State v. Jones ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
SCOTT MICHAEL JONES, Petitioner.
No. 1 CA-CR 20-0206 PRPC
FILED 10-20-2020
Petition for Review from the Superior Court in Maricopa County
No. CR2016-142181-001
The Honorable Jay R. Adleman, Judge
REVIEW GRANTED; RELIEF DENIED
APPEARANCES
Maricopa County Attorney’s Office, Phoenix
By Jeffrey R. Duvendack
Counsel for Respondent
Scott Michael Jones, Florence
Petitioner
STATE v. JONES
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma, Judge D. Steven Williams and Judge
David D. Weinzweig delivered the decision of the Court.
PER CURIUM:
¶1 Petitioner Scott Michael Jones petitions this court for review
of the dismissal of his petition for post-conviction relief (“PCR”).1 We have
considered the petition for review and, for the reasons stated, grant review
but deny relief.
FACTUAL AND PROCEDURAL HISTORY
¶2 The State charged Jones with two counts of failure to register
as a sex offender: failure to carry a valid identification (count one) and
failure to annually renew and obtain identification (count two), both Class
6 felonies, committed on two separate dates. See A.R.S. § 13-3821(J). After a
settlement conference and months of plea negotiations, Jones agreed to
plead guilty to both counts and stipulated to 1.75 years in prison for count
one, and to be placed on probation for count two upon release from prison.
If Jones rejected probation, any sentence imposed would be consecutive to
count one. In return, the State agreed to dismiss the allegation of all but one
of Jones’ six prior felony convictions. Because Jones failed to appear at his
original sentencing hearing, the superior court rejected the stipulated term
of 1.75 years in prison for count one and instead sentenced Jones to 2.25
years. As to count two, the court imposed a consecutive three-year
probation tail.
¶3 Jones timely commenced PCR proceedings. In his PCR
petition, Jones argued that counts one and two were continuing offenses
and a single act; therefore, the consecutive sentences violated A.R.S.
§ 13-116’s ban against double punishment. He also argued that his plea was
not voluntary and ineffective assistance of counsel (“IAC”) because
1 Effective January 1, 2020, the Arizona Supreme Court amended the
post-conviction relief rules. Because there were no substantive changes to
the respective rules related to this decision, this decision applies and cites
the current rules.
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STATE v. JONES
Decision of the Court
misleading advice from his attorney led him to enter into a plea with an
illegal sentence. The superior court summarily dismissed the petition.
DISCUSSION
¶4 We review the superior court’s dismissal order for an abuse
of discretion, which is Jones’ burden to prove. State v. Gutierrez, 229 Ariz.
573, 577, ¶ 19 (2012); State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011). He
fails to do so.
¶5 On review, Jones raises essentially the same arguments. First,
Jones argues § 13-116 prohibits his consecutive sentences because counts
one and two are multiple offenses that constitute a single act. Jones’
argument fails. Jones committed multiple violations of the same law. A.R.S.
§ 13-116; State v. McPherson, 228 Ariz. 557, 562, ¶ 12 (App. 2012) (finding
§ 13-116 inapplicable where defendant committed multiple violations of the
same law); State v. Henley, 141 Ariz. 465, 467 (1984) (“Because both counts
are punishable under the same sections of the law, consecutive sentences
would not have constituted double punishment in violation of our double
punishment statute, A.R.S. § 13–116.”). Thus, there is no colorable claim.
¶6 Jones next argues that his plea was not voluntary and IAC
because counsel gave him misleading advice that induced him to enter into
a plea with an illegal sentence. Again, Jones fails to raise a colorable claim.
See State v. Hamilton, 142 Ariz. 91, 93 (1984) (claims regarding the
voluntariness of a plea are meritless if the record shows the superior court
questioned the defendant in accordance with Boykin v. Alabama, 395 U.S. 238
(1969)); State v. Febles, 210 Ariz. 589, 635, ¶ 18 (App. 2005) (to raise a
colorable claim, defendant must establish counsel’s performance was
objectively unreasonable based on applicable professional standards, and
counsel’s performance prejudiced defendant); see also Ariz. R. Crim. P.
33.7(e) (“The defendant must attach to the petition any affidavits, records,
or other evidence currently available to the defendant supporting the
petition’s allegations.”).
¶7 Nothing in the record suggests that Jones’ plea was not
voluntary, that trial counsel performed deficiently, or that Jones was
prejudiced. Jones was properly advised that with more than two historical
felony convictions, Jones faced sentencing as a Category Three Offender
after trial, as well as the possibility of consecutive terms. His counsel
obtained a favorable plea for Jones by convincing the State to lower their
initial offer from 3.75 years to 1.75 years. Finally, Jones cannot show
prejudice based on the plea or counsel’s performance because the superior
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STATE v. JONES
Decision of the Court
court, in its discretion, rejected the stipulated term of 1.75 years in prison
for count one and imposed a consecutive probation term. Therefore, Jones’
claims fail.
¶8 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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