Opinion
2 CA-CR 2022-0086
10-06-2023
The State of Arizona, Appellee, v. Kenneth Russell Nelson, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee Megan Page, Pima County Public Defender By Erin K. Sutherland, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Appeal from the Superior Court in Pima County No. CR20192299001 The Honorable James E. Marner, Judge
COUNSEL
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee
Megan Page, Pima County Public Defender By Erin K. Sutherland, Assistant Public Defender, Tucson Counsel for Appellant
Judge Gard authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Vasquez concurred.
MEMORANDUM DECISION
GARD, Judge:
¶1 Kenneth Nelson appeals from his conviction and sentence for second-degree murder. Nelson argues that the trial court erred by denying his motion to strike a juror for cause. He also asserts that the court imposed an illegal sentence when it sentenced him to the maximum prison term after the state failed to give pretrial notice of aggravating circumstances, and when it did not credit him for all time spent in pretrial custody. For the following reasons, we affirm Nelson's conviction and sentence, as modified to correct the court's error in calculating presentence incarceration credit.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining Nelson's conviction. See State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). Nelson and his wife C.N. met in 2009 and married about a year later. In August 2018, the couple welcomed their first child, R.N. By mid-May 2019, Nelson and C.N. had filed for divorce and were in the midst of arranging their separation. C.N. planned to move out of the family home with R.N. and into an extended-stay hotel, beginning the night of May 15, 2019. C.N. and Nelson agreed that Nelson would watch R.N. that evening while C.N. moved her things to the hotel. When Nelson got home, he joined C.N. and R.N. in the master bedroom, where C.N. was packing.
¶3 Shortly thereafter, a neighbor heard sounds of a woman screaming, a woman and a man arguing, and a baby crying from inside Nelson and C.N.'s apartment. Around the same time, Nelson contacted his sister, told her he had killed C.N., and asked her to pick up R.N. Nelson's sister did not believe him, so he took a photograph of C.N.'s body and sent it to her through a text message. Nelson's sister called police, who responded and arrested Nelson at the residence. In the ensuing hours, Nelson admitted several times that he had killed C.N. A medical examiner later opined that she had suffered at least fifty-four sharp-force injuries.
¶4 A grand jury indicted Nelson for first-degree murder. Testifying at his five-day jury trial, Nelson again admitted that he had killed C.N., explaining that he had done so after she had not allowed him to hold R.N. and that he had used a pocketknife he routinely carried. Nelson admitted that he had cut C.N.'s throat and stabbed her. He maintained that he had not planned to kill C.N., that he could not remember many details of her murder, and that he did not understand why he had killed her.
¶5 The jury found Nelson guilty of second-degree murder as a lesser-included offense of first-degree murder. After an aggravation phase, the jury found that Nelson had used, threatened to use, or possessed a deadly weapon-a knife-during the crime's commission. The trial court sentenced Nelson to the maximum prison term of twenty-five years. This appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031 and 13-4033(A).
Discussion
I. Motion to Strike Juror
¶6 Nelson first argues the trial court erred by denying his motion to strike for cause Juror 3, a woman who had previously experienced domestic violence. He asserts this violated his right to be tried by a fair and impartial jury. Nelson contends that Juror 3's responses were "equivocal and uncertain" when asked whether her experience would be on her mind or affect her judgment in rendering a verdict. For the reasons that follow, we affirm the trial court's ruling.
Nelson refers to Juror 3 by her name in his opening brief. We remind the parties that juror-identifying information must be kept confidential. See A.R.S. § 21-312. We therefore omit Juror 3's name and refer to her solely by her number in this decision.
¶7 The state and federal constitutions afford a criminal defendant the right to be tried by a fair and impartial jury. See Ariz. Const. art. II, § 24 ("In criminal prosecutions, the accused shall have the right to . . . have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed ...."); see also Morgan v. Illinois, 504 U.S. 719, 726 (1992) (Sixth and Fourteenth Amendments to United States Constitution guarantee right to fair and impartial jury in state court). A trial court must excuse a prospective juror "if there is a reasonable ground to believe that the juror . . . cannot render a fair and impartial verdict," Ariz. R. Crim. P. 18.4(b), including if the juror is "biased or prejudiced in favor of or against either of the parties," A.R.S. § 21-211(4).
