenneth Sanders as a categorythree repetitive offender after he was convicted on five felony counts. The 

State failed to allege historical prior felony convictions as a sentence 

enhancement before trial, as required by A.R.S. § 13-703(N) (“Section 

703(N)”). However, Sanders received actual notice before trial of the State’s 

intention to seek enhanced sentences. For the following reasons, we affirm 

the convictions and sentences.

BACKGROUND

¶2 The State charged Sanders with eight felony and 

misdemeanor counts, which were tried to a jury. Before trial, the State filed 

an amendment to the indictment alleging aggravating factors and historical

prior felony convictions as sentence enhancements. The trial resulted in a 

mistrial.

¶3 The State then filed a complaint alleging ten counts, including

seven felony and three misdemeanor charges committed on four separate 

dates of offense. The resulting indictment alleged Sanders, if convicted,

would be sentenced under A.R.S. §§ 13-701 and -702, sentencing statutes 

applicable to non-repetitive offenders. Unlike in the first case, the State 

failed to amend the indictment before trial to allege prior convictions or 

aggravating circumstances. During the second trial, the first case was 

dismissed without prejudice. 

¶4 At the conclusion of the second trial, the jury acquitted 

Sanders of one felony count, but returned guilty verdicts on the remaining 

nine counts. Following the return of the verdicts, the superior court noted

it had just received the State’s request to amend the indictment to allege 

prior felony convictions as well as its request to allege aggravating 

circumstances. Without objection, the court proceeded to conduct a trial on 

the aggravating circumstances, and the jury found four aggravating factors 

beyond a reasonable doubt.
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¶5 The superior court then held a hearing on Sanders’ prior 

felony convictions. Again, Sanders did not object. The State proved two 

historical prior felony convictions by clear and convincing evidence.1 The 

court sentenced Sanders to presumptive concurrent terms as a categorythree repetitive offender on each felony, with the exception of count 2, for 

which the court imposed a suspended sentence with a lifetime term of 

probation.2 The concurrent sentences range from 3.75 to 11.25 years. If 

Sanders had been sentenced as a non-repetitive offender, the presumptive 

sentences would have ranged from 1.5 to 3.5 years. A.R.S. § 13-702(D). 

Sanders filed a timely appeal. He does not challenge his convictions but 

argues his sentences are illegal. 

DISCUSSION

¶6 For the first time on appeal, Sanders argues that the superior 

court imposed an illegal sentence by sentencing him as a repetitive 

offender. He contends that because the State failed to amend the indictment 

to allege historical prior felony convictions before trial began, the court 

lacked authority to impose enhanced sentences. See A.R.S. § 13-703(N). The 

legality of a sentence, including “[w]hether the trial court applied the 

correct sentencing statute,” State v. Hollenback, 212 Ariz. 12, 16, ¶ 12 (App. 

2005), is a question of law, which we review de novo, State v. Johnson, 210 

Ariz. 438, 440, ¶ 8 (App. 2005). Because Sanders did not raise this issue to 

the superior court, we review only for fundamental, prejudicial error. State 

v. Escalante, 245 Ariz. 135, 140, 146, ¶¶ 12, 43 (2018) (reversing convictions 

and sentences on charges where fundamental error prejudiced defendant 

but affirming remaining counts where defendant was not prejudiced by the 

error). 

¶7 In Arizona, a defendant may be sentenced as a repetitive 

offender pursuant to A.R.S. § 13-703(C) only if “an allegation of prior 

conviction is charged in the indictment or information.” A.R.S. § 13-703(N). 

The allegation must be filed no later than 20 days before trial, Ariz. R. Crim. 

P. 13.5(a) and 16.1(b), and “may not be alleged after the verdict is returned,”

State v. Williams, 144 Ariz. 433, 442 (1985); see also State v. Benak, 199 Ariz. 

1 We view the evidence in the light most favorable to sustaining the 

court’s ruling. In re John M., 201 Ariz. 424, 426, ¶ 7 (App. 2001).

2 The State asked that the prior felony convictions not be applied to 

count 2, which would allow Sanders to be placed on probation following 

his prison sentence. Sanders again did not object, nor does he challenge the 

imposition of probation.
STATE v. SANDERS

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333, 337, ¶ 14 (App. 2001) (“[F]undamental fairness and due process require 

that allegations that would enhance a sentence be made before trial so that 

the defendant can evaluate his options.”).

