Opinion
No. 2 CA-CR 2013-0537-PR
04-07-2014
THE STATE OF ARIZONA, Respondent, v. CARLOS RAMON AGUIAR, Petitioner.
William G. Montgomery, Maricopa County Attorney By Gerald R. Grant, Deputy County Attorney, Phoenix Counsel for Respondent Carlos Aguiar, Florence In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR2010124769001DT
The Honorable Roland J. Steinle, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Gerald R. Grant, Deputy County Attorney, Phoenix
Counsel for Respondent
Carlos Aguiar, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 Petitioner Carlos Aguiar seeks review of the trial court's summary dismissal of his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We grant review and, for the following reasons, we deny relief.
¶2 Pursuant to a plea agreement, Aguiar was convicted of kidnapping and first-degree burglary, both dangerous offenses, and sentenced to enhanced, aggravated, fifteen-year prison terms, to be served concurrently. He filed a notice of post-conviction relief, and appointed counsel notified the court that she could find no claims to be raised in Rule 32 proceedings. Aguiar then filed a pro se petition in which he appears to have alleged his trial counsel had been ineffective in failing to ask the court enter a special order finding his sentence was "clearly excessive" and to permit him, pursuant to A.R.S. § 13-603(L), to apply to the Arizona Board of Executive Clemency for relief.
¶3 After holding a telephonic conference, the trial court found Aguiar had failed to state a colorable claim for relief and summarily dismissed his petition pursuant to Rule 32.6(c). This petition for review followed. We review a trial court's summary denial of post-conviction relief for an abuse of discretion, see State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006), and we find none here.
¶4 On review, Aguiar again contends his sentences were "clearly excessive," citing his status as a first offender, his "legitimate remorse," "[s]trong family ethic(s)," and "[s]trong [w]ork [e]mployment [h]istory." He also asserts, without citation to authority, that offenders convicted of more serious offenses in Arizona could receive the same or lesser sentences and that "[s]entences for similar misconduct . . . in other states are not as severe and inflexible." He alleges a "failure or lack of representation" because his trial counsel did not request entry of a special order that would have permitted Aguiar to seek commutation of his sentences. See § 13-603(L) ("If at the time of sentencing the court is of the opinion that a sentence that the law requires the court to impose is clearly excessive, the court may enter a special order allowing the person sentenced to petition the board of executive clemency for a commutation of sentence . . . .").
¶5 "To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d at 68, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Id. To establish a colorable claim of prejudice, a defendant must "show a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. ¶ 25, quoting Strickland, 466 U.S. at 694.
¶6 Aguiar has failed to show any reasonable probability that the trial court would have entered an order pursuant to § 13-603(L) had such an order been requested by counsel. Aguiar's plea agreement provided he would be sentenced to prison terms within a statutory range that included a "presumptive sentence of 10.5 years; a minimum sentence of 7 years; and a maximum sentence of 21 years." It also provided that he "consent[ed] to judicial fact finding by preponderance of the evidence as to any aspect or enhancement of sentence, including aggravating circumstances." At sentencing, the court found, as aggravating circumstances, that Aguiar and his accomplices had committed their crimes for pecuniary gain and had caused "extreme" emotional harm to the victim, whom they kidnapped at gunpoint and held for ransom. The court stated it had considered evidence the defense presented in mitigation and, "under the circumstances," found "an aggravated term is appropriate." Nothing suggests the court would have signed an order finding Aguiar's sentences "clearly excessive." See State v. Borbon, 146 Ariz. 392, 399, 706 P.2d 718, 725 (1985) (declining to find counsel deficient "for failing to make an essentially futile request").
Aguiar has not challenged the validity of his guilty plea.
¶7 Because Aguiar has failed to state a colorable claim of deficient performance by counsel and resulting prejudice—or any other colorable claim for relief pursuant to Rule 32—the trial court did not abuse its discretion in summarily dismissing his petition for post-conviction relief. Accordingly, although review is granted, relief is denied.