State v. Warner ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
BRIAN MICHAEL WARNER, Appellant.
No. 1 CA-CR 22-0353
FILED 5-9-2023
Appeal from the Superior Court in Yavapai County
Nos. V1300CR202080222, V1300CR202080220
The Honorable Michael R. Bluff, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Rebecca Jones
Counsel for Appellee
Law Office of Stephen L. Duncan P.L.C., Scottsdale
By Stephen L. Duncan
Counsel for Appellant
STATE v. WARNER
Decision of the Court
MEMORANDUM DECISION
Vice Chief Judge David B. Gass delivered the decision of the court, in which
Judge Brian Y. Furuya and Judge Andrew M. Jacobs joined.
G A S S, Vice Chief Judge:
¶1 This case arises from Brian Michael Warner’s four convictions
for drug-related crimes arising out of two separate searches on the same
day, one at a hotel and one following a traffic stop. Warner appeals his
sentences for the two traffic-stop convictions, arguing the State did not
properly allege his prior felony convictions for sentencing enhancement
purposes. Finding no error, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court reviews the facts in the light most favorable to
affirming the verdicts and resolves all reasonable inferences against
Warner. See State v. Felix, 237 Ariz. 280, 283 ¶ 2 (App. 2015).
¶3 On March 11, 2020, after Warner checked out from a hotel
room, a housekeeper reported finding a clear bag containing a white
substance on the nightstand. A deputy responded and collected the white
substance, which tested positive for methamphetamine. Around the same
time, another deputy stopped Warner and his girlfriend after Warner
committed two traffic violations. After Warner consented to a search of his
vehicle, a deputy found drug paraphernalia, a scale, and bags of
methamphetamine.
¶4 Deputies arrested Warner and filed two complaints against
him in the justice court. In the hotel case, the State filed a complaint for one
count of possession of dangerous drugs for sale and one count of possession
of drug paraphernalia. In the traffic-stop case, the State filed a complaint
for one count of sale or transportation of dangerous drugs and one count of
possession of drug paraphernalia. In both cases, the State filed notices
alleging Warner’s prior felony convictions constituted aggravating
circumstances. In the traffic-stop case, the State also filed a notice alleging
Warner was a category three offender because of his prior felony
convictions. In the hotel case, the State filed no such allegations.
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STATE v. WARNER
Decision of the Court
¶5 After finding probable cause on all the counts, the superior
court transmitted and consolidated them. The superior court received the
entire justice court record, including the State’s various allegations
regarding Warner’s prior felony convictions.
¶6 The superior court held a three-day jury trial. On the hotel
counts, the jury convicted Warner as charged for the paraphernalia count
but convicted him of the lesser-included offense of possession or use of
methamphetamine instead of possession of methamphetamine for sale. See
A.R.S. § 13-3407.A.1. On the traffic-stop counts, the jury convicted Warner
as charged for both counts.
¶7 Though it consolidated the two cases, the superior court
considered separately the State’s notices on the hotel and the traffic-stop
counts. The superior court found the State provided proper notice of prior
convictions in both cases for aggravation purposes, but only alleged them
for enhanced sentencing purposes in the traffic-stop case. The State does
not challenge those findings.
¶8 Before sentencing, the superior court held a bench trial and
found the State proved the prior convictions. Because Warner’s prior
convictions occurred more than ten years before the current offenses, the
superior court found they were not aggravating circumstances. See A.R.S.
§ 13-701.D.11. For the traffic-stop counts only, the superior court found
Warner’s prior convictions made him a category three repetitive offender
under A.R.S. § 13-703.J.
¶9 The superior court imposed concurrent, slightly mitigated
sentences for all the convictions. For the hotel counts, the superior court
sentenced Warner as a category 1 nonrepetitive offender and imposed a 2-
year sentence for the possession or use of methamphetamine count and a
.75-year sentence for the possession of methamphetamine-related
paraphernalia count. See A.R.S. § 13-702.D. For the traffic-stop counts, the
superior court sentenced Warner as a category 3 repetitive offender and
imposed a 15-year sentence for the sale or transportation of
methamphetamine count and a 3.5-year sentence for the possession of
methamphetamine-related paraphernalia count. See A.R.S. §§ 13-703.C, .J.
The superior court awarded Warner 120 days of presentence credit.
¶10 This court has jurisdiction over Warner’s timely appeal under
article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031 and
-4033.A.1.
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STATE v. WARNER
Decision of the Court
ANALYSIS
¶11 Warner argues the superior court erred when it sentenced
him as a category three offender on the traffic-stop counts because the State
did not file a proper notice. Specifically, Warner contends the State’s
allegations of prior convictions were untimely and the State should have
refiled the allegations when the superior court consolidated the cases.
Warner relies on Rules 13.5 and 16.1(b) of the Arizona Rules of Criminal
Procedure.
¶12 The parties treated the sufficiency of the State’s filing of the
allegations as an issue arising under and driven by Rules 13.5 and 16.1. Rule
13.5 allows the State to, “[w]ithin the time limits of Rule 16.1(b), . . . amend
an indictment, information, or complaint to add allegations of one or more
prior convictions.” Rule 16.1(b) requires parties make such amendments
“no later than 20 days before trial.”
¶13 The State complied with Rules 13.5 and 16.1(b). About two
years before the trial, the State filed its allegations of prior felony
convictions in the justice court, the justice court transmitted its entire record
to the superior court, and the State included the list of allegations in several
disclosures. With those filings, the State also provided actual notice.
¶14 Warner argues the justice court’s transmittal alone was
insufficient notice, but the State provided that initial notice and several
other notices well within Rule 16.1(b)’s time limits. Warner also contends,
without authority, the State must file a new notice of prior convictions after
the justice court transmits the case to the superior court. We find no
authority to support this premise.
¶15 Though we address the parties’ Rule-based arguments, we
also must consider the controlling statute, A.R.S. § 13-703.N. Subsection 13-
703.N’s plain language requires the court to consider the State’s allegations
as long as the State filed them more than 20 days before trial. The State did
so.
¶16 Warner’s position, thus, fails under both the appurtenant
rules and, most importantly, the controlling statute. See State v. Hansen, 215
Ariz. 287, 289 ¶ 7 (2007) (expressing policy of harmonizing statutes and
rules whenever possible).
¶17 Lastly, Warner argues the superior court violated his Sixth
Amendment right to actual notice and his right against double jeopardy
when it considered his prior convictions. True, the State must provide
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STATE v. WARNER
Decision of the Court
actual notice of allegations of prior felonies. State v. Bayliss, 146 Ariz. 218,
219 (App. 1985). And as outlined above, the State gave actual notice several
times. We find no error.
CONCLUSION
¶18 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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