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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAWON O. SMITH, Appellant.

No. 1 CA-CR 17-0090

 1 CA-CR 17-0091

 (Consolidated)

Appeal from the Superior Court in Maricopa County

No. CR2013-455082-001

 CR2015-106122-001

The Honorable Michael D. Gordon, Judge

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Arizona Attorney General's Office, Phoenix

By Terry M. Crist

Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix

By Edward F. McGee

Counsel for Appellant

FILED 4-19-2018
STATE v. SMITH

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in 

which Judge Kent E. Cattani and Judge Jennifer M. Perkins joined.

J O H N S E N, Judge:

¶1 Jawon O. Smith appeals the sentences imposed after he was 

convicted of several felonies. For the following reasons, we affirm the 

convictions and resulting sentences except that we vacate and remand the 

sentences imposed on the child-prostitution convictions.

FACTS AND PROCEDURAL BACKGROUND

¶2 Smith was indicted on 13 charges: Sex trafficking of a minor, 

a Class 2 felony; aggravated assault, a Class 3 dangerous felony; and 11 

counts of child prostitution, each a Class 2 felony. The indictment listed the 

date of each of the alleged acts of child prostitution as on or between 

September 1, 2013 and December 18, 2014. After a six-day trial, a jury 

convicted Smith of sex trafficking of a minor, disorderly conduct as a lesserincluded offense of aggravated assault, and four counts of child 

prostitution.

¶3 At sentencing, the court found that Smith had two historical 

prior felony convictions – misconduct involving weapons, a Class 4 felony 

committed on November 15, 2013, and possession of marijuana, a Class 6 

felony committed on April 6, 2009. The court classified all six of the current 

convictions as non-dangerous repetitive felonies and sentenced Smith to 

what the court stated were the statutory minimum terms of incarceration of 

14 years on the sex trafficking conviction, four years for disorderly conduct, 

and 21 years for each of the four counts of child prostitution. The court 

ordered all the sentences to be served consecutively to each other and 

concurrent with the remainder of Smith's sentence on the weapons offense,

for which the court revoked probation and imposed a 1.5-year sentence.

¶4 Smith timely appealed. We have jurisdiction pursuant to 

Article 6, Section 9, of the Arizona Constitution, and Arizona Revised 
STATE v. SMITH

Decision of the Court

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Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018), 13-4031 (2018) and 

-4033(A)(1) (2018).1

DISCUSSION

A. Smith's Sentences as a Category-Three Repetitive Offender.

¶5 The State's original indictment, filed February 13, 2015, did

not allege any prior convictions. In March 2015, the State amended the 

indictment to allege that Smith's marijuana conviction was a "multiple 

offense not committed on the same occasion" but "not a historical prior 

felony." The same day, the State also amended the indictment to allege that 

Smith's weapons conviction was an "historical non dangerous felony 

conviction[]." At Smith's sentencing, the court found that both prior 

convictions were historical prior felony convictions as defined by A.R.S. § 

13-105(22) (2018) and sentenced Smith as a category-three offender to 14 

years' incarceration on the sex trafficking offense and 21 years for each 

count of child prostitution, the minimum sentences for a category-three

offender; and four years on the disorderly conduct offense, one year more 

than the minimum for a category-three offender. See A.R.S. § 13-703(J) 

(2018) (sentences for "category three repetitive offender").

¶6 Under § 13-703(C), "a person shall be sentenced as a category 

three repetitive offender if the person is at least eighteen years of age or has 

been tried as an adult and stands convicted of a felony and has two or more 

historical prior felony convictions." The court may impose enhanced 

sentences under § 13-703, however, only "if an allegation of prior conviction 

is charged in the indictment or information and admitted or found by the 

court." A.R.S. § 13-703(N). Smith contends the superior court erred by 

sentencing him as a category-three offender under § 13-703(C) because the 

indictment alleged just one historical prior felony conviction (the weapons 

conviction), not two. We review this issue for fundamental error because 

Smith did not object at sentencing. See State v. Henderson, 210 Ariz. 561, 567, 

¶ 19 (2005); State v. Curry, 187 Ariz. 623, 632 (App. 1996) (fundamental error 

review when defendant failed to challenge aggravating factor at 

sentencing).