¶8 A court should strike a juror who expresses serious misgivings about his or her ability to be fair and impartial, State v. Smith, 182 Ariz. 113, 115 (App. 1995), but need not remove a juror who "ultimately assures the court that he can be objective," State v. Reasoner, 154 Ariz. 377, 384 (App. 1987). "A juror's assurance of impartiality need not be couched in absolute terms." State v. Trostle, 191 Ariz. 4, 13 (1997). Ultimately, "[i]f a juror is willing to put aside his opinions and base his decision solely upon the evidence, he may serve." State v. Poland, 144 Ariz. 388, 398 (1985).
¶9 To ensure that a defendant receives a fair and impartial jury, a trial court must conduct a thorough voir dire examination inquiring into each juror's qualifications, and it must allow the parties to conduct further examination upon request. Ariz. R. Crim. P. 18.5(f). And a court must consider the totality of a juror's conduct and answers in resolving a motion to strike. Ariz. R. Crim. P. 18.5(h).
¶10 Because "[t]rial judges are in the best position to 'assess the demeanor of the venire, and of the individuals who compose it,'" we will not set aside a trial court's refusal to strike a juror for cause absent a clear showing of an abuse of discretion. State v. Naranjo, 234 Ariz. 233, ¶ 12 (2014) (quoting Uttecht v. Brown, 551 U.S. 1, 9 (2007)); see also State v. Colorado, No. 1 CA-CR 22-0290, ¶ 23, 2023 WL 5286248 (Ariz. App. Aug. 17, 2023); State v. Purcell, 199 Ariz. 319, ¶ 9 (App. 2001). As the party asserting error, Nelson bears the burden of establishing that Juror 3 was incapable of rendering a fair and impartial verdict. See Ariz. R. Crim. P. 18.5(h); see also State v. Acuna Valenzuela, 245 Ariz. 197, ¶ 21 (2018).
¶11 In this case, each prospective juror completed a written questionnaire before appearing in court for jury selection. One of the questions asked jurors to describe the circumstances of any contested or difficult divorce or child custody situation they had experienced. Juror 3 responded that she had undergone a divorce, had experienced child support issues, and "was a victim of domestic violence." The questionnaire also asked jurors whether they believed they would be fair and appropriate for this case. Responding, "not sure," Juror 3 explained, "I would hope to be a fair juror and base my decision solely on the evidence presented but I have never been a juror or been presented with this type of situation and that is why I am not sure."
¶12 During voir dire, the trial court asked the potential jurors, among other questions, whether they or their close relatives or friends had ever been arrested, charged, or convicted of any crime other than a minor traffic offense. Juror 3 disclosed that she and her former husband had been convicted of misdemeanor disorderly conduct decades before Nelson's trial, but their convictions had subsequently been set aside. The court questioned Juror 3 regarding the experience:
The Court: What about that? I don't know if you will hear domestic violence allegations in this case. Will that invade your thought process or keep you from giving the State or defense a fair and impartial trial?
Juror: I don't think so. I have never been a judge. That's one of the questions I was asked if I would be fair, I would say yes. I just wanted to be honest that I was part of the domestic violence.
¶13 Nelson, through counsel, followed up by again asking whether the incident would prevent or substantially impair Juror 3's ability to be fair and impartial. Juror 3 responded, "I don't think so." Nelson then inquired whether Juror 3 had any concerns that the case would bring up thoughts about the incident and "substantially impair [her] ability to be fair." Juror 3 stated, "I would make sure I look at the evidence, but it would definitely bring back thoughts of what happened." Nelson asked Juror 3 whether those thoughts would impede her ability to be fair and impartial, and the juror reiterated, "No. I would base my judgment on the evidence. That's what happened at the time." In a final follow-up, Nelson asked Juror 3 whether she was concerned that any thoughts the trial evidence provoked about her past case would "be in [her] mind" when considering the case. The juror replied, "It could, yeah."
¶14 Nelson moved to strike Juror 3 for cause, arguing that he was concerned about her prior domestic violence experience and that the trial evidence would provoke thoughts about her history. The trial court denied his motion without comment. Juror 3 was empaneled, deliberated, and rendered a verdict.
