State v. Martens ( 2017 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    AARON RICHARD MARTENS, Appellant.
    No. 1 CA-CR 16-0531
    FILED 10-3-2017
    Appeal from the Superior Court in Maricopa County
    No. CR2010-005770-001
    The Honorable Joan M. Sinclair, Judge
    REVERSED IN PART; REMANDED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Jason Lewis
    Counsel for Appellee
    Maricopa County Public Defender’s Office, Phoenix
    By Carlos Daniel Carrion
    Counsel for Appellant
    STATE v. MARTENS
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
    which Judge Michael J. Brown and Judge Randall M. Howe joined.
    M c M U R D I E, Judge:
    ¶1            Aaron Richard Martens appeals his convictions and sentences
    for ten counts of sexual exploitation of a minor, all Class 2 felonies and
    dangerous crimes against children. Martens contends the uncertified
    documents presented as proof of his prior military convictions were
    insufficient to support a sentencing enhancement for prior felony
    convictions. Because the uncertified military reports presented as evidence
    of prior convictions were insufficient to support a finding of prior felony
    convictions, we vacate the superior court’s sentences and remand for
    resentencing consistent with this decision.
    FACTS AND PROCEDURAL BACKGROUND
    ¶2            On May 19, 2008, Arizona State University (“ASU”) Police
    Aide Leonard Nasca was in the computer section of the university’s
    downtown campus library when he noticed a computer suspiciously
    canted. He approached the computer from behind and saw a man, later
    identified as Martens, looking at several thumbnail pictures containing
    naked young boys. Nasca stepped away from behind Martens and called
    ASU Police Sergeant Al Phillips. When Phillips arrived he also observed
    Martens viewing pornographic images of young boys. Phillips approached
    Martens, detained him, and called Phoenix Police.
    ¶3             Phoenix Police Officer Lindy Steele responded to Phillips’s
    call and, after interviewing Phillips and Nasca, contacted Detective Michael
    Thorley from the internet crimes against children task force to take over the
    investigation. Thorley arrived at the scene and interviewed Martens.
    During the interview, Martens admitted to having been dishonorably
    discharged from the United States Air Force for possession of child
    pornography.
    ¶4           Thorley contacted Detective David Elting with the Phoenix
    Police Department Forensic Computer Unit, who extracted 190 images of
    child pornography from the ASU computer used by Martens. Thorley
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    STATE v. MARTENS
    Decision of the Court
    reviewed the images and forwarded ten to Dr. Leslie Quinn, a child abuse
    pediatrician, who prepared a report that identified the ages of the boys in
    each image. Based on Dr. Quinn’s report and testimony, the boys’ ages
    ranged from less than seven-years-old to less than 15-years-old.
    ¶5               The State charged Martens with ten counts of sexual
    exploitation of a minor, Class 2 felonies and dangerous crimes against
    children. Before trial, the State alleged Martens had predicate prior felony
    convictions in the military court of the United States Air Force and in the
    United States District Court. At a pretrial hearing, Martens objected to the
    admission of the State’s evidence regarding his prior military convictions,
    arguing the military reports were hearsay, violated Arizona Rule of
    Evidence 403, and violated the Confrontation Clause. The superior court
    admitted the evidence, finding the reports qualified as other-act evidence
    under Arizona Rule of Evidence 404(c) and did not violate the
    Confrontation Clause. Martens waived his right to a jury trial, and was
    found guilty on all charges. The State did not call a law enforcement officer
    to testify regarding Martens’s prior military convictions, nor did Martens
    testify at trial.
    ¶6             At sentencing, Martens again objected to the evidence
    regarding his prior military convictions, but the superior court denied his
    objection and found Martens had two prior felony convictions based on the
    Air Force reports presented. 1 Pursuant to Arizona Revised Statutes
    (“A.R.S.”) section 13-705, Martens received mandatory consecutive life
    sentences on all counts because the two prior felony convictions were also
    dangerous crimes against children. Martens timely appealed and this court
    has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution
    and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1). 2
    1      Martens also objected to his federal court conviction being used as a
    prior felony conviction because the date of the federal offense occurred after
    the events giving rise to the charges in the instant matter. The superior court
    agreed and did not consider the federal court conviction as a prior during
    sentencing. Cf. State v. Thomas, 
    219 Ariz. 127
    , 130, ¶ 9 (2008) (a sentencing
    enhancement based on a historical prior felony conviction requires only the
    conviction, not the commission, to take place before the offense set for
    sentencing).
