State v. Lele ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ANDREI LELE, Petitioner.
No. 1 CA-CR 19-0039 PRPC
FILED 2-20-2020
Petition for Review from the Superior Court in Maricopa County
No. CR2013-003607-001
The Honorable John R. Doody, Judge Pro Tempore
REVIEW GRANTED; RELIEF GRANTED IN PART AND DENIED IN
PART
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Adena J. Astrowsky
Counsel for Respondent
Maricopa County Office of the Legal Advocate, Phoenix
By Colin F. Stearns
Counsel for Petitioner
STATE v. LELE
Decision of the Court
MEMORANDUM DECISION
Chief Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Paul J. McMurdie and Judge Samuel A. Thumma joined.
S W A N N, Chief Judge:
¶1 In late 2013, Andrei Lele pled guilty to two counts of
attempted sexual abuse against adult victims. The plea agreement
provided that “[p]ursuant to A.R.S. § 13-3821, imposition of sex offender
registration is within the discretion of the Court.” The superior court
imposed a ten-year probation term without a registration condition.
¶2 In 2016, the state filed a petition to revoke Lele’s probation.
Lele admitted that he had violated a condition of probation. The superior
court revoked his probation and imposed prison terms. The court also
required Lele to register as a sex offender under § 13-3821, which provides:
A. A person who has been convicted of . . . a violation or
attempted violation of any of the following offenses . . . within
ten days after the conviction . . . , shall register with the sheriff
of that county:
...
3. Sexual abuse pursuant to § 13-1404 if the victim is under
eighteen years of age.
…
C. Notwithstanding subsection A of this section, the judge
who sentences a defendant for any violation of chapter 14 or
35.1 of this title[ ] or for an offense for which there was a
finding of sexual motivation pursuant to § 13-118 may require
the person who committed the offense to register pursuant to
this section.
(Emphases added.)
¶3 Lele pursued post-conviction relief, contending that the
superior court erred by ordering registration under § 13-3821, and that his
appointed lawyer’s failure to object to the registration order constituted
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STATE v. LELE
Decision of the Court
ineffective assistance of counsel. The court summarily denied relief,
concluding that Lele’s convictions subjected him to the court’s discretionary
authority to order registration under § 13-3821(C). Lele petitions this court
for review. We grant review, and we grant relief in part.
¶4 As an initial matter, Lele was not subject to mandatory
registration under § 13-3821(A) because his victims were adults. See A.R.S.
§ 13-3821(A)(3). Further, the court lacked discretion to order registration
under § 13-3821(C). Section 13-3821(C) permits such an order in two
circumstances: (1) when the defendant is sentenced for a violation of an
offense set forth in chapters 14 or 35.1 of Title 13 of the Arizona Revised
Statutes; or (2) when there was a finding of sexual motivation under § 13-
118. Here, though Lele initially was charged with sexual abuse, a chapter-
14 offense, he ultimately pled guilty to and was sentenced for attempted
sexual abuse, a chapter-10 offense. See A.R.S. § 13-1001. Section 13-3821(C)
does not authorize a registration order when the defendant is sentenced for
an attempted violation of chapter 14. See State v. Peek, 219 Ariz. 182, 184–
85, ¶¶ 12–20 (2008). The court therefore lacked discretion to order
registration based on the nature of the offense. Further, the court lacked
discretion to order registration based on sexual motivation. Sexual
motivation is not an element of the attempted offense, State v. Holle, 240
Ariz. 300, 307, ¶ 34 (2016), and the court made no finding of sexual
motivation under § 13-118. Notwithstanding the language of the plea
agreement, the registration order was contrary to law and void. See Coy v.
Fields, 200 Ariz. 442, 444–46, ¶¶ 4–14 (App. 2001). We therefore grant relief
in part by vacating the registration order.
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STATE v. LELE
Decision of the Court
¶5 Lele has not, however, demonstrated ineffective assistance of
counsel. To state a colorable claim for ineffective assistance of counsel, a
petitioner must show that his or her counsel’s performance fell below
objectively reasonable standards and that the deficient performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 687–88 (1984); State
v. Nash, 143 Ariz. 392, 397 (1985). “[T]he [petitioner’s] showing must be that
of a provable reality, not mere speculation.” State v. Rosario, 195 Ariz. 264,
268, ¶ 23 (App. 1999). Lele provides nothing, other than the fact of the
unlawful registration requirement, to substantiate his assertion of
ineffective assistance of counsel. We therefore detect no error in the
superior court’s summary denial of relief on that claim, and we deny relief
with respect to that portion of the superior court’s ruling.
AMY M. WOOD • Clerk of the Court
FILED: AA
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