¶15 On appeal, Nelson highlights Juror 3's perceived equivocation and her admission that her prior experience may enter her mind when considering the evidence. But although Juror 3 expressed concern in her questionnaire about whether she could be fair and impartial, she attributed that concern to the fact that she had never served as a juror. And although Juror 3 acknowledged that the case had the potential to remind her of her domestic violence experience from decades ago, she ultimately assured the court-more than once-that she would base her verdict on the evidence presented and that she did not believe her experience would impair her ability to be fair and impartial.
¶16 As previously discussed, the trial court was not required to strike Juror 3 merely because she did not couch her assurances of fairness and impartiality in absolute terms. See Trostle, 191 Ariz. at 13. Nor was the court required to strike Juror 3 merely because the trial evidence may have reminded her of a negative experience, so long as that experience did not preclude her from being fair and impartial. See Ariz. R. Crim. P. 18.5(h); see also State v. Ruiz, No. 2 CA-CR 2022-0020, ¶ 51, 2023 WL 3055158 (Ariz. App. April 24, 2023) (recognizing that jurors may draw from common sense and experience in deciding case).
¶17 Our courts have found assurances similar to those Juror 3 offered sufficient to deny a motion to strike. See Hoskins, 199 Ariz. 127, ¶ 48 (challenged jurors each affirmed their ability to be fair and impartial and weigh the evidence and the "law requires no more"); State v. Medina, 193 Ariz. 504, ¶ 19 (1999) (upholding trial court's refusal to strike juror who stated he "would like to think that [he] would be a fair and impartial juror" and agreed to listen to evidence); State v. Poehnelt, 150 Ariz. 136, 146-47 (App. 1985) (answers in absolutes unnecessary where juror "believe[d]" he could be fair and impartial). In denying the motion here, the trial court implicitly found credible Juror 3's multiple assurances that she could be fair and impartial, a finding to which we defer because the court was ideally situated to observe Juror 3's responses and demeanor. See Acuna Valenzuela, 245 Ariz. 197, ¶ 30; see also State v. Jimenez, No. 2 CA-CR 2022-0062, ¶¶ 10, 13, 2023 WL 4529422 (Ariz. App. July 13, 2023) (trial court acted within its broad discretion in finding juror's assurances of impartiality credible notwithstanding juror's law enforcement experience).
¶18 "Without a showing of unqualified partiality of the juror, we will not upset a determination so clearly within the province of the [trial] court." State v. Tison, 129 Ariz. 526, 533 (1981). Nelson has not made that showing here, and we affirm the trial court's denial of his motion to strike Juror 3.
Because we conclude that the trial court did not abuse its discretion by denying Nelson's motion to strike Juror 3 for cause, we need not reach the question whether an erroneous denial amounts to trial or structural error as a result of our supreme court's recent elimination of peremptory strikes.
II. Imposition of Maximum Sentence
¶19 Nelson argues that the trial court illegally imposed a maximum sentence because the state failed to provide pretrial notice of its intent to allege as an aggravating factor that he had used a knife to kill C.N. See A.R.S. § 13-701(C) (maximum sentence may be imposed only if at least one aggravating factor is found beyond a reasonable doubt); (D)(2) (establishing use of deadly weapon or dangerous instrument as an aggravating factor when not already used for enhancement). Nelson bases his argument on Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny; the plain language of Rules 13.5(a) and 16.1(b), Ariz. R. Crim. P.; and due process principles. We conclude the notice given was sufficient under this case's circumstances, and we affirm the maximum sentence.
¶20 Although a "trial court has broad discretion to determine the appropriate penalty to impose upon conviction," State v. Cazares, 205 Ariz. 425, ¶ 6 (App. 2003), we review a challenge to a sentence's legality de novo, see State v. Johnson, 210 Ariz. 438, ¶ 8 (App. 2005). We also review de novo constitutional claims and the interpretation of procedural rules. See State v. Champagne, 247 Ariz. 116, ¶ 70 (2019) (constitutional claims reviewed de novo); Cranmer v. State, 204 Ariz. 299, ¶ 8 (App. 2003) (interpretation of court rules reviewed de novo).
