State v. Campos

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANIEL CAMPOS, Petitioner.

No. 1 CA-CR 21-0214 PRPC
FILED 3-29-2022

Petition for Review from the Superior Court in Maricopa County
Nos. CR 2017-151875-001 and CR 2019-124969-001
The Honorable Richard J. Hinz, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED IN PART AND
GRANTED IN PART; REMANDED IN PART

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Respondent

Daniel Campos, Kingman
Petitioner
 STATE v. CAMPOS
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey, Judge Peter B. Swann and Judge D.
Steven Williams delivered the decision of the Court.

PER CURIAM:

¶1 Daniel Campos petitions this court for review from the
summary dismissal of his request for post-conviction relief (“PCR”) under
Arizona Rule of Criminal Procedure (“Rule”) 33. We have considered the
petition for review and, for the reasons stated, grant review and partial
relief, and remand case number CR2017-151875 (“2017 case”) for
resentencing.

FACTS AND PROCEDURAL HISTORY

¶2 In April 2018, Campos pled guilty in the 2017 case to one
count of failure to register as a sex offender, a class four felony. Consistent
with the plea agreement’s stipulations, the superior court suspended the
imposition of sentence and placed him on ten years of supervised
probation.

¶3 In July 2019, Campos pled guilty in case number CR2019-
124969 (“2019 case”) to one count of interference with monitoring devices,
a class four felony, and based on his guilty plea, the court further found he
had violated his probation grant in the 2017 case. The plea agreement
contained the following pertinent stipulations: (1) in the 2019 case, Campos
would serve a prison term between the minimum term of 1.5 years and the
maximum term of 3 years, see Arizona Revised Statutes (“A.R.S.”) section
13-702(D) (establishing sentencing ranges for a class four felony); (2) the
2019 case’s sentence would run consecutively to any prison term imposed
in the 2017 case; and (3) the State agreed to dismiss one count of second-
degree escape and not to allege his prior felony convictions and probationer
status for sentence-enhancement purposes.

¶4 At the sentencing and disposition hearing, the superior court
identified as aggravating circumstances (“aggravators”), inter alia,
Campos’s prior felony convictions; his age, noting his convictions “spanned
three to four different decades”; his previous prison terms; that he
committed a new offense while on probation; his prior probation violations;

2
 STATE v. CAMPOS
Decision of the Court

“the nature of the underlying offenses and the specific facts” of his prior
convictions; and in the 2017 case, the need to protect the community
because of his failure to comply with his probation conditions and the
resulting “risk of creating additional victims in the community.” The court
accepted as mitigating circumstances (“mitigators”) Campos’s age,
remorse, and traumatic childhood experiences. Finding the aggravators
outweighed the mitigators, the court sentenced Campos to 3 years’
imprisonment in the 2019 case and a consecutive aggravated prison term of
3.75 years in the 2017 case.

¶5 Campos timely filed a PCR notice, and the superior court
appointed counsel to represent him. After PCR counsel informed the court
that she could find no colorable PCR claim to pursue, Campos filed a PCR
petition in propria persona raising the following claims: (1) in both cases, the
court unlawfully sentenced him to greater-than-presumptive terms
because, he maintained, the sentences were not justified by proper
aggravators; (2) he received ineffective assistance of counsel because trial
counsel purportedly failed to advise him that at sentencing, the court could
consider as aggravators his prior felony convictions and probationer status
despite the State’s agreement not to enhance his sentence based on those
facts; (3) the court infringed on his due process rights by considering his
criminal history in imposing sentence; (4) the court lacked subject matter
jurisdiction to hear the 2019 case on the grounds that the electronic
monitoring requirement “was not valid under the law” and that § 13-3725,
the statute of conviction, was unduly vague; and (5) the court violated
Anders v. California, 386 U.S. 738 (1967), by “not requiring [PCR] counsel to
file . . . a brief referring to anything in the record that might arguably
support the appeal and that she believes the case to be wholly frivolous”
and by not independently “search[ing] the record for non-frivolous claims.”

¶6 We have jurisdiction over Campos’s appeal under Article 6,
Section 9 of the Arizona Constitution, A.R.S. § 13-4239(C) and Rule
33.16(a)(1).

