Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20113378001, The Honorable Javier Chon-Lopez, Judge.
Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent
Ryan Austin Membrila, Tucson In Propria Persona
Presiding Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Kelly  concurred.
VÁSQUEZ, Presiding Judge
¶1 Petitioner Ryan Membrila seeks review of the trial court's order dismissing his of-right petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P. For the following reasons, we grant review but deny relief.
¶2 Pursuant to a plea agreement, Membrila was convicted of manslaughter, a dangerous felony, and aggravated driving under the influence of intoxicating liquor (DUI) while his license was suspended, revoked, or restricted. The trial court sentenced him to presumptive, concurrent terms of imprisonment, the longer of which is 10.5 years.
¶3 In a petition for post-conviction relief filed by counsel, Membrila argued the trial court improperly considered his "unresolved substance abuse issues" as an aggravating circumstance relevant to sentencing. Membrila then filed a "Supplemental ProPer Petition for Post-Conviction Relief in which he relied on State v. Alvarez, 205 Ariz. 110, 67 P.3d 706 (App. 2003), State v. Germain, 150 Ariz. 287, 723 P.2d 105 (App. 1986), and State v. Pena, 209 Ariz. 503, 104 P.3d 873 (App. 2005), to argue the court also had improperly found, as an aggravating factor at sentencing, that "the victim's immediate family suffered . . . emotional . . . harm, " A.R.S. § 13-701(D)(9), because there was no "showing of . . . emotional harm rising above or beyond that normally expected from a manslaughter." And, relying on Pena, he maintained he was entitled to be resentenced without consideration of the allegedly improper aggravating factors. He also argued his trial counsel rendered ineffective assistance in failing to object to the court's findings regarding aggravating circumstances.
¶4 The trial court summarily dismissed the petitions, finding Membrila had failed to state a colorable claim for relief. See Ariz. R. Crim. P. 32.6(c). In his pro se petition for review of that ruling, Membrila essentially reasserts the arguments he made below.
¶5 We review a trial court's summary dismissal of post- conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). We find none here.
¶6 In its detailed ruling dismissing Membrila's petition, the trial court addressed all claims raised by counsel and by Membrila in his pro se supplement. The court correctly found Membrila's case distinguished from Alvarez and Germain on a number of grounds. For example, the court noted that, unlike the defendants in those cases, Membrila had been sentenced to a presumptive prison term, not one that had been increased based on an aggravating circumstance. See Germain, 150 Ariz. at 290, 723 P.2d at 108 (ordinarily, absent finding of statutorily enumerated aggravating circumstances, court may not increase presumptive sentence "by using the very elements of the crime as aggravating factors").
¶7 Importantly, in finding Membrila had failed to state a colorable claim, the trial court also concluded that "[t]he presumptive sentences are justified, " "even without the use of substance abuse as an aggravating factor, " and that none of the issues raised by Membrila "would have changed the [presumptive] sentence[s] imposed." See Strickland v. Washington, 466 U.S. 668, 694 (1984) (to establish prejudice required for claim of ineffective assistance of counsel, defendant must show reasonable probability that, but for counsel's alleged errors, "the result of the proceeding would have been different").
¶8 The presumptive sentences Membrila received were within the ranges provided by his plea agreement and were authorized by statute. See A.R.S. §§ 13-702(A), (D), 13-704(A); see also State v. Bly, 127 Ariz. 370, 372-73, 621 P.2d 279, 281-82 (1980) (recognizing Arizona's "policy of presumptive sentencing" and absence of statutory requirement for "special findings" when presumptive sentence imposed). "[A]nd we will not disturb a sentence that is within [the] statutory limits . . . unless it ...