A. Relevant Facts
¶21 A grand jury indicted Nelson for first-degree murder on May 28, 2019. The same day, the state filed, as relevant here, notices alleging for sentence-enhancement purposes that it might seek instructions on lesser-included offenses and that any such offenses were of a dangerous nature, involving the "use, discharge, and/or threatening exhibition of a deadly weapon or dangerous instrument, to wit: knife." See A.R.S. § 13-704. The state did not specifically allege any aggravating circumstances pursuant to § 13-701(D).
¶22 The trial court instructed the jury on both second-degree murder and manslaughter as lesser-included offenses. During its guiltphase deliberations, the jury asked whether it should consider the charge of second-degree murder if it could not reach a unanimous verdict on the charge of first-degree murder. In light of this question, and a potential second-degree murder verdict, the state informed the court that it would require an aggravation phase to have the jury determine whether Nelson's use of a knife constituted an aggravating factor. Nelson asked whether the aggravator had been alleged; the court responded that it had been, and the state referred Nelson to its allegation of the dangerous-nature enhancement.
The dangerous-nature enhancement set forth in A.R.S. § 13-704 does not apply to a sentence for second-degree murder, as an independent statute governs sentencing for that offense. See A.R.S. § 13-710 .
¶23 After the jury found Nelson guilty of second-degree murder, the trial court proceeded with the aggravation phase. The parties did not present additional evidence or argument, and the jury found that Nelson had "used, threatened to use, or possessed a deadly weapon or dangerous instrument during the commission of the crime, to wit: a knife."
¶24 On the date initially set for sentencing, Nelson challenged the state's notice of aggravating circumstances. The trial court continued sentencing and ordered simultaneous briefing on the question of notice. In his briefs, Nelson sought to strike the aggravating factor the jury had found, arguing that the plain text of Rules 13.5(a) and 16.1(b) required the state to provide notice of all sentencing allegations, including aggravating circumstances, no later than twenty days before trial, and that the untimely disclosure violated his due process rights under the state and federal constitutions. The state, on the other hand, argued that it was not required to give Nelson notice of aggravating circumstances before trial, that it had given Nelson sufficient notice and opportunity to defend against the allegation, and that Nelson had admitted during his testimony that he killed C.N. with a knife.
¶25 The trial court agreed that no rule or statute requires the state to allege an aggravating factor and that Nelson was only entitled to enough notice to allow a reasonable opportunity to prepare rebuttal. The court determined that Rule 13.5(a) need not "be read to imply that the [s]tate is required to file a notice of aggravating factors within the time limits imposed by Rule 16.1."
¶26 The trial court further examined prejudice, asking whether the untimely notice had compromised Nelson's trial strategy or his preparation, argument, or examination of witnesses. The court found that the dangerous-nature allegation, the interim complaint, and the circumstances of the case had given Nelson "ample notice that any sentence he received in the case could be aggravated because he used a knife to kill his wife." The court additionally observed that the state had "presented abundant and unrebutted evidence that [Nelson] killed his wife with a knife," including physical evidence from the scene, C.N.'s knife wounds, and Nelson's post-Miranda statements. And the court noted that Nelson had not contested that he killed C.N. with a knife, but rather had argued only that he did so without premeditation. Thus, the court found no prejudice from the allegation's timing and declined to strike the aggravating factor.
Miranda v. Arizona, 384 U.S. 436 (1966).
¶27 At sentencing, the trial court found three aggravators in addition to the one found by the jury-that the crime was especially cruel or heinous, see § 13-701(D)(5); that C.N.'s family had suffered physical, emotional, or financial harm, see § 13-701(D)(9); and that R.N. had been present during the commission of the crime, see § 13-701(D)(18), (27). The court found that the "aggravators significantly outweigh[ed] the mitigators" and imposed the maximum prison term of twenty-five years. See A.R.S. § 13-710.
B. Apprendi
¶28 Nelson argues that the state was required to give pretrial notice of its intent to seek an aggravated sentence based on his use of a knife to kill C.N. Citing Apprendi and ensuing cases, he contends that "without pretrial notice . . . of aggravating factors, a defendant's potential sentencing range with a loss at trial is capped at the presumptive." To the extent Nelson contends that Apprendi's rule bars a trial court from imposing a maximum sentence absent pretrial notice that the state intends to seek an aggravated sentence, we disagree.