DISCUSSION

¶7 On review, Campos repeats the claims he raised in the
superior court, arguing the court erred by finding he had not established a
colorable claim for relief. A defendant is entitled to an evidentiary hearing
only if the PCR petition presents a colorable claim, State v. D’Ambrosio, 156
Ariz. 71, 73 (1988), which is one that if true, would have probably changed
the verdict or sentence, State v. Kolmann, 239 Ariz. 157, 160, ¶ 8 (2016). We
will not disturb the superior court’s ruling unless the petitioner establishes

3
 STATE v. CAMPOS
Decision of the Court

an abuse of discretion. State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011).
We address Campos’s claims in turn.

I. Illegal Sentences

¶8 Campos first contends the superior court illegally sentenced
him in both cases. See Ariz. R. Crim. P. 33.1(c). As he did in the superior
court, he asserts (1) insufficient aggravators supported his greater-than-
presumptive sentences; (2) the court erred by considering his criminal
history in imposing his sentences, given that the State had agreed not to
enhance his sentences based on his prior felony convictions and probationer
status; (3) and the State breached the plea agreement by “alleging [his] prior
felony convictions and that he was on probation at the time of the offense,
and facts related to those [factors].”

A. Insufficient Aggravators

¶9 Section 13-701(D) explicitly enumerates 26 aggravators that
courts may use to increase a defendant’s sentence, including a prior felony
conviction within the ten years immediately preceding the date of the new
offense. A.R.S. § 13-701(D)(11). Section 13-701(D)(27) provides the so-called
“catch-all” provision, authorizing the trier of fact to consider “[a]ny other
factor that the [S]tate alleges is relevant to the defendant’s character or
background or to the nature or circumstances of the crime.” Courts may
impose the maximum prison term only if one or more aggravators have
been found or admitted, and a sentence to the aggravated term must be
supported by two or more aggravators. A.R.S. § 13-701(C); State v. Allen, 248
Ariz. 352, 368, ¶ 62 (2020). Courts are prohibited from imposing a greater-
than-presumptive sentence based solely on “catch-all” aggravators, but
once one of the enumerated aggravators have been properly identified,
courts are then free to use the “catch-all” provision “to impose a sentence
up to the statutory maximum.” State v. Bonfiglio, 231 Ariz. 371, 373, ¶¶ 9-10
(2013).

¶10 Applying those principles here, the maximum sentence in the
2019 case was justified because the superior court properly found one
enumerated aggravator: Campos’s felony conviction (the 2017 case) within
ten years of his new offense. See A.R.S. § 13-701(D)(11). Having found an
enumerated aggravator, the court thus permissibly considered additional
“catch-all” aggravators in imposing his sentences. To the extent Campos
asks us to reweigh those aggravators and mitigators, we will not do so. State
v. Harvey, 193 Ariz. 472, 477, ¶ 24 (App. 1998).

4
 STATE v. CAMPOS
Decision of the Court

¶11 Turning to the 2017 case, however, the superior court did not
find any enumerated aggravator and was therefore prohibited from
increasing Campos’s sentence beyond the presumptive term. Because the
court impermissibly relied solely on “catch-all” factors to sentence Campos
to the aggravated term, he is entitled to relief under Rule 33.1(c);
consequently, the court abused its discretion in dismissing that claim.
Accordingly, we vacate Campos’s sentence in the 2017 case and remand the
matter for resentencing. See State v. Ojeda, 159 Ariz. 560, 561 (1989) (“In the
sentencing context, if the judge relies on inappropriate factors . . . the case
must be remanded for resentencing.”).

B. Campos’s Additional Sentencing Claims

¶12 Campos’s remaining challenges to his sentences lack merit.
First, despite his contrary assertion, courts may consider as aggravators a
defendant’s prior felony convictions and probationer status even when the
State has stipulated in a plea agreement not to apply those facts for
sentence-enhancement purposes. See State v. Jackson, 130 Ariz. 195, 196
(App. 1981) (holding dismissal of a prior conviction allegation in a plea
agreement did not preclude the sentencing judge from considering that
conviction as an aggravator); see also State v. Shattuck, 140 Ariz. 582, 584 n.1
(1984) (collecting cases and explaining “the sentencing judge [may] impose
an aggravated sentence based on prior conduct even if a conviction for that
conduct has not been alleged”). Stated differently, Campos erroneously
conflates the sentence-enhancement scheme with the statutory provisions
permitting a court to increase or decrease a sentence within a specified
range. Compare A.R.S. § 13-703 (enhancing sentences for repetitive
offenders), and A.R.S. § 13-708 (enhancing sentences for offenses committed
while a defendant was released from confinement) with A.R.S. § 13-701(C)
(authorizing the maximum sentence upon finding one or more
aggravators), and A.R.S. § 13-702(B) (authorizing, inter alia, the aggravated
sentence for first-time offenders under § 702(D) upon finding two or more
aggravators).

