State v. Pearsall ( 2022 )


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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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    ROBERT DAVID PEARSALL, Appellant.
    No. 1 CA-CR 21-0398
    FILED 3-10-2022
    Appeal from the Superior Court in Yavapai County
    No. P1300CR201801375
    The Honorable Tina R. Ainley, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Deborah Celeste Kinney
    Counsel for Appellee
    Law Office of Nicole Countryman, Phoenix
    By Nicole Countryman
    Counsel for Appellant
    STATE v. PEARSALL
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
    which Judge Peter B. Swann and Judge D. Steven Williams joined.
    B A I L E Y, Judge:
    ¶1           Pearsall appeals his sentence, arguing the superior court erred
    in finding he had historical prior felony convictions. For the following
    reasons, we affirm.
    FACTS AND PROCEDURAL HISTORY
    ¶2            After a jury trial, Pearsall was convicted of attempted first-
    degree murder and two counts of aggravated assault. At sentencing, the
    State alleged Pearsall had three historical prior felony convictions and
    submitted certified court records for three prior cases and a Department of
    Corrections (“DOC”) packet listing Pearsall’s name, date of birth, social
    security number, photograph, and conviction record. Defense counsel did
    not object and the court admitted the exhibit.
    ¶3            The superior court found the evidence supported the State’s
    allegation of historical prior felony convictions and sentenced Pearsall as a
    category three repetitive offender. See Ariz. Rev. Stat. (“A.R.S.”) § 13-703(C).
    The court sentenced Pearsall to three concurrent prison terms, the longest
    of which was 28 years.
    ¶4            We have jurisdiction over Pearsall’s timely appeal under
    Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-
    120.21(A)(1), 13-4031 and 13-4033(A)(4).
    DISCUSSION
    ¶5             Pearsall challenges the court’s finding that he is the person to
    whom the conviction records refer. We review the superior court’s finding
    of a historical prior felony conviction de novo. State v. Rasul, 
    216 Ariz. 491
    ,
    496, ¶ 20 (App. 2007). Because Pearsall did not object to the State’s
    evidence, we review for fundamental error. See State v. Gendron, 
    168 Ariz. 153
    , 154 (1991) (holding that the failure to raise an objection in the superior
    court waives all but fundamental error review). Imposition of an illegal
    sentence, however, is always fundamental error. State v. Thues, 
    203 Ariz. 2
    STATE v. PEARSALL
    Decision of the Court
    339, 350, ¶ 4 (App. 2002) (citation omitted). Thus, if the court erroneously
    enhanced Pearsall’s sentence, we must vacate his sentence. 
    Id.
    ¶6            The State must prove a prior conviction by clear and
    convincing evidence and admit “positive identification establishing that the
    accused is the same person who previously was convicted, as well as
    evidence of the conviction itself.” State v. Cons, 
    208 Ariz. 409
    , 415, ¶¶ 15-16
    (App. 2004) (citation omitted). The proper procedure is for the State to offer
    a certified copy of the prior conviction and establish that the defendant is
    the person to whom the document refers. Id. at ¶ 16; State v. Hauss, 
    140 Ariz. 230
    , 231 (1984) (citations omitted) (holding that admission of documentary
    evidence is mandatory in most cases to prove prior convictions).
    ¶7             Contrary to Pearsall’s contention, the State need not call a
    fingerprint expert, nor any other witness, to testify. See State v. Solis, 
    236 Ariz. 242
    , 247-49, ¶¶ 17, 20-22 (App. 2014) (holding that DOC record with
    photographs matching other admitted documents was sufficient and no
    testimonial evidence was required). The State sufficiently proved the prior
    convictions when it submitted the certified court records and Pearsall’s
    DOC packet. See id.; Hauss, 
    140 Ariz. at 231
    . Pearsall contends the
    photograph in the DOC packet was outdated and printed in black and
    white, but he does not dispute that his name, date of birth, criminal record,
    and social security number matched the information in the certified
    conviction records. Notably, Pearsall does not argue that he is not the
    person who was previously convicted. See Solis, 236 Ariz. at 248-49, ¶ 22
    (citation omitted). Pearsall has not shown the court erred in finding he had
    historical prior felony convictions.
    CONCLUSION
    ¶8            For the reasons stated above, we affirm Pearsall’s sentence.
    AMY M. WOOD • Clerk of the Court
    FILED:    JT
    3
    

Document Info

Docket Number: 1 CA-CR 21-0398

Filed Date: 3/10/2022

Precedential Status: Non-Precedential

Modified Date: 3/10/2022