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State v. Clemons

Court of Appeals of Arizona, Second Division, Department B

August 13, 2013

THE STATE OF ARIZONA, Respondent,
v.
DANA CLEMONS, Petitioner.

Not for Publication Rule 111, Rules of the Supreme Court

PETITION FOR REVIEW FROM THE SUPERIOR COURT OF MARICOPA COUNTY Cause No. CR2010005886001DT Honorable Samuel A. Thumma, Judge

Dana Clemons Florence In Propria Persona

MEMORANDUM DECISION

PHILIP G. ESPINOSA, Judge

¶1 Petitioner Dana Clemons was convicted pursuant to a plea agreement of sexual conduct with a minor, a class two felony, and two counts of attempted molestation of a child, class three felonies, all dangerous crimes against children (DCAC) under former A.R.S. § 13-604.01. See 2007 Ariz. Sess. Laws, ch. 248, § 2; 2006 Ariz. Sess. Laws, ch. 295, § 2.[1] He filed a notice of post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., and appointed counsel filed a notice permitted by Rule 32.4(c)(2) avowing he had reviewed the entire record and found no claims to raise in the post-conviction proceeding. Clemons then filed a pro se petition challenging the sentence, arguing the prison term was illegal and excessive because it was imposed pursuant to § 13-604.01 and trial counsel was ineffective for not objecting below. This petition for review follows the court's summary dismissal of the Rule 32 petition. We will not disturb the trial court's ruling unless it clearly abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007).

¶2 The plea agreement specified Clemons agreed to plead guilty to count one of the indictment, sexual conduct with a minor, a class two felony and a dangerous crime against children, the victim being under the age of fifteen; the indictment listed various sentencing statutes including the DCAC statute, § 13-604.01. The agreement further provided that Clemons was to be sentenced to no less than twenty and no more than twenty-seven years' imprisonment on count one, followed by concurrent life terms of probation on the remaining two counts. The twenty-year minimum term under the plea agreement was the presumptive term for the offense, pursuant to § 13-604.01(C).

¶3 During the settlement conference/change-of-plea hearing in October 2010, the trial court reviewed the entire plea agreement with Clemons, including the provisions related to sentencing. The court asked Clemons if he understood the offenses were DCAC and he responded he did. The court asked Clemons whether he had reviewed the entire agreement with counsel and understood it; again Clemons responded in the affirmative. After the court explained all of his rights to him and questioned him about his understanding of the terms of the plea agreement, Clemons entered guilty pleas pursuant to the agreement, acknowledging he was guilty of count one, which again was characterized as a DCAC. He similarly admitted the remaining two charges. After the factual bases for the charges were established, including the fact that the victim had been fourteen years of age, the court accepted the plea agreement, subsequently sentencing Clemons to the twenty-year prison term followed by lifetime probationary terms.

¶4 Clemons maintained in his pro se Rule 32 petition that the trial court had erred by sentencing him under § 13-604.01 and argued the court had been required, instead, to sentence him according to the provisions of former A.R.S. §§ 13-701 and 13-702.01, see 1993 Ariz. Sess. Laws, ch. 255, § 10; 2006 Ariz. Sess. Laws, ch. 148, § 2, [2] statutes that also were listed in the plea agreement. He contended his sentence was illegal and violated his fundamental rights. He also argued that trial counsel had been ineffective for not objecting to the sentence on this ground at the sentencing hearing.

5 The trial court denied relief and dismissed Clemons's petition in a thorough minute entry order that clearly identified, thoroughly analyzed, and correctly resolved the issues Clemons had raised in his petition for post-conviction relief We need not restate the court's ruling in its entirety here. Rather, the court addressed the claims in a manner that has permitted us to review it thoroughly and to evaluate the propriety of the ruling in light of the claims Clemons has raised in the petition for review. For this reason, and because the record before us establishes the court's ruling was correct, we adopt its ruling. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). Clemons has not sustained his burden of establishing the court abused its discretion. See Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d at 948.

¶6 Accordingly, although review is granted, relief is denied.

CONCURRING: VIRGINIA C. KELLY, Presiding Judge, PETER J. ECKERSTROM, Judge.


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