¶29 Because the parties discuss the Apprendi line of cases at length, we begin with a review of that authority. In Apprendi, the Supreme Court held that the Sixth Amendment "requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt." 530 U.S. at 466. The Court thereafter applied Apprendi's reasoning to find Arizona's capital-sentencing scheme unconstitutional, holding that "[b]ecause Arizona's enumerated aggravating factors operate as 'the functional equivalent of an element of a greater offense,' the Sixth Amendment requires that they be found by a jury." Ring v. Arizona (Ring II), 536 U.S. 584, 585 (2002) (quoting Apprendi, 530 U.S. at 494, n.19).
¶30 Ring II prompted the legislature to amend Arizona's statutes governing capital sentencing to require a jury to determine, among other things, death-qualifying aggravating circumstances. See 2002 Ariz. Sess. Laws 5th Spec. Sess., ch. 1, § 3; see also State v. Ring (Ring III), 204 Ariz. 534, ¶ 13 (2003). The changes included an express requirement that the state give notice of one or more such circumstances before trial, see 2002 Ariz. Sess. Laws 5th Spec. Sess., ch. 1, § 3, a requirement that remains in our statutes today, see A.R.S. § 13-752(B). The legislature made no corresponding change to the non-capital scheme for imposing maximum sentences. But in 2002, our supreme court amended Rule 13.5(a), which had provided, "The prosecutor may amend an indictment, information or complaint to add an allegation of . . . prior convictions ...." 203 Ariz. LI (2002). The amendment permitted the state also to amend the document to include "other noncapital sentencing allegations that must be found by a jury." Id.
¶31 The Supreme Court thereafter clarified Apprendi's effect on non-capital sentencing, holding in Blakely v. Washington, 542 U.S. 296, 296 (2004), that the "relevant statutory maximum for Apprendi purposes is the maximum a judge may impose based solely on the facts reflected in the jury verdict or admitted by the defendant." See also Alleyne v. United States, 570 U.S. 99, 114-15 (2013) ("When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.").
¶32 Subsequently, our supreme court held as a matter of state law that the statutory maximum for Apprendi/Blakely purposes is the presumptive term. State v. Brown, 209 Ariz. 200, ¶ 12 (2004). And because only one aggravating factor is necessary to exceed the presumptive, the existence of a single Sixth Amendment-compliant factor permits additional judicial factfinding to determine the appropriate sentence within the maximum range. State v. Martinez, 210 Ariz. 578, ¶¶ 25-26 (2005). In other words, "once a jury finds or a defendant admits a single aggravating factor, the Sixth Amendment permits the sentencing judge to find and consider additional factors relevant to the imposition of a sentence up to the maximum prescribed in that statute." Id. ¶ 26; see also A.R.S. § 13-701(F) (if trier of fact has found an aggravating circumstance, trial court may find additional circumstances by a preponderance of the evidence).
¶33 Thus, as applied in Arizona, Apprendi and its progeny condition a sentence that exceeds the statutory presumptive on a Sixth Amendment-compliant finding of at least one aggravating factor. Without such a finding, a trial court lacks discretion to impose a maximum sentence. But Nelson points to nothing in the Apprendi line of cases, or our caselaw interpreting it, limiting a defendant's sentencing exposure to the presumptive term based solely on insufficient pretrial notice of aggravating circumstances, even if the notice given was otherwise sufficient to meet due process requirements or a Sixth Amendment-compliant aggravating factor exists. See McKaney v. Foreman, 209 Ariz. 268, ¶ 20 (2004) (recognizing distinction between Sixth Amendment jury-trial requirement and adequacy of notice).
¶34 The parties here do not dispute that the jury found an aggravating factor, thereby enabling the trial court to engage in additional fact-finding to impose a sentence up to the statutory maximum. See Martinez, 210 Ariz. 578, ¶¶ 25-26; see also § 13-701(F). Thus, Apprendi's rule did not bar the trial court from imposing that sentence merely because the state failed to notify Nelson before trial that it would pursue an aggravated sentence or identify the specific aggravating factor on which it would rely.
As we discuss below, that finding was unnecessary given Nelson's admission under oath to all facts necessary to establish the aggravating factor. See Martinez, 210 Ariz. 578, ¶ 26 (aggravating factor established by defendant's admission).