¶7 The State does not dispute that the superior court erred by 

sentencing Smith as a category-three offender when the indictment alleged 

just one historical prior felony conviction. It argues, however, that Smith 

 

1 Absent material revision of a statute or rule after the date of an 

alleged offense, we cite the current version.
STATE v. SMITH

Decision of the Court

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cannot prove he was prejudiced by the error because he had notice that the 

State would seek to use the marijuana conviction to enhance sentences 

imposed for his current convictions. See Henderson, 210 Ariz. at 567, ¶ 20 

("To prevail under [the fundamental error] standard of review, a defendant 

must establish both that fundamental error exists and that the error in his 

case caused him prejudice.").

¶8 Smith argues that under § 13-703(N), "a defendant must be 

informed prior to trial that enhancement of his sentence is possible." To be 

sure, "[a]s a policy matter the defendant should know the full extent of the 

potential punishment that he faces before trial." State v. Rodgers, 134 Ariz. 

296, 306 (App. 1982). A defendant must be fairly forewarned of the State's 

intended use of prior convictions "such that the defendant is not 'misled, 

surprised or deceived in any way by the allegations' of prior convictions." 

State v. Benak, 199 Ariz. 333, 337-38, ¶¶ 15-18 (App. 2001) (quoting State v. 

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

¶9 In support of its contention that Smith is not entitled to have 

his sentences vacated because of the error, the State cites State v. Williams, 

144 Ariz. 433, 442 (1985), in which the superior court erroneously allowed 

the State to amend the indictment's allegations of prior convictions after the 

verdict but before sentencing. See A.R.S. § 13-703(N) (allowing a prior 

conviction to be alleged "at any time before the date the case is actually 

tried" and giving the court discretion to reject amendment only if the 

allegation is within 20 days of trial and the court finds prejudice to the 

defendant). The indictment in Williams had alleged two prior convictions 

for purposes of sentencing enhancement; the tardy amendment substituted 

a third prior conviction for one of the two originally alleged. The supreme 

court did not reverse the sentencing because it concluded the defendant 

"had timely notice of the prosecutor's intent to use prior convictions to seek 

enhanced punishment." 144 Ariz. at 442.

¶10 Here, the State alleged almost 20 months before trial that it 

intended to use Smith's prior marijuana conviction for enhancement 

purposes under § 13-703. Although that amendment characterized the

conviction as not an historical prior felony, it was treated throughout 

Smith's case as if it was. At Smith's settlement conference – more than 15 

months before his trial – the court informed Smith that the marijuana felony 

"count[ed]" for sentencing purposes and he therefore had "two prior 

felonies." The settlement judge told Smith that his two prior felonies 

subjected him to a presumptive sentence of 15.75 years on the sex trafficking 

charge and 11.25 years for the aggravated assault charge – the presumptive 

terms for these offenses for category-three offenders with two prior 
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Decision of the Court

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historical felonies. See A.R.S. § 13-703(J). Moreover, the parties' joint 

pretrial statement stated that Smith had "two historical prior felony 

convictions" and that as a result, he faced a sentencing range for sex 

trafficking and aggravated assault for a person with two historical prior 

felony convictions.

¶11 The State argues that, like the defendant in Williams, Smith 

was on notice that the State would ask the court to sentence him pursuant 

to § 13-703(C). The statute allows a defendant to be sentenced as a repetitive 

offender "if an allegation of [a] prior conviction is charged in the 

indictment." A.R.S. § 13-703(N). We agree that Williams applies here. Both 

the prior convictions on which the court relied in sentencing Smith were 

charged in amendments to the indictment, and, as set out above, Smith

understood that they could render him subject to sentencing as a categorythree offender.