¶13 Equally unavailing are Campos’s arguments that the superior
court improperly considered felony convictions that were more than ten
years old and impermissibly relied on “catch-all” aggravators not alleged
by the State. Although § 13-701(D)(11) requires the superior court to
consider any felony conviction within the ten years immediately preceding
the new offense, nothing in the statute prohibits the court from considering
older felony convictions under the “catch-all” provision. State v. Romero, 173
Ariz. 242, 243 (App. 1992); see also A.R.S. § 13-701(F) (“If the trier of fact finds
at least one aggravating circumstance, the trial court may find by a

5
 STATE v. CAMPOS
Decision of the Court

preponderance of the evidence additional aggravating circumstances.”).
Further, courts do not err by sua sponte finding aggravators that the State
“had neither alleged nor attempted to separately prove.” State v. Marquez, 127 Ariz. 3, 5-6 (App. 1980); see also Shattuck, 140 Ariz. at 584 n.1; State v.
Williams, 134 Ariz. 411, 413-14 (App. 1982) (permitting courts to consider a
defendant’s criminal history and criminal character in imposing a
sentence). Therefore, Campos has not shown the superior court erred in
considering the challenged aggravators.

II. Lack of Subject Matter Jurisdiction

¶14 The superior court correctly rejected Campos’s assertion that
the court lacked subject matter jurisdiction to hear the 2019 case. See Ariz.
R. Crim. P. 33.1(b). “[T]he existence of subject matter jurisdiction is
determined by the general nature of the charge contained in the complaint.”
State v. Foster, 191 Ariz. 355, 357, ¶ 6 (App. 1998) (citation and quotation
marks omitted). The Arizona Constitution confers “original jurisdiction”
to the superior court to adjudicate felony offenses. Ariz. Const. art. 6,
§ 14(4); see State v. Maldonado, 223 Ariz. 309, 311, ¶ 14 (2010) (“‘[S]ubject
matter jurisdiction’ refers to a court’s statutory or constitutional power to
hear and determine a particular type of case.”). Thus, once the State filed a
direct complaint initiating a prosecution against Campos for felony offenses
committed in Arizona, the superior court thereafter properly exercised its
jurisdiction over the criminal proceedings. Campos does not argue, let
alone demonstrate, otherwise.

¶15 Moreover, Campos mischaracterizes his claim as one relating
to subject matter jurisdiction under Rule 33.1(b). His claim instead
constitutes a constitutional challenge to § 13-3725, which he waived by
pleading guilty, along with all other constitutional challenges to the
resulting conviction. See State v. Leyva, 241 Ariz. 521, 527, ¶ 18 (App. 2017)
(noting that pleading guilty waives constitutional defects and defenses
except those relating to the plea’s validity); see also State v. Crocker, 163 Ariz.
516, 517 (App. 1990) (“[A] challenge to the constitutionality of a statute is a
nonjurisdictional defense.”). We further note that he provides no authority,
and we find none, supporting the proposition that § 13-3725 is
unconstitutional. See State v. Stefanovich, 232 Ariz. 154, 158, ¶ 16 (App. 2013)
(holding appellant waived claim on review for insufficient argument and
failure to cite supporting legal authority). He has thus not shown an abuse
of discretion.

6
 STATE v. CAMPOS
Decision of the Court

III. IAC Claim

¶16 Campos next argues he received ineffective assistance of
counsel (“IAC”) because trial counsel did not advise him that the superior
court could consider his prior felony convictions and probationer status
when imposing his sentences, further asserting he would have rejected the
State’s plea offer and proceeded to trial had he been so informed. 1 See Ariz.
R. Crim. P. 33.1(a). To establish a colorable IAC claim, the defendant “must
show both that counsel’s performance fell below objectively reasonable
standards and that this deficiency prejudiced the defendant.” State v.
Bennett, 213 Ariz. 562, 567, ¶ 21 (2006). “To be colorable, the claim must
have the appearance of validity, a determination that the trial court is in a
better position to make than this court.” State v. Boldrey, 176 Ariz. 378, 380
(App. 1993). A claim has the appearance of validity if the appellant’s
contentions, taken as true, successfully show ineffective assistance of
counsel. State v. Suarez, 23 Ariz. App. 45, 46 (1975).