C. Rule 13.5(a) and Due Process
¶35 Nelson next contends the trial court violated Rule 13.5(a) and his due process rights by allowing the state to allege his use of a knife as an aggravating factor without timely notice of its intent to do so. We conclude that the court did not violate the procedural rules and that, in any event, any violation was harmless beyond a reasonable doubt. We further conclude Nelson received sufficient notice to satisfy due process requirements.
¶36 A defendant has state and federal constitutional rights to receive notice of the charge against him. See U.S. Const. amend. V, VI, XIV, § 1; Ariz. Const. art. II, § 4. To comport with due process, the notice must be sufficient to allow "a reasonable opportunity to prepare rebuttal." State v. Scott, 177 Ariz. 131, 142 (1993) (quoting State v. Ortiz, 131 Ariz. 195, 207 (1981)).
¶37 Our supreme court has protected the due process right to notice through various procedural rules, including Rule 13.5(a), which provides that the state "may" amend a charging document within Rule 16.1(b)'s timelines to allege prior convictions or "other noncapital sentencing allegations that must be found by a jury." Rule 16.1(b), in turn, requires parties to make motions twenty days before trial, but permits courts to modify that deadline.
¶38 While these rules protect a defendant's constitutional rights, failing to follow them does not necessarily infringe those rights. See State v. Freeney, 223 Ariz. 110, ¶¶ 24-26 (2009) (Rule 13.5(b) is a prophylactic rule containing procedural requirements that safeguard a defendant's constitutional rights, but a violation of that rule does not prove a constitutional violation). We review a court's decision allowing the state to amend for an abuse of discretion, see State v. Johnson, 198 Ariz. 245, ¶ 4 (App. 2000), and because a violation of Rule 13.5 does not necessarily also violate due process, any error in permitting an amendment is "neither prejudicial per se nor structural" and does not warrant automatic reversal. See Freeney, 223 Ariz. 110, ¶ 26. Rather, when a defendant has objected and a court erroneously allows an amendment, we review for harmless error. Id.; see also State v. Lehr, 227 Ariz. 140, ¶ 69 (2011). In that review, we consider whether delayed notice of the amendment "somehow prejudice[d] the defendant's 'litigation strategy, trial preparation, examination of witnesses, or argument.'" Lehr, 227 Ariz. 140, ¶ 70 (quoting Freeney, 223 Ariz. 110, ¶ 28).
¶39 We therefore must consider separately whether the trial court violated Rule 13.5(a) or Nelson's due process rights by allowing the mid-deliberations allegation here. As to Rule 13.5(a), Nelson argues that the rule's plain language, when read with Rule 16.1(b), required the state to give notice of aggravating circumstances twenty days before trial. He reasons that "sentencing allegations that must be found by a jury," as used in Rule 13.5(a), necessarily includes aggravating circumstances because, in light of Apprendi, there is no distinction between those circumstances and sentence enhancements.
¶40 The state, on the other hand, argues that aggravating circumstances need not be alleged in the charging document in the first place and, as a result, need not be alleged through an amendment to that document under Rule 13.5(a). See, e.g., State v. Nichols, 201 Ariz. 234, ¶¶ 10 &15 (App. 2001) ("Apprendi-element equivalents" need not be included in charging document). Citing State ex rel. Smith v. Conn (Tinnell), 209 Ariz. 195, ¶ 10 (App. 2004), the state further contends that Rule 13.5(a) creates a permissive, not mandatory, procedure for amending a charging document to include sentencing allegations.
¶41 We have yet to construe in a published opinion Rule 13.5(a)'s term "sentencing allegations" or whether Rule 13.5(a)'s procedure is the only one for alleging aggravating circumstances. But we need not do so here because, even under Nelson's construction of the rule, there is no reversible error. See State v. Huez, 240 Ariz. 406, ¶ 19 (App. 2016) (appellate court must affirm trial court's ruling if it was legally correct for any reason).
¶42 Under this case's unique facts, the aggravating factor at issue did not require a jury finding. Nelson testified under oath that he had killed C.N. with a knife. These admissions established the aggravating circumstance set forth in § 13-701(D)(2) by showing, at a minimum, that Nelson had used a dangerous instrument to commit the offense. See A.R.S. § 13-105(12) ("'Dangerous instrument' means anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury.").
