Not for Publication See Ariz.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. CR2009006748001DT The Honorable Paul J. McMurdie, Judge
William G. Montgomery, Maricopa County Attorney By Lisa Marie Martin, Deputy County Attorney, Phoenix Counsel for Respondent
Sergio Mendoza, Kingman In Propria Persona
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred.
¶1 Pursuant to a December 2009 plea agreement, petitioner Sergio Mendoza was convicted of aggravated assault, a class three, dangerous offense. After the trial court sentenced Mendoza to the stipulated, aggravated prison term of 10.5 years, he sought postconviction relief pursuant to Rule 32, Ariz. R. Crim. P. The court granted a resentencing after the state conceded the court improperly had relied on a felony conviction that was more than ten years old in imposing the aggravated prison term. The court, however, once again imposed an aggravated 10.5-year prison term. Mendoza subsequently sought post-conviction relief, which was summarily denied. This petition for review followed.
¶2 We will not disturb the trial court's ruling absent a clear abuse of discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here.
¶3 Appointed counsel filed a notice avowing he had reviewed the record but could find no claim to raise pursuant to Rule 32. In his pro se petition filed thereafter, Mendoza raised the following claims: the trial court may have erred in imposing the aggravated prison term by relying on his "lying in wait" as an aggravating circumstance because there was insufficient evidence in the record to support it, defense counsel had been ineffective at resentencing because he failed to present evidence in mitigation, Mendoza's double jeopardy rights were violated at the resentencing by the court's reliance on an aggravating factor that had been dismissed at the time he entered the original guilty plea, the prosecutor was guilty of misconduct at the resentencing hearing, and the Department of Corrections denied him the right to reasonable access to reference materials. The trial court found these were not colorable claims. Mendoza contends on review that the trial court abused its discretion by so ruling. We disagree for several reasons.
¶4 First, Mendoza stipulated to the 10.5-year prison term; therefore the trial court did not abuse its discretion by rejecting his suggestions that it should have sentenced him to a shorter prison term upon resentencing. Mendoza waived any general challenge to the propriety of an aggravated prison term. See generally State v. Barrera, 232 Ariz. 497, 307 P.3d 64 (App. 2013) (by entering guilty plea pursuant to plea agreement that contained sentencing range, defendant waived Eighth Amendment challenge to sentence imposed within that range). Nor has Mendoza otherwise established the trial court abused its discretion by finding he failed to raise a colorable claim for relief. Specifically, the court did not abuse its discretion in rejecting Mendoza's double jeopardy claim because double jeopardy principles are not implicated in a resentencing. State v. Ring, 204 Ariz. 534, ¶ 27, 65 P.3d 915, 929 (2003) ("Double jeopardy principles generally do not apply to sentencing proceedings."); see also State v. Sowards, 147 Ariz. 156, 159, 709 P.2d 513, 516 (1985) (state may relitigate defendant's release status on remand for resentencing and "may produce whatever additional evidence it has" without violating principles of double jeopardy).
¶5 Nor has Mendoza shown the trial court abused its discretion by rejecting his challenge to the aggravating circumstance it found existed at the resentencing hearing. At the beginning of that hearing, the court noted it had read the presentence report, "including all of the attachments, " adding that it had "gone back and reviewed the materials that were submitted in the postconviction relief proceeding." The court explained to Mendoza that he had entered into and the court had accepted plea agreements in this cause and two other, separate causes, and that the plea agreement in this case called for a stipulated prison term. The court added, "And if I were not to sentence you according to that stipulation . . . I would have to give the State the opportunity to withdraw. And since this plea agreement is contingent upon acceptance of the others [in three other causes, ] if you withdrew from this plea agreement, then all of your plea agreements would be withdrawn or potentially could be withdrawn." Mendoza stated he understood.
¶6 The court then found, based on "the facts agreed to at the change of plea and alleged by the State, " Mendoza had been lying in wait for the victim before he assaulted her, which was an aggravating circumstance for sentencing purposes. See A.R.S. § 13-701(D)(17) (providing as aggravating circumstance, "lying in wait for the victim or ambushing the victim during the commission of any felony"). Contrary to Mendoza's contention, there was sufficient information in the record to support that finding, including the transcript from the change-of-plea hearing and the state's sentencing memorandum, to which the state had attached police reports related to the assault.
¶7 Nor has Mendoza established the trial court abused its discretion by finding he had not raised a colorable claim of ineffective assistance of counsel or prosecutorial misconduct during resentencing. First, nothing in the record establishes the prosecutor committed misconduct. Second, to present a colorable claim for relief based on ineffective assistance of counsel, a defendant must show that counsel's performance was deficient under prevailing professional norms and that this deficiency was prejudicial, that is, there is a reasonable probability that but for this deficiency, the outcome would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006). "A colorable claim of post-conviction relief is 'one that, if the allegations are true, might have changed the outcome.'" State v. Jackson, 209 Ariz. 13, ¶ 2, 97 P.3d 113, 114 (App. 2004), quoting State v. Runningeagle, 176 Ariz. 59, 63, 859 P.2d 169, 173 (1993).
¶8 Here, we observe that counsel in fact urged the court to consider in mitigation statements made by the victim. And, in any event, Mendoza entered into a plea agreement that contained a stipulation that he would be sentenced to an aggravated, 10.5-year prison term, and the court assured him it would order terms in other cases to be served concurrently, which it did. Thus, he cannot demonstrate any resulting prejudice from counsel's decision not to present any other mitigating evidence. Finally, as a reflection of its careful consideration of the evidence supporting the only two possible aggravating circumstances, the court found ...