State v. Evans

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 ex rel.,
DENNIS M. MCGRANE, Yavapai
County Attorney, Petitioner,

v.

BRANDON FREELAND EVANS, Respondent.

No. 1 CA-SA 25-0381
FILED 06-12-2026

Petition for Special Action from the Superior Court in Yavapai County
No. S1300CR202380057
The Honorable Debra R. Phelan, Judge

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Yavapai County Attorney’s Office, Camp Verde
By Lindsay Smith
Counsel for Petitioner

The Zickerman Law Office, PLLC, Flagstaff
By Adam Zickerman
Counsel for Respondent
STATE v. EVANS
Decision of the Court

MEMORANDUM DECISION

Presiding Judge David B. Gass delivered the decision of the court, in which
Judge Michael J. Brown and Judge Michael S. Catlett joined.

G A S S, Judge:

¶1 The State asks the court to accept special action jurisdiction
and rule the superior court should have found the State proved by clear and
convincing evidence Evans had 4 historical prior convictions for sentencing
purposes. The superior court found the State proved just 1: a 2017 Maricopa
County conviction. The State seeks review of the superior court’s findings
on 3 others: (1) a 2015 Maricopa County conviction, (2) a 2021 Yavapai
County conviction, and (3) a 2014 Coconino County conviction. Evans
agrees the issue is appropriate for special action jurisdiction but argues the
court should deny relief.

¶2 Because the State proved by clear and convincing evidence
the 3 disputed convictions, the court accepts special action jurisdiction and
grants relief as to those 3.

FACTUAL AND PROCEDURAL HISTORY

¶3 The State attempted to prove Evans had 6 historical and 4
non-historical prior felony convictions. The State offered certified copies of
documents related to the convictions and a certified copy of the Arizona
Department of Corrections, Rehabilitation and Reentry Automated
Summary Report (commonly known as a pen pack). The superior court
found the State’s evidence lacking on 9 of the convictions. As a result, the
superior court released the jurors without having them consider whether
Evans committed any of the prior offenses on multiple occasions.

I. The superior court found the State proved the 2017 Maricopa
County conviction by clear and convincing evidence, but not the
other 3.

A. The 2017 Maricopa County conviction.

¶4 For the 2017 Maricopa County conviction, the State provided
the superior court with certified copies of Evans’s right to appeal,
presentence report, sentencing order, plea agreement minute entry, and the

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STATE v. EVANS
Decision of the Court

plea agreement for taking the identity of another. Though Evans avowed to
having 4 prior felony convictions in that plea agreement, it did not list them.
The documentation supporting this prior conviction thus did not link Evans
to any other prior convictions. The conviction appeared on the second page
of Evans’s pen pack, which showed the same offense, offense date, and
sentence date. As to that conviction, the superior court said:

Maricopa County Superior Court, CR2017-002443-001: this is
in the “Pen Pack,” State’s Exhibit 6 as alleged. Because that
can be linked to Defendant through State’s 6, the Court found
this prior proven.

B. The 2015 Maricopa County conviction.

¶5 For the 2015 Maricopa County conviction, the State provided
the superior court with certified copies of Evans’s sentencing order, plea
agreement minute entry, confinement order, and the plea agreement for
possession or use of narcotic drugs violation and for possession or use of
drug paraphernalia. Though the plea was to a non-repetitive offense, the
plea agreement lists 1 prior conviction from January 13, 2000. The
documentation supporting this prior conviction thus did not link Evans to
any other prior convictions at issue in this special action.

¶6 As to the 2015 Maricopa County conviction, the superior court
said:

Maricopa County Superior Court, Cause No. CR2015-137578:
this is not in the “Pen Pack,” State’s Exhibit 6. While it is
captured in State’s Exhibit 2, without fingerprint analysis
comparison, the Court cannot connect this prior to Defendant.
The Court therefore cannot find this prior proven by clear and
convincing evidence.

¶7 Contrary to that finding, the pen pack shows the 2015
Maricopa County conviction just above the 2017 Maricopa County
conviction. The pen pack further shows the same offense, offense date, and
sentence date on the documentation. Notably, the State did not contradict
the superior court’s finding that the 2015 prior conviction did not appear in
Evans’s pen pack. The State also did not point out that fact in its petition for
special action or its reply.