¶8 Under Williams, however, strict compliance with Section 

703(N) is not required if the defendant has adequate notice, before trial, that 

the State will ask the court to impose an enhanced sentence based on prior 

convictions or aggravating circumstances. 144 Ariz. at 442. This is because

“a defendant is not prejudiced by noncompliance with A.R.S. § 13–604(K) 

[now Section 703(N)] provided he is on notice before trial that the 

prosecution intends to seek the enhanced punishment provisions of the 

statute.” Id. The pretrial notice to the defendant, however, must be adequate 

to inform him “of the charge of an allegation of prior convictions, so as not 

to be misled, surprised or deceived in any way by the allegations.” State v. 

Bayliss, 146 Ariz. 218, 219 (App. 1985).

¶9 There is no dispute that the State failed to strictly comply with

Section 703(N). The State, however, argues it gave Sanders adequate notice 

under Williams that it intended to ask the court to impose enhanced

sentences based on aggravating circumstances and his historical prior 

felony convictions.

¶10 First, long before trial, the State filed a disclosure statement 

notifying Sanders it “intend[ed] to use [his] prior felony convictions as 

aggravating circumstances pursuant to A.R.S. § 13-701 and for sentence 

enhancement under § 13-703 and § 13-704.” In his notice of defenses, 

Sanders responded that he intended to challenge the sufficiency of the prior 

convictions, illustrating that he knew of the State’s intention to allege 

historical prior felony convictions as sentencing enhancers.

¶11 Second, in the parties’ final joint pretrial statement, they

agreed that, if convicted, Sanders would be sentenced as a category-three 

repetitive offender under A.R.S. § 13-703(J). Although the pretrial statement 

did not specify whether Sanders faced sentencing as a repetitive offender 

due to historical prior felony convictions or because the indictment alleged 

felonies on four separate dates of offense, Sanders was plainly on notice that 

he could be subject to enhanced sentences as a repetitive offender under 

A.R.S. § 13-703. 

¶12 Third, more than three weeks before trial, the State attempted 

to amend the indictment to allege sentencing enhancements pursuant to 

§ 13-703(C) and (N). Although the superior court’s e-filing system rejected 

the filing, the State emailed Sanders’ counsel notice of the proposed 
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amendment, and Sanders’ counsel acknowledged to the court that he 

received the State’s intended filings. 

¶13 The State’s pretrial actions, viewed collectively, gave Sanders 

adequate notice of the specific grounds on which it would ask the court to 

impose enhanced sentences under § 13-703 based on both prior felony 

convictions and aggravating circumstances. See State v. Jobe, 157 Ariz. 328, 

330 (App. 1988) (holding State’s failure to formally file all operative 

pleadings was harmless error because defendant had actual, 

constitutionally adequate notice prior to trial); State v. Whitney, 159 Ariz. 

476, 481 (1989) (finding no error when State’s allegation of the dangerous 

nature of the offense was untimely but defendant had notice based on the 

nature of the crime alleged); but see Benak, 199 Ariz. at 337–38, ¶¶ 16–19

(remanding for resentencing when State failed to refer to the relevant 

sentencing statute or mention “violent crime” in asking the court to rule 

defendant ineligible for probation based on a previous violent crime 

conviction).

¶14 Sanders’ knowledge of the State’s intentions is also illustrated 

by the fact he did not object when the superior court proceeded to address 

his historical prior felony convictions. In contrast, Sanders did object when 

the State raised that he was on probation, an aggravating circumstance,

because “it [was] not filed as an allegation of an aggravating circumstance.” 

The fact that Sanders raised that objection but did not object to the use of 

historical prior felony convictions or the other alleged aggravating 

circumstances further verifies he had actual notice of the State’s intentions. 

¶15 Because Sanders had actual notice of the State’s intention to 

seek enhancement of his sentences under Section 13-703(N) (formerly 

A.R.S. § 13–604(K)), the enhanced sentences were not illegal. Accordingly,

Sanders has failed to demonstrate that the superior court committed 

fundamental, prejudicial error. Escalante, 245 Ariz. at 142, ¶ 21. 
STATE v. SANDERS

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CONCLUSION

¶16 For the foregoing reasons, we affirm Sanders’ convictions and 

sentences on all counts.