    2       Absent material revision after the date of an alleged offense, we cite
    to the current version of applicable statutes and rules.
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    STATE v. MARTENS
    Decision of the Court
    DISCUSSION
    ¶7            Martens argues the Air Force reports considered as evidence
    of his prior military felony convictions were not “certified copies” of
    convictions, and were therefore insufficient to prove those felony
    convictions. Martens also argues he could not have admitted to the prior
    felony convictions because he did not give enough information regarding
    the specific details of those convictions during his interview with Detective
    Thorley to satisfy a finding of prior felony convictions. He further argues
    he was not advised of his rights in accordance with Arizona Rule of
    Criminal Procedure 17.6 before admitting to any prior convictions.
    ¶8             A superior court’s determination that a prior felony
    conviction constitutes a prior felony conviction for purposes of sentence
    enhancement is a mixed question of law and fact that this court reviews de
    novo. State v. Rasul, 
    216 Ariz. 491
    , 496, ¶ 20 (App. 2007). 3 This court also
    reviews de novo whether the superior court properly accepted a defendant’s
    admission of prior convictions. State v. Anderson, 
    199 Ariz. 187
    , 194, ¶ 35
    (App. 2000).
    A.    The Evidence was Insufficient to Support a Finding of Prior
    Felony Convictions.
    ¶9            Martens argues the superior court erred by considering Air
    Force reports that were not “certified copies” of prior convictions when
    finding the State had provided sufficient evidence of prior felony
    convictions for purposes of sentence enhancement. We agree.
    ¶10            Under A.R.S. § 13-705, a defendant is subject to an enhanced
    sentence if they have been convicted of prior predicate felonies. A predicate
    felony includes any prior felony which was a dangerous crime against
    children in the first or second degree. A.R.S. § 13-705(P)(2). “Prior
    convictions for sentence enhancement purposes must be established by
    clear and convincing evidence.” State v. Cons, 
    208 Ariz. 409
    , 415, ¶ 15 (App.
    2004). To prove a prior conviction, the State must provide “positive
    identification establishing that the accused is the same person who
    3      The State argues Martens failed to object to the sufficiency of the
    evidence presented regarding his prior felony conviction at trial, and
    therefore this court should review for fundamental error. However,
    Martens objected to the evidence considered both at the pretrial hearing
    and the sentencing hearing. Accordingly, we decline to find the error was
    waived.
    4
    STATE v. MARTENS
    Decision of the Court
    previously was convicted, as well as evidence of the conviction itself.” Cons,
    
    208 Ariz. at 415, ¶ 16
    . “The proper procedure for establishing a prior
    conviction is for the state to submit a certified copy of the conviction and
    establish that the defendant is the person to whom the document refers.”
    
    Id.
     While courts may consider other kinds of evidence, there is a need for
    “reliable documentary evidence.” State v. Robles, 
    213 Ariz. 268
    , 273, ¶¶ 15–
    16 (App. 2006); see also State v. Nash, 
    143 Ariz. 392
    , 403 (1985).
    ¶11           The State introduced evidence of Martens’s previous military
    felony convictions in the form of two uncertified summaries provided by
    the United States Air Force Office of Special Investigations titled “Report of
    Investigation.” The State concedes on appeal that the Air Force reports were
    not certified records of Martens’s prior military convictions, and instead
    claims the superior court relied on a certified copy of a separate felony
    conviction in federal court, which referenced his two prior military
    convictions. However, the certified federal court record only references the
    prior military convictions in an attached affidavit from an FBI investigator,
    and does not contain any evidence that the federal court made a finding
    regarding the military convictions. The federal court record also lacks the
    dates of conviction or any cause numbers for those military convictions.
    Furthermore, while the superior court did rely on the certified federal court
    documentation in its Rule 404 findings, the court specifically excluded the
    federal court conviction as a prior felony conviction at sentencing.