C. The 2021 Yavapai County conviction.

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Decision of the Court

¶8 For the 2021 Yavapai County conviction, the State provided
the superior court with certified copies of Evans’s probation review
suspending the imposition of sentence and imposing a term of probation,
the plea agreement for burglary in the third degree, a probation violation
minute entry, and a minute entry continuing sentencing. The plea was to a
non-repetitive offense. As discussed below, the plea agreement lists prior
convictions linking Evans to other alleged prior convictions at issue in this
special action.

¶9 As to the 2021 Yavapai County conviction, the superior court
said:

Yavapai County Superior Court, Cause No.
P1300CR202100751: this is not in the “Pen Pack,” State’s
Exhibit 6. While it is captured in State’s Exhibits 10, and 11,
without fingerprint analysis comparison, the Court cannot
connect this prior to Defendant. The Court therefore cannot
find this prior proven by clear and convincing evidence.

¶10 Contrary to that finding, the plea agreement lists the 2017
Maricopa County conviction, which the superior court found the State
proved by clear and convincing evidence because it appeared in the pen
pack. It also lists the 2015 Maricopa County conviction, which as noted
above also appeared in the pen pack. That said, the plea agreement reversed
the offense date and the sentence date for the 2015 Maricopa County
conviction, but the information otherwise was correct including the case
number in the pen pack. The plea agreement also listed the 2014 Coconino
County conviction. The documentation supporting this prior conviction
thus did link Evans to 3 prior convictions, 2 of which appeared in the pen
pack.

D. The 2014 Coconino County conviction.

¶11 For the 2014 Coconino County conviction, the State provided
the superior court with certified copies of Evans’s change of plea and
sentencing order suspending the imposition of sentence and imposing a
term of probation, the plea agreement for possession of drug paraphernalia,
a termination of probation minute entry, and the information. The plea was
to a non-repetitive offense so it lists no prior convictions.

¶12 As to the 2014 Coconino County conviction, the superior
court said:

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Decision of the Court

Coconino County Superior Court, Cause No. CR201400458:
this is not in the “Pen Pack,” State’s Exhibit 6. While it is
captured in State’s Exhibit 1, without fingerprint analysis
comparison, the Court cannot connect this prior to Defendant.
The Court therefore cannot find this prior proven by clear and
convincing evidence.

¶13 Contrary to that finding, the plea agreement for the 2021
Yavapai County conviction lists it. The documentation supporting this
prior conviction thus linked Evans to 3 prior convictions, 2 of which
appeared in the pen pack and 1 that listed it in the plea agreement.

DISCUSSION

I. The court could, but exercises its discretion and does not, decline
jurisdiction based on the State’s failure to comply with the Rules
of Procedure for Special Actions.

¶14 Rule 11, Rules of Procedure for Special Action, says: “To the
extent they are consistent with these rules . . . the Arizona Rules of Civil
Appellate Procedure . . . apply to appellate special actions in the Court of
Appeals or the Supreme Court.” Ariz. R.P. Spec. Act. 11(a)(1). Rule 13(a)(5),
Arizona Rules of Civil Appellate Procedure, requires the State’s petition
include “[a] ‘statement of facts’ that are relevant to the issues presented for
review, with appropriate references to the record.” (Emphasis added).
And as the petitioner, the State “must file an appendix that includes a copy
of the decision being challenged and copies of all documents from the
[superior] court’s record the reviewing court will need to decide the issues
the petition raises.” Ariz. R.P. Spec. Act 14(e)(1). In addition, “[a]ny
references to the record appearing in the petition must be supported by a
document in the appendix, and the document’s location in the appendix
must be identified by page number.” Id.

¶15 Here, the State never once referenced the more than 300 pages
of appendices attached to its petition beyond listing them in its table of
contents. And the appendices did not include the exhibits the superior court
admitted during the priors hearing. Instead, the State included Appendix
D (126 pages of trial transcripts) and Appendix F (a 172-page stack of papers
the State called “Certified Records of Conviction” in its Table of Contents).
Even so, the court did its best to decipher what exhibits were introduced to
support the alleged prior convictions.