B. Application of Statutory Amendment to Smith's ChildProstitution Sentences.

¶12 At trial, the victim of the prostitution offenses testified but did 

not identify the specific dates of the offenses. Smith asserts that, as a result, 

there was no evidence showing whether the child prostitution offenses of 

which he was convicted occurred before or after an amendment to the 

sentencing statute took effect on July 24, 2014. He argues the court erred by

classifying him as a repetitive offender under the amended version of 

A.R.S. § 13-3212 because the pre-amendment version of the statute allowed 

an enhanced sentence for repetitive offenders only upon proof of a prior 

offense for child prostitution. See A.R.S. § 13-3212(G)(2), (3) (2013) 

(allowing sentencing enhancement as a repetitive offender with one or 

more historical prior felony convictions "for a violation of this section").

¶13 It is undisputed that when he was sentenced, Smith had no 

prior convictions for child prostitution. Accordingly, the State confesses 

error, agreeing that because the dates of his child-prostitution offenses are 

unclear from the record, the court erred by applying the version of § 13-

3212 that took effect on July 24, 2014. The State concedes that Smith must 

be resentenced according to the prior version of that statute. See State v. 

Martinez, 226 Ariz. 221, 224, ¶ 17 (App. 2011) (imposition of an illegal 

sentence is fundamental error).

¶14 Smith argues that because the court imposed minimum 

enhanced sentences for his child-prostitution offenses, the court must 

resentence him to seven years on each child-prostitution offense – the 
STATE v. SMITH

Decision of the Court

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minimum term of incarceration for a first-time child-prostitution offender

under the older version of the statute. See A.R.S. § 13-3212(G)(1) (2013). But 

on remand, the superior court need not choose to impose the minimum 

sentence under the correct sentencing regime. See State v. Osborn, 220 Ariz. 

174, 179, ¶ 14 (App. 2009) ("[T]he guarantee against double jeopardy [does 

not] restrict[] the length of a sentence imposed upon retrial after a 

defendant's successful appeal.") (quoting Monge v. California, 524 U.S. 721, 

730 (1998)).

¶15 Smith also contends that in resentencing him on the childprostitution convictions, the court may not impose an enhanced sentence 

under A.R.S. § 13-703. He contends that "A.R.S. § 13-3212(G) is a special 

sentencing statute that takes precedence over the general sentencing 

statutes treating [] repetitive offenders addressed by the various 

subsections of A.R.S. § 13-703." Our supreme court has held, however, that 

a defendant may be sentenced under the general repetitive offender 

enhancement provisions in § 13-703 even if a more specific repetitive 

offender enhancement such as § 13-3212(G) applies. See State v. Diaz, 224 

Ariz. 322, 324-25, ¶ 16 (2010) ("[A]bsent an express exclusion in a separate 

provision of our statutory sentencing scheme, the State may pursue 

enhanced penalties against a repetitive offender under A.R.S. § 13-703.").

¶16 Smith further argues that, on remand, the court may not 

sentence him as a category-three offender on the child-prostitution charges 

because his prior marijuana conviction had become "stale" as to those 

offenses and therefore did not qualify as an historical prior conviction 

under § 13-703(C). The State concedes that the marijuana conviction does 

not qualify as an historical prior conviction for purposes of sentencing 

Smith for the prostitution offenses because the prostitution offenses may 

have occurred more than five years after the marijuana offense. See A.R.S. 

§ 13-105(22)(c) (2018) (defining "[h]istorical prior felony conviction" as, inter 

alia, "[a]ny class 4, 5 or 6 felony . . . that was committed within the five years 

immediately preceding the date of the present offense").
STATE v. SMITH

Decision of the Court

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CONCLUSION

¶17 For the foregoing reasons, we affirm Smith's convictions and 

the resulting sentences, with the exception of the sentences imposed on the 

four child-prostitution convictions. We vacate those sentences and remand 

for resentencing consistent with this decision.