State v. Covarrubias ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Respondent,
v.
JOSE ALBERTO COVARRUBIAS, Petitioner.
No. 1 CA-CR 18-0344 PRPC
FILED 8-23-2018
Petition for Review from the Superior Court in Maricopa County
No. CR2016-147951-001
The Honorable Dean M. Fink, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Adena J. Astrowsky
Counsel for Respondent
Jose Alberto Covarrubias, Douglas
Petitioner
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge David D. Weinzweig joined.
STATE v. COVARRUBIAS
Decision of the Court
M c M U R D I E, Judge:
¶1 Petitioner Jose Alberto Covarrubias petitions this court for
review from the summary dismissal of his petition for post-conviction relief
of-right. We have considered the petition for review and, for the reasons
stated, grant review but deny relief.
¶2 Covarrubias pled guilty to theft of means of transportation, a
class 3 felony, with one historical prior felony conviction. He also pled
guilty to burglary in the third degree. Under the terms of his plea
agreement, Covarrubias and the State stipulated that the court would
impose an aggravated term of 7.5 years. The superior court sentenced him
to the stipulated aggravated term of 7.5 years’ imprisonment for theft of
means of transportation and placed him on three years’ probation for
burglary. Covarrubias filed a pro se petition for post-conviction relief
of-right after his counsel found no colorable claims for relief. The superior
court summarily dismissed the petition and Covarrubias now seeks review.
We have jurisdiction pursuant to Arizona Rule of Criminal Procedure
32.9(c) and Arizona Revised Statutes (“A.R.S.”) section 13-4239(C).
¶3 In his petition for review, Covarrubias argues the superior
court erred when it imposed the stipulated aggravated sentence of 7.5
years’ imprisonment for theft of means of transportation. Covarrubias
contends that regardless of the stipulation in the plea agreement, the
sentencing provisions of A.R.S. § 13-703 do not provide for a sentence of 7.5
years’ imprisonment for a class 3 felony with one historical prior felony
conviction.
¶4 We deny relief because the superior court did not err.
Covarrubias misconstrues § 13-703. A person convicted of a felony who has
one historical prior felony conviction is a “category two repetitive
offender.” A.R.S. § 13-703(B). A category two repetitive offender convicted
of a class 3 felony faces a sentence that ranges from a “mitigated” term of
3.25 years’ imprisonment to an “aggravated” term of 16.25 years, with a
presumptive term of 6.5 years. A.R.S. § 13-703(I). The court may impose a
sentence greater than the presumptive term if the trier of fact finds
aggravating circumstances. A.R.S. § 13-703(D) and (F). Here, the court, as
the trier of fact, found four aggravating circumstances. Therefore, § 13-703
authorized the superior court to sentence Covarrubias to the stipulated
aggravated term of 7.5 years’ imprisonment for theft of means of
transportation as stipulated in the plea agreement.
2
STATE v. COVARRUBIAS
Decision of the Court
¶5 Covarrubias was told at the time of the change of plea the
sentencing parameters for his crime with a historical prior felony
conviction. By pleading guilty, Covarrubias indicated he understood the
sentencing consequences, including both the sentencing range and the
stipulated sentence. The court accepted the plea and sentenced Covarrubias
as stipulated in the plea agreement. The sentence fell within the applicable
statutory parameters and was imposed in a lawful manner. See State v.
Dawson, 164 Ariz. 278, 281 (1990) (“[F]ailure to impose a sentence in
conformity with the mandatory provisions of the sentencing statute makes
that sentence ‘illegal.’”); State v. McPherson, 228 Ariz. 557, 559, ¶ 4 (App.
2012) (illegal sentence constitutes fundamental, prejudicial error); State v.
Anderson, 181 Ariz. 18, 19–20 (App. 1993) (sentence illegal when imposed in
unlawful manner by court's failure to consider material information); State
v. House, 169 Ariz. 572, 573 (App. 1991) (sentence outside applicable range
is illegal). Consequently, we reject the arguments raised by Covarrubias.
¶6 In his reply to the State’s response, Covarrubias raises other
claims he neither raised below nor presented in his petition for review.
These claims include: (1) that his sentences constitute cruel and unusual
punishment, are discriminatory, arbitrary and capricious, and violate both
equal protection and the prohibitions against double jeopardy; (2) his
consecutive term of probation is both excessive and illegal; (3) the
sentencing court did not consider all the appropriate mitigating
circumstances before imposing sentence; (4) trial counsel was ineffective;
and (5) the superior court was required to conduct an independent review
for fundamental error. We deny relief on these issues as well because a
petitioner may not raise issues not first presented to the superior court.
Ariz. R. Crim. P. 32.9(c)(4)(B); State v. Bortz, 169 Ariz. 575, 577 (App. 1991);
State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988); State v. Ramirez, 126 Ariz. 464,
468 (App. 1980); see also State v. Smith, 184 Ariz. 456, 459 (1996); State v.
Swoopes, 216 Ariz. 390, 403, ¶ 42 (App. 2007) (both holding there is no
review for fundamental error in a post-conviction relief proceeding).
Further, this court will not consider arguments or issues first raised in a
reply. See State v. Watson, 198 Ariz. 48, 51, ¶ 4 (App. 2000). Finally, “an
of-right Rule 32 petitioner is not entitled to a review of the record by the
superior court for arguable issues as required for direct appeals under
Anders v. California [] and State v. Leon [].” State v. Chavez, 243 Ariz. 313, 314
¶ 1 (App. 2017).
3
STATE v. COVARRUBIAS
Decision of the Court
¶7 For the above reasons, we grant review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
4