¶16 The court nonetheless accepts special action jurisdiction
because the State’s right to appeal depends on whether Evans appeals his

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convictions or sentences. “The right of appeal in criminal cases is not known
to the common law and exists, if at all, by virtue of some constitutional or
statutory provision.” State v. Moore, 48 Ariz. 16, 18 (1936). Section 13-4032
enumerates the exclusive statutory grounds on which the State may appeal
in criminal cases. “[I]n the absence of a constitutional provision or statute
conferring the state’s right to appeal, an appellate court has no subject
matter jurisdiction to consider that appeal.” State v. Santillanes, 256 Ariz.
534, 540 ¶ 23 (2024) (quoting State v. Dawson, 164 Ariz. 278, 280 (1990)).

II. Though the superior court found the State proved just 1 prior
conviction by clear and convincing evidence, it should have found
the State proved 4.

¶17 Whether “a prior conviction constitutes [a] historical prior
felony conviction for purposes of sentence enhancement involves a mixed
question of law and fact,” which the court reviews de novo. State v. Derello,
199 Ariz. 435, 437 ¶ 8 (App. 2001).

¶18 The issue arises under recent developments in the law. See
Erlinger v. United States, 602 U.S. 821 (2024); State v. Porter, 258 Ariz. 590
(App. 2024) (depublished in part). Under Erlinger and Porter, the superior
court first decides whether the State proved any prior offenses by clear and
convincing evidence, then the jury determines whether the State proved
beyond a reasonable doubt any prior offenses occurred on multiple
occasions. See State v. Blackwell, 1 CA-SA 25-0316, 2026 WL 1408878, at *4 ¶
21 (App. May 20, 2026) (citing Erlinger, 602 U.S. at 840). If the superior court
does not find the State proved at least 2 prior offenses, then there is nothing
for the jury to consider. Because of the superior court’s ruling here, the jury
did not consider whether the prior convictions occurred on multiple
occasions.

¶19 The State proves a prior conviction through “extrinsic
evidence, [which is] usually in the form of a certified copy of a judgment of
conviction. . . . Certified copies of a judgment of conviction, however, are
not always required.” State v. Nash, 143 Ariz. 392, 403 (1985) (citation
omitted). Though the State may rely on certified copies of convictions and
Arizona Department of Corrections, Rehabilitation, and Reentry records
showing Evans’s prior convictions, the State must show the link between
those documents and Evans. State v. Robles, 213 Ariz. 268, 273 ¶ 17 (App.
2006). That evidence may be in the form of testimony of the link, but
nothing in Robles suggests the superior court must accept testimony as
sufficient to meet the clear and convincing evidence standard. Id. (ruling
the superior court did not abuse its discretion when it accepted testimony

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linking the defendant to the certified documents). At bottom, the State must
produce sufficient evidence to establish the prior conviction and the
connection between the prior conviction and the defendant. Id.

¶20 As discussed above, the superior court found the pen pack
showed only 1 of the 4 prior convictions. It in fact showed 2—the 2017 and
2015 convictions. Those 2 convictions and the 2014 Coconino County
conviction appear in the plea agreement for the 2021 Yavapai County
conviction. True, the State failed to draw the connections for the superior
court and for the court. But on special action review, the court engages in a
de novo review. Because the certified copies of the 4 convictions, the pen
pack evidence showing 2 of the 4, and the plea agreement linking all 4, the
State met its clear and convincing burden as to all 4.

¶21 The State invites the court to go further and espouse a broad
rule of law about the evidence necessary to meet its burden. The court
declines that invitation because it can resolve the issues based on the facts.
And as much as the State seeks a broader statement of the law, it was
because the State gave the superior court inadequate information to assess
its evidence in the heat of trial, resulting in unnecessary delay and the need
to empanel a new jury to decide whether the State can prove beyond a
reasonable doubt the prior offenses occurred on multiple occasions. In the
future, the State would do well to guide the superior court (and any
appellate court) through its evidence, rather than wait for an appellate court
to sift through the evidence de novo. Ramirez v. Health Partners of S. Ariz., 193
Ariz. 325, 326 ¶ 2 n.2 (App. 1998) (“Judges are not like pigs, hunting for
truffles buried in [the record].”) (quoting United States v. Dunkel, 927 F.2d
955, 956 (7th Cir. 1991)). Other appellate panels may not be so
accommodating.

CONCLUSION

¶22 The court accepts special action review, reverses the superior
court’s findings on the 2015 Maricopa County conviction, the 2021 Yavapai
County conviction, and the 2014 Coconino County conviction. The court
lifts the stay so the Yavapai County superior court can proceed consistent
with this decision.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR
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