State v. Lopez ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
GUILLERMO LOPEZ, Petitioner.
No. 1 CA-CR 13-0720 PRPC
FILED 4-16-2015
Appeal from the Superior Court in Maricopa County
No. CR2003-006174-001 DT
The Honorable Crane McClennen, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Guillermo Lopez, Florence
Petitioner
STATE v. LOPEZ
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.
P O R T L E Y, Judge:
¶1 Petitioner Guillermo Lopez petitions this court to review the
dismissal of his petition for post-conviction relief and grant him relief. We
have considered the petition for review and, for the reasons stated, grant
review, but deny relief.
¶2 Lopez was indicted and convicted by a jury of four counts of
sexual assault, four counts of aggravated assault and one count of
kidnapping.1 He was subsequently sentenced to nine aggravated sentences
for an aggregate prison term of one hundred years. An appeal was filed
and we affirmed Lopez’s convictions and sentences. State v. Lopez,
1 CA-CR 03-0828 (Ariz. App. May 6, 2004) (mem. decision). Lopez now
seeks review of the summary dismissal of his second petition for post-
conviction relief. We have jurisdiction pursuant to Arizona Rule of
Criminal Procedure 32.9(c).
¶3 Lopez presents two issues for review. He first contends the
trial court erred by considering his two prior felony convictions (which he
admitted to when testifying on his own behalf) to enhance his sentences,
because those priors were too old to be considered as “historical prior
felony convictions” pursuant to Arizona Revised Statutes (“A.R.S.”) section
13-604(V)(1) (2002). Lopez did not raise the issue on direct appeal. As a
result, because any claim Lopez could have raised on direct appeal is
precluded, Arizona Rule of Criminal Procedure 32.2(a), and none of the
exceptions under Rule 32.2(b) apply, we deny relief.
¶4 Lopez next contends the opinions in State v. Schmidt, 220 Ariz.
563, 208 P.3d 214 (2009), and State v. Perrin, 222 Ariz. 375, 214 P.3d 1016(App. 2009), are significant changes in the law that require us to grant relief.
Specifically, he contends that both cases require a trial court to find at least
two aggravating circumstances before the court may impose any
aggravated sentence. See A.R.S. § 13-702(C) (2002) (aggravating
1 Lopez was found not guilty of count six, theft.
2
STATE v. LOPEZ
Decision of the Court
circumstances for sentencing purposes). We disagree that those opinions
are significant changes in the law.
¶5 Here, the sole aggravating circumstance the trial court used
to aggravate each conviction was the physical, emotional and financial
harm Lopez caused the victim. See A.R.S. § 13-702(C)(9) (physical,
emotional and/or financial harm to the victim as an aggravating
circumstance). But neither Schmidt nor Perrin would justify a resentence.
¶6 In Schmidt, our supreme court held a trial court may not
impose an aggravated sentence based solely on the existence of a “catch-
all” aggravating circumstance. Schmidt, 220 Ariz. at 564, ¶ 1, 208 P.3d at
215.2 If a trial court wishes to rely on a “catch-all” aggravating circumstance
to impose an aggravated sentence, the State must also establish the
existence of at least one enumerated aggravating circumstance. Id. at 566,
¶ 11, 208 P.3d at 217. Schmidt, as a result, does not apply here because the
trial court did not rely on a catch-all factor to aggravate the sentences, and
Schmidt does not otherwise stand for the proposition that a trial court must
always find at least two aggravating circumstances before it may impose an
aggravated sentence.3
2 When Lopez committed the offenses in 2002, the “catch-all” circumstance
was “any other factor that the court deems appropriate to the ends of
justice.” A.R.S. § 13-702(C)(19).
3 It is important to note that our supreme court clarified Schmidt in State v.
Bonfiglio, 231 Ariz. 371, 295 P.3d 948 (2013). Schmidt provides that a trial
court may rely on a catch-all factor if there is also a “properly found
specifically enumerated factor [that makes] the defendant eligible for a
sentence greater than the presumptive” sentence. Bonfiglio, 231 Ariz. at 373,
¶ 10, 295 P.3d at 950. Schmidt does not provide that a court may rely on a
catch-all factor only if it also relies on that enumerated factor to impose an
aggravated sentence. Id. In Bonfiglio, the trial court enhanced Bonfiglio’s
sentence with his prior convictions, but relied only upon a catch-all factor
to aggravate his sentence. Proof that Bonfiglio had prior convictions, even if
only for purposes of sentence enhancement, satisfied Schmidt because prior
convictions were also an enumerated aggravating factor. Id. at 372, ¶ 3, 295
P.3d at 949. This allowed the trial court to impose an aggravated sentence
based on the existence of a catch-all factor even if that was the only
aggravating factor the court relied upon. Id. at 374, ¶ 11, 295 P.3d at 951.
Finally, Bonfiglio overruled State v. Zinsmeyer, 222 Ariz. 612, 218 P.3d 10693
STATE v. LOPEZ
Decision of the Court
¶7 Moreover, in Perrin, the appellate court held that a trial court
may not impose a substantially aggravated sentence pursuant to the former
A.R.S. § 13-702.01 unless the court finds at least two enumerated
aggravating circumstances. Perrin, 222 Ariz. at 378, ¶ 9, 214 P.3d at 1019.
The court here did not sentence Lopez to a “substantially aggravated”
sentence pursuant to A.R.S. § 13-702.01, and Perrin does not otherwise stand
for the proposition that a trial court must always find the existence of two
aggravating circumstances before it may impose any aggravated sentence.4
Consequently, because neither case is a significant change in the law that
impacts Lopez, we deny relief.
¶8 Having reviewed the two issues Lopez raised in the petition
for review, we deny relief.
:ama
(App. 2009), a case Lopez also cites as a significant change in the law.
Bonfiglio, 231 Ariz. at 374, ¶ 15, 295 P.3d at 951.
4 While these are not the grounds upon which the trial court dismissed the
petition for post-conviction relief, we may affirm a decision of a trial court
on any basis which is supported by the record. State v. Robinson, 153 Ariz.
191, 199, 735 P.2d 801, 809 (1987).
4