State v. Smith

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

DOUGLAS DONTAE SMITH, Petitioner.

No. 1 CA-CR 19-0136 PRPC
FILED 5-14-2020

Petition for Review from the Superior Court in Maricopa County
No. CR2017-156087-001
CR2013-435355-001
The Honorable Paula A. Williams, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Frankie Y. Jones
Counsel for Respondent

Douglas Dontae Smith, Florence
Petitioner
 STATE v. SMITH
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.

M O R S E, Judge:

¶1 Douglas Dontae Smith petitions this court for review from the
superior court's dismissal of his petition for post-conviction relief, filed
pursuant to Arizona Rule of Criminal Procedure 32. We have considered
the petition for review and, for the reasons stated, grant review and deny
relief.

¶2 Smith pleaded guilty to possession or use of marijuana with
one prior felony conviction. In his plea agreement, Smith stipulated that he
would be sentenced to prison for no less than the presumptive term. The
superior court sentenced him to the presumptive term of one and three-
quarter years in prison.

¶3 Smith timely initiated a request for post-conviction relief, and
the superior court appointed counsel to represent him. After reviewing the
record and other pertinent documents, Smith's assigned attorney filed a
notice stating she could find no colorable claims to raise on Smith's behalf.
With the permission of the superior court, Smith filed a pro se petition for
relief. The court summarily dismissed Smith's petition, occasioning our
review.

¶4 In the petition before us, Smith contends the superior court
abused its discretion by not mitigating his sentence in consideration of his
being unlawfully incarcerated in the past. The record corroborates Smith's
position that he was erroneously sentenced to a year in prison in 2014.1
Although Smith's experience is regrettable, no remedy is found in the
challenge before us. At the sentencing hearing in this case, Smith's attorney
related the details of his erroneous incarceration and asked the sentencing
judge to mitigate Smith's sentence on that basis. The judge initially
expressed an inclination to impose an aggravated sentence, but expressly

1 The unlawful sentence was imposed after the superior court revoked
Smith's probation for a prior conviction despite having previously
discharged him from the probationary term.

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 STATE v. SMITH
Decision of the Court

stated she was considering the mitigating circumstances and sentenced
Smith to the presumptive term. The sentence was the minimum allowed
under the terms of Smith's plea agreement and we find no abuse of
discretion in the court's consideration of mitigating circumstances. See State
v. Cazares, 205 Ariz. 425, 427, ¶ 8 (App. 2003) ("[A] sentencing court is not
required to find that mitigating circumstances exist merely because
mitigating evidence is presented; the court is only required to give the
evidence due consideration."); see also A.R.S. § 13-701(E)(6) (giving the court
discretion to find a mitigating factor not otherwise enumerated in the
statute if "relevant to the defendant's character or background or to the
nature or circumstances of the crime"); State v. Olmstead, 213 Ariz. 534, 535,
¶ 6 (App. 2006) (observing that the trial court has discretion to impose a
presumptive sentence even if it finds only mitigating, and no aggravating,
factors).

¶5 Smith also claims ineffective assistance of counsel on the
grounds that a prior attorney or attorneys failed to prevent his erroneous
incarceration in 2014 and failed to explain the terms of probation in one or
more earlier cases. Because these assertions of error do not pertain to the
case before us, we do not consider them. We also decline to consider claims
that Smith did not present to the superior court in his underlying petition
for relief. See Ariz. R. Crim. P. 32.16(c)(2)(B); cf. State v. Bortz, 169 Ariz. 575,
577 (App. 1991) (observing that courts will not grant post-petition relief
based upon matters raised subsequent to the underlying petition).

¶6 For the reasons set forth above, we grant review but deny
relief.

AMY M. WOOD • Clerk of the Court
FILED: AA

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