¶43 As discussed above, aggravating circumstances admitted by a defendant are exempt from Apprendi's rule. See, e.g., Blakely, 542 U.S. at 296. Those circumstances are therefore not "sentencing allegations that must be found by a jury" under Rule 13.5(a). Because Nelson elected to testify and to admit the facts necessary to find an aggravating circumstance, the jury finding here was superfluous under both the Apprendi line of cases and § 13-701(C). See State v. Miranda-Cabrera, 209 Ariz. 220, ¶ 29 (App. 2004) (facts admitted by defendant during testimony satisfied Blakely and established enhancement for dangerous crimes against children). Cf. State v. Andersen, 177 Ariz. 381, 384 (App. 1993) (finding, in pre-Apprendi case involving dangerous-nature enhancement for which statute required jury determination, that defendant's testimony established the enhancement and that "submitting the allegation of dangerousness to the jury was unnecessary").
¶44 But even were we to assume Nelson's admission was insufficient and Rule 13.5(a) required the state to comply with Rule 16.1(b)'s time limits, Rule 16.1(b) permitted the trial court to modify that deadline. That is effectively what the court did when it accepted the aggravator after concluding Nelson had not been prejudiced by any delay. See State v. Cramer, 174 Ariz. 522, 523 (App. 1992) ("[B]ecause the court has power to extend the time for filing [under Rule 16.1(b)], it has the discretion to hear late motions."). The court therefore did not violate Rule 13.5(a) or Rule 16.1(b) by accepting the aggravating factor.
¶45 Finally, on the record before us, we conclude the state has shown beyond a reasonable doubt that any purported rule violation was harmless. See State v. Henderson, 210 Ariz. 561, ¶ 18 (2005). For the same reasons, we conclude there was no due process violation, see Lehr, 227 Ariz. 140, ¶ 70 (interpreting Freeney as applying the same factors to find harmless error under Rule 13.5(b) and to find no Sixth Amendment notice violation).
¶46 As the trial court noted, the state timely alleged the dangerous-nature sentence enhancement based on Nelson having used a knife to kill C.N. Despite the legal distinction between enhancements and aggravating circumstances, the facts establishing the knife's use as an enhancement are the same facts establishing its use as an aggravator. Nelson thus had notice that those facts, regardless of their labeling, could be used against him to extend his sentence, and he had ample time to prepare to rebut them. See Freeney, 223 Ariz. 110, ¶ 27 (amendment of charges under Rule 13.5(b) to include victim's serious physical injury not prejudicial in part because state filed dangerousness allegation alleging victim's serious physical injury).
¶47 Moreover, the record does not establish that earlier notice of the proposed aggravating factor would have altered Nelson's trial strategy. Nelson contends that he may not have testified had he known earlier that the state could seek a maximum sentence despite not having given pretrial notice of aggravating circumstances. But this argument is not persuasive because Nelson had notice, through § 13-701(C), that any facts he admitted could have supported a finding of aggravation without a jury determination thereof. See A.R.S. § 13-101(2) (stated purpose of Title 13 is "[t]o give fair warning of the nature of the conduct proscribed and of the sentences authorized upon conviction."). Cf. A.R.S. § 13-204(B) ("Ignorance or mistake as to a matter of law does not relieve a person of criminal responsibility."); State v. Soltero, 205 Ariz. 378, ¶ 7 (App. 2003) ("The promulgation of a law by a legislature in accordance with its constitutional obligations is deemed to constitute adequate notice to all."). And in any event, as discussed above, Nelson received timely notice that the state sought to extend his sentence based on the knife's use and nonetheless chose to testify and admit that fact.
¶48 Further, Nelson made post-Miranda statements, which were admitted at trial, conceding that he had used a knife, and the state presented overwhelming evidence establishing that fact. Even on appeal, Nelson concedes that "it was clear from the inception of the case that a knife was involved." He has identified no plausible rebuttal to this evidence, and has not explained how earlier notice that the knife's use would be invoked for aggravation instead of for enhancement would have affected his ability to contest it. Nor has he explained how earlier notice would have altered his-successful-trial strategy of admitting the knife's use and pursuing a lack-of-premeditation defense. See Lehr, 227 Ariz. 140, ¶ 70 (finding procedurally improper amendment of capital aggravating factor harmless where defendant had notice of the facts that would be alleged as aggravation "and never suggested that the amendment affected his defense" at sentencing).
