State v. Garcia

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GABRIEL MAURICAO GARCIA, Petitioner.

No. 1 CA-CR 19-0359 PRPC
FILED 4-30-2020

Appeal from the Superior Court in Maricopa County
No. CR1996-000100
The Honorable John R. Doody, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Gabriel Garcia, Kingman
Petitioner

Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Respondent

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Jennifer M. Perkins joined.
 STATE v. GARCIA
Decision of the Court

T H U M M A, Judge:

¶1 Gabriel Mauricao Garcia petitions this court for review of the
superior court’s order summarily dismissing his petition for post-
conviction relief, filed pursuant to Arizona Rule of Criminal Procedure 32
(2020).1 Absent an abuse of discretion or error of law, this court will not
disturb a superior court’s ruling on a petition for post-conviction relief. See
State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012). Because Garcia has shown
no such error, this court grants review but denies relief.

¶2 In January 1997, Garcia pled guilty to molestation of a child,
a Class 2 felony and dangerous crime against children, as well as two counts
of attempted child molestation, Class 3 felonies and dangerous crimes
against children. Garcia was sentenced to a 17-year prison term on the
molestation conviction and placed on lifetime probation (later reduced to
five years of probation) on the attempt convictions, to start upon the
absolute discharge of his prison term. Garcia’s probation grants began in
September 2013.

¶3 In March 2017, his probation officer filed a petition to revoke
alleging several violations of his probation grant. Garcia admitted to
violating probation in May 2017, and he was reinstated on probation
through October 2018.

¶4 In September 2017, his probation officer filed another petition
to revoke. In October 2017, after a proper plea colloquy, including being
advised that he could be sentenced for up to 10 years in prison, Garcia
“knowing[ly], intelligent[ly], and voluntar[ily]” admitted that he had
violated his probation grants.

¶5 At the disposition hearing held later in October 2017, the court
revoked Garcia’s probation, and after weighing the mitigating and
aggravating circumstances, sentenced him to concurrent, presumptive 10-
year prison terms for the attempt convictions. Before doing so, the court
stated it considered Garcia’s age when he committed the offenses and that
he had not committed similar crimes as mitigating circumstances and, as
aggravating circumstances, the harm to the victims, age of the victims, and
that Garcia was in a position of trust.

1Absent material revisions after the relevant dates, statutes and rules cited

refer to the current version unless otherwise indicated.

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 STATE v. GARCIA
Decision of the Court

¶6 In September 2018, Garcia timely sought post-conviction
relief, claiming ineffective assistance of counsel resulting in: (1) a violation
of his 6th Amendment right to a jury determination regarding aggravating
circumstances, and (2) a lack of adequate notice of the aggravating
circumstances relied upon by the court. The superior court summarily
dismissed the petition, finding that “[t]he court has no reason to believe that
the result would have been more favorable to the defendant even if defense
counsel’s alleged errors had been cured in the manner alleged in the
defendant’s Rule 32 petition.” This timely petition for review followed.

¶7 Garcia bears the burden of establishing error of law or an
abuse of discretion. See State v. Cowles, 207 Ariz. 8, 9 ¶ 3 (App. 2004). Garcia
has failed to meet this burden. In his October 1996 plea, Garcia waived his
right to a jury trial and was informed that he could be sentenced to up to 10
years on the attempt counts. The plea was made knowingly, voluntarily
and intelligently, and Garcia has provided no grounds to challenge that
plea.

¶8 Similarly, Garcia was sentenced to presumptive prison terms,
not terms greater than presumptive, a fact his arguments do not appear to
acknowledge. Because the presumptive sentences were within the statutory
range, and Garcia waived his jury trial rights, he has shown no error of law
or abuse of discretion, lack of constitutionally required notice or ineffective
assistance of counsel.

¶9 Garcia takes issue with the court’s weighing the aggravating
circumstances, believing without their consideration, he would be entitled
to a lesser sentence. Specifically, Garcia contends that the court should not
have weighed any aggravating circumstances, especially harm to the
victim, because no evidence was presented and “the state never alleged any
aggravators on the record or by pleading, thus it is unclear how the court
assumed a prosecutorial role and alleged a harm or what type of harm.”
However, factors that could be considered aggravating, such as the harms
alleged in the probation violation report, were presented to the judge, who
had discretion to weigh all relevant factors. Accordingly, this assertion by
Garcia provides no basis for relief.

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 STATE v. GARCIA
Decision of the Court

¶10 For these reasons, this court grants review but denies relief
because Garcia failed to demonstrate that the superior court abused its
discretion by summarily dismissing his petition for post-conviction relief.

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

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