¶17 In the PCR petition, Campos supported his IAC claim by
attaching his own affidavit stating that he “was not aware that the court on
its own may still find [his prior felony convictions and probationer status
as] aggravating factors to increase [his] sentences in spite of the [S]tate’s
promise not to allege those very aggravating factors” and that he would not
have pled guilty had he been so aware. When evaluating whether an IAC
claim is colorable, although a court must accept as true the facts alleged in
a petitioner’s affidavit, a petitioner’s self-serving assertions do not bind the
court, particularly when the record does not substantiate the allegations.
See, e.g., State v. Goswick, 142 Ariz. 582, 585 (1984) (explaining averments in
the petitioner’s “self-serving affidavit” did not alone provide a “sufficient
factual basis” to support his IAC claim); see also State v. Wilson, 179 Ariz. 17,

1 Campos did not raise an IAC claim based on trial counsel’s failure to
object to the superior court’s imposition of an aggravated sentence based
solely on “catch-all” aggravators; therefore, he has waived any such claim.
See Ariz. R. Crim. P. 33.2(a)(3) (precluding petitioner from obtaining relief
on a constitutional claim waived in a previous PCR proceeding); State v.
Spreitz, 202 Ariz. 1, 2, ¶ 4 (2002) (precluding successive IAC claims when
they were, or could have been, raised in a prior PCR proceeding); see also
Ariz. R. Crim. P. 33.16(c)(2)(B) (limiting review to “issues the trial court
decided”); State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988) (reviewing court
will not consider even meritorious issues that were not first presented to
the superior court).

7
 STATE v. CAMPOS
Decision of the Court

20 (App. 1993) (finding the petitioner’s own affidavit was insufficient to
overcome inference of waiver).

¶18 Here, Campos has not carried his burden of demonstrating
the superior court abused its discretion in concluding the record did not
sufficiently support his allegations to require an evidentiary hearing. As
the court explained in its dismissal order, the record reflects that during the
change-of-plea colloquy, Campos acknowledged that he had “read [the]
plea agreement in its entirety and that [he] understood its contents,” that
he had “discussed [the] plea agreement with [his] attorney,” and that his
attorney had “answered all of [his] questions.” See State v. Hamilton, 142
Ariz. 91, 93 (1984) (entitling courts to rely on a defendant’s responses at the
change-of-plea hearing in determining whether a defendant knowingly,
voluntarily, and intelligently entered a guilty plea). Furthermore, at the
beginning of the sentencing hearing, the superior court noted that it had
“reviewed a copy of the presentence report, the State’s written
recommendation, the Defendant’s criminal history and the plea agreement
in the new case.” Nevertheless, when Campos later gave his allocution, he
made no inquiry into, much less protest, the court’s consideration of his
criminal history. And after the court explicitly found—without objection—
that his prior felony convictions and probationer status constituted
aggravators, he sought no clarification regarding the propriety of the
court’s reliance on those facts.

¶19 Absent some showing in the record to support Campos’s
averments in his affidavit, his IAC claim does not have the required
appearance of validity. See Suarez, 23 Ariz. App. at 46; Boldrey, 176 Ariz. at
380; see also State v. Pritchett, 27 Ariz. App. 701, 703 (1976) (“A defendant’s
mistaken subjective impressions gained from discussions with his lawyer,
absent substantial objective evidence showing such impressions to be
reasonably justified, do not constitute sufficient grounds upon which to set
aside his guilty plea.”). The superior court therefore reasonably rejected his
claim that due to ineffective assistance, he lacked the information necessary
to make a knowing and intelligent decision to plead guilty. See State v.
Borbon, 146 Ariz. 392, 399-400 (1985) (explaining courts need not conduct an
evidentiary hearing based on mere generalizations and unsubstantiated
IAC claims). Because Campos has failed to overcome the strong
presumption that trial counsel rendered effective assistance, Kolmann, 239
Ariz. at 160, ¶ 10, his IAC claim does not warrant relief.

8
 STATE v. CAMPOS
Decision of the Court

IV. Anders Claim

¶20 Finally, we reject Campos’s contention that the superior court
violated Anders, given that defendants are not entitled to Anders-type
reviews in Arizona PCR proceedings. State v. Chavez, 243 Ariz. 313, 317,
¶ 12 (App. 2017). PCR counsel was thus not required to file an Anders brief
in Campos’s case, nor was Campos “entitled to a review of the record by
the superior court for arguable issues.” Chavez, 243 Ariz. at 314, ¶ 1.

CONCLUSION

¶21 For these reasons, we grant review, and grant partial relief by
vacating Campos’s sentence in the 2017 case and remanding that case to the
superior court for resentencing in accordance with this decision. We
otherwise deny relief.

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

9