    ¶12            The State also argues the uncertified Air Force reports should
    be sufficient evidence of the prior felony convictions because they contain
    Martens’s name, date of birth, and social security number. In support, the
    State cites to various cases where other evidence besides a certified record
    of a conviction was sufficient to support a finding of a prior felony
    conviction. However, the alternative documentation provided in those
    cases was still certified. See State v. Van Adams, 
    194 Ariz. 408
    , 419, ¶ 37 (1999)
    (certified copies of a California disposition of arrest); State v. White, 
    160 Ariz. 24
    , 28 (1989) (certified copies of a plea agreement signed by the defendant
    and docket sheets indicating the agreement was filed in court); Nash, 
    143 Ariz. at 403
     (certified commitment records from other states); State v. Baca,
    
    102 Ariz. 83
    , 87 (1967) (certified records of commitment); In re C.D., 
    240 Ariz. 239
    , 242, ¶ 14 (App. 2016) (certified minute entries); Robles, 213 Ariz.
    at 273, ¶ 17 (certified copies of DOC documents); Cons, 
    208 Ariz. at 415, ¶ 17
    (certified copies of convictions).
    ¶13           The documents presented to the superior court at sentencing
    were not certified, lacked any fingerprints or photographs of Martens, and
    all the names besides Martens’s had been redacted. The uncertified Air
    5
    STATE v. MARTENS
    Decision of the Court
    Force reports relied upon by the superior court were insufficient to find
    prior felony convictions for purposes of enhancing Martens’s sentences. See
    Cons, 
    208 Ariz. at 415, ¶ 16
     (“[T]he state must submit positive identification
    establishing that the accused is the same person who previously was
    convicted, as well as evidence of the conviction itself.”). 4
    B.     Martens’s Statements to Detective Thorley Were Insufficient to
    Qualify as an Admission of Prior Felony Convictions.
    ¶14           The State contends that even if the Air Force reports were not
    sufficient evidence to prove Martens’s prior felony convictions, Martens
    admitted to the prior felony convictions in a pretrial interview with
    Detective Thorley. We disagree.
    ¶15           Rule 17.6 provides that “whenever a prior conviction is
    charged, an admission thereto by the defendant shall be accepted only
    under the procedures of [Rule 17].” Ariz. R. Crim. P. 17.6. The procedures
    of Rule 17 require the court to address the defendant in open court and
    inform him or her of the nature and range of possible sentences which
    might result from the admission and the constitutional rights the defendant
    foregoes by making the admission. See Ariz. R. Crim. P. 17.2; State v.
    Morales, 
    215 Ariz. 59
    , 61, ¶ 9 (2007).
    ¶16            The State concedes that Martens was not given the
    advisement required for a formal admission of prior convictions under Rule
    17, but instead argues that the superior court could have found the prior
    convictions based on the pretrial interview conducted by Detective Thorley.
    See State v. Whitney, 
    159 Ariz. 476
    , 485 (1989) (an exception to the
    requirements of Rule 17 applies where the defendant admits to prior felony
    convictions at trial). However, this exception requires admission of the
    prior convictions “during [the defendant’s] testimony at trial.” 
    Id.
     (emphasis
    added); see also Ariz. R. Crim. P. 17.6 (exception requires defendant to admit
    the prior conviction “while testifying on the stand”). Martens made his
    4       The superior court found the Air Force reports were sufficient for a
    finding that Martens had committed other acts under Arizona Rule of
    Evidence 404(c). Importantly, the requirements for a finding under Rule
    404(c) and a sentence enhancement under A.R.S. § 13-705 are not the same.
    While Rule 404(c) requires evidence that the defendant committed the
    previous act, § 13-705 requires evidence of a prior conviction. Compare A.R.S.
    § 13-705, with State v. Goudeau, 
    239 Ariz. 421
    , 450, ¶ 96 (2016) (requirements
    for introducing other-act evidence). Therefore, the Rule 404(c) finding is not
    enough, by itself, for a finding of prior felony convictions.
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    STATE v. MARTENS
    Decision of the Court
    admissions during a pretrial interview with police where he was not under
    oath, represented by counsel, or subject to cross-examination. Thus, the
    exception is not applicable.
    ¶17           Finally, the superior court made no reference to Martens’s
    pretrial admission at the sentencing hearing, and only relied on the Air
    Force reports when finding the two prior felony convictions. Accordingly,
    Martens did not admit to the prior felony convictions used to enhance his
    sentence in accordance with Rule 17, and therefore his admission cannot be
    accepted.
    CONCLUSION
    ¶18           The superior court erred by finding uncertified Air Force
    investigation reports introduced by the State to be sufficient evidence of
    Martens’s prior felony convictions. Therefore, we vacate Martens’s
    sentences and remand for resentencing in accordance with this decision.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    7