¶49 We are likewise not persuaded by Nelson's argument that the mid-deliberations notice prejudiced him because it "likely influenced [his] decision to proceed to trial." Nelson appeared for a settlement conference and received a Donald advisement, but he has failed to include the transcript from those proceedings in the record on appeal. We are therefore uncertain how Nelson was advised concerning his sentencing exposure at those hearings, and we presume that the discussion there supports the trial court's ruling. See Ariz. R. Crim. P. 31.8(b)(2)(A)(i) (permitting appellant to designate as part of the record transcripts not automatically included); State v. Berge, 130 Ariz. 135, 136 (1981) ("[I]t is the responsibility of the party objecting to see that the record on appeal contains the material to which exception is taken. Failure to provide relevant portions can result in a presumption that the missing portions of the record support the action of the trial court."). At a minimum, though, it appears from the information available that Nelson's plea offer allowed a sentence of up to twenty-five years-the term imposed here.
State v. Donald, 198 Ariz. 406 (App. 2000).
¶50 In any event, Nelson's settlement conference and Donald advisement occurred several months before trial. Even under Nelson's interpretation of Rule 13.5(a), the state's deadline for noticing aggravating circumstances had not yet passed, and he and his counsel should have been aware when he rejected the plea offer that the state could still allege aggravating circumstances and pursue a maximum sentence.
¶51 We thus affirm the trial court's imposition of a maximum sentence. Because this decision does not reach whether the state is required to give pretrial notice of aggravating circumstances "that must be found by a jury," Ariz. R. Crim. P. 13.5(a), we caution the state and trial courts that our conclusions here depend on the unique facts of Nelson's case, see Freeney, 223 Ariz. 110, n.3 (affirming conviction but reminding the state and trial courts that Rule 13.5(b) "should not be carelessly invoked" and should not be used improperly "on the assumption that the resulting error will ultimately be found harmless").
III. Presentence Incarceration Credit
¶52 Finally, Nelson argues the trial court failed to award credit for nine days he spent in pretrial custody, for a total credit of 1,104 days.Although the state does not contest that the trial court should have awarded Nelson additional credit, it argues that he should have received credit for eight additional days, not nine.
In his opening brief, Nelson argued he is entitled to ten days of presentence incarceration credit, to reflect 1,105 days total. In his reply brief, he acknowledged that his initial calculation mistakenly included the date of sentencing.
¶53 Section 13-712(B) of the Arizona Revised Statutes requires that "[a]ll time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense" be "credited against the term of imprisonment." A trial court's failure to award a defendant with full credit for presentence incarceration constitutes fundamental error. State v. Cofield, 210 Ariz. 84, ¶ 10 (App. 2005).
¶54 Here, the trial court credited Nelson with 1,095 days of presentence incarceration. The parties agree that Nelson was taken into custody on May 15, 2019, the date of the offense, and sentenced on May 23, 2022. Nelson concedes that he is not entitled to presentence incarceration credit for the day of sentencing. State v. Hamilton, 153 Ariz. 244, 246 (App. 1987) ("Where the date sentence is imposed serves, as here, as the first day of sentence . . . it does not also count for presentence credit."). Therefore, Nelson is entitled to credit for time spent in custody from and including May 15, 2019, to and excluding May 23, 2022. This time amounts to 1,104 days.
¶55 We therefore conclude that Nelson was entitled to 1,104 days presentence incarceration credit and that the trial court erred by failing to credit him for nine additional days. Accordingly, pursuant to A.R.S. § 134037, we modify Nelson's sentence to include presentence incarceration credit for 1,104 days rather than the 1,095 days originally ordered. See Hamilton, 153 Ariz. at 246; see also State v. Carnegie, 174 Ariz. 452, 454-55 (App. 1993); State v. Stevens, 173 Ariz. 494, 495-96 (App. 1992).
Disposition
¶56 For the foregoing reasons, we affirm Nelson's conviction and sentence, as modified.