State v. Rojo ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ISRAEL ANTONIO ROJO, Petitioner.
No. 1 CA-CR 15-0761 PRPC
FILED 7-25-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2013-002332-002
The Honorable David B. Gass, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Karen Kemper
Counsel for Respondent
Israel Antonio Rojo, Douglas
Petitioner
STATE v. ROJO
Decision of the Court
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Paul J. McMurdie joined.
T H O M P S O N, Judge:
¶1 Petitioner Israel Antonio Rojo seeks review of the trial court’s
dismissal of the underlying petition for post-conviction relief.1 “We will
not disturb a trial court’s ruling on a petition for post-conviction relief
absent a clear abuse of discretion.” State v. Swoopes, 216 Ariz. 390, 393, ¶ 4,
166 P.3d 945, 948 (App. 2007). We have considered the petition for review
and find that Rojo has not sustained his burden of establishing such abuse
here. Therefore, we grant review but deny relief.
¶2 Rojo was indicted on one count of sale or transportation of a
dangerous drug (methamphetamine, over threshold amount) and
possession of drug paraphernalia. The state proceeded to allege: (1) three
historical priors; (2) a felony committed while on release/enhanced
sentencing pursuant to Arizona Revised Statute (A.R.S.) § 13-708(D); (3)
multiple offenses not committed on the same occasion pursuant to A.R.S.
§§ 13-703 to -704; (4) aggravating circumstances other than prior
convictions; and (5) Rojo’s ineligibility for mandatory probation. Rojo pled
guilty to sale or transportation of a dangerous drug as a non-dangerous and
non-repetitive offense. The superior court subsequently sentenced Rojo,
per the plea agreement, to the slightly aggravated sentence of twelve
calendar years’ (flat time) imprisonment and awarded pre-incarceration
credit.
1 Rojo filed a timely notice of for post-conviction relief in the instant
Maricopa County case CR2013-002332-002 DT and his Maricopa County
companion case CR2012-143021-002 DT, in which a jury convicted Rojo of
the alleged offenses. Rojo filed a direct appeal in case CR2012-143021-002,
and the superior court erroneously dismissed the notice of post-conviction
relief as to both cases, pending the conclusion of the direct appeal. The
court recognized the error, vacated the minute entry and set a filing
deadline for a petition on Rojo’s 2013 case.
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STATE v. ROJO
Decision of the Court
¶3 Rojo’s “of right” petition for post-conviction relief raised two
claims. First, that his sentence was improperly aggravated and next, that
his trial counsel was ineffective because counsel failed to advise him of and
explain the plea’s stipulation to a twelve-year flat time sentence. The trial
court dismissed the petition for post-conviction relief in an order that
clearly identified and correctly ruled upon the issues raised.
¶4 On review, Rojo raises three issues: (1) that the court
committed fundamental error when it sentenced Rojo to an aggravated
prison term without the aggravating factors being properly determined by
the court; (2) that counsel was ineffective in his representation of Rojo
because he failed to advise Rojo as to his right to a mitigation and
aggravation hearing; and (3) that the trial court erred in failing to hold an
aggravation and mitigation hearing.
¶5 There is no fundamental error review in a post-conviction
relief proceeding. State v. Smith, 184 Ariz. 456, 460, 910 P.2d 1, 5 (1996).
Whether to grant or deny post-conviction relief pursuant to Rule 32 is
within the trial court’s discretion; we will not reverse the trial court’s
decision absent an abuse of discretion. State v. Schrock, 149 Ariz. 433, 441,
719 P.2d 1049, 1057 (1986). The record establishes that the court did
specifically find aggravating circumstances in support of the slightly
aggravated sentence. The trial court discussed and found that Rojo was on
misdemeanor probation, that Rojo had a criminal history that was not used
to enhance his sentence by making the offense to which he pled a repetitive
offense, and the court found that Rojo was on release from the concurrent
2012 case when Rojo committed sale or transportation of a dangerous drug.
The court was bound by the statutory sentencing guidelines and explained
this to Rojo, in great detail, at the settlement conference. Rojo has failed to
demonstrate that the trial court abused its discretion by imposing a slightly
aggravated sentence.
¶6 Rojo’s claim of ineffective assistance of counsel on review
differs from the claim raised in his petition for post-conviction relief.
Below, Rojo alleged that trial counsel failed to explain the merits of the plea
agreement and on review, Rojo claims that trial counsel was ineffective for
failing to advise Rojo of his right to an aggravation and mitigation hearing.
Rojo’s third claim, that the trial court erred in failing to conduct a hearing
to establish and determine the aggravating and mitigating factors, is also a
new issue which was not previously raised below. A petition for review
may not present issues not first presented to the trial court. State v. Ramirez,
126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980); State v. Wagstaff, 161 Ariz.
66, 71, 775 P.2d 1130, 1135 (App. 1988); State v. Bortz, 169 Ariz. 575, 577-78,
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STATE v. ROJO
Decision of the Court
821 P.2d 236, 238-39 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii). See also
Swoopes, 216 Ariz. at 403, ¶ 41, 166 P.3d at 958; Smith, 184 Ariz. at 459, 910
P.2d at 4. The reviewing court will not consider meritorious issues not first
presented to the trial court. Wagstaff, 161 Ariz. at 71, 775 P.2d at 1135.
Further, “compliance with Rule 32 is not a mere formality.” Canion v. Cole,
210 Ariz. 598, 600, ¶ 11, 115 P.3d 1261, 1263 (2005). A petitioner must
“strictly comply” with Arizona Rule of Criminal Procedure 32 to be entitled
to relief. Id. A petition must state “the issues which were decided by the
trial court and which the defendant wishes to present to the appellate court
for review.” Ariz. R. Crim. P. 32.9(c)(1)(ii). Rojo’s petition for review does
not comply because it raises new arguments.
¶7 Rojo not only fails to meet his burden to sustain a colorable
claim for which this court may grant relief, but his petition for review also
fails to comply with Rule 32 and therefore, he is not entitled to relief on two
of the issues presented.
¶8 For the reasons stated, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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