State v. Quintero

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSE PRECIALIANO QUINTERO, Petitioner.

No. 1 CA-CR 24-0035 PRPC
FILED 07-18-2024

Petition for Review from the Superior Court in Maricopa County
No. CR2008-031287-001
The Honorable Michael W. Kemp, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Faith Cheree Klepper
Counsel for Respondent

The Stavris Law Firm PLLC, Scottsdale
By Christopher Stavris
Counsel for Petitioner
 STATE v. QUINTERO
Decision of the Court

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Andrew M. Jacobs and Judge Jennifer M. Perkins joined.

W E I N Z W E I G, Judge:

¶1 Jose Quintero appeals the dismissal of his petition for post-
conviction relief. For the reasons below, we grant review and deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 Quintero was 16 years old when a jury convicted him of
kidnapping, first-degree murder and sexual assault. Quintero moved to
exclude from trial his statements to police as involuntary, but the superior
court denied that motion.

¶3 At sentencing in 2010, Quintero introduced a memorandum
recounting his dysfunctional childhood, substance abuse, mental health
challenges and desire for rehabilitation. The memorandum emphasized the
difference between juvenile and adult offenders, relying on scientific
literature and case law.

¶4 The superior court sentenced Quintero to life with the
possibility of parole after 25 years for the murder count and aggravated,
consecutive terms on the remaining counts, totaling an additional 23.5
years. The court found Quintero’s age was a mitigating factor and the jury
found four aggravating factors.

¶5 Quintero timely appealed his convictions. His appellate
counsel filed an Anders brief after finding no non-frivolous questions of law
to raise. We reviewed the record for fundamental error and found none.
State v. Quintero, 1 CA-CR 11-0001, 2012 WL 3580519, at *1, ¶ 2 (Ariz. App.
Aug. 21, 2012) (mem. decision). We affirmed the denial of Quintero’s
voluntariness motion because the trial court held a hearing and the record
supported the court’s findings. Id. at *3, ¶¶ 19–20.

¶6 Quintero petitioned for post-conviction relief (“PCR”). He
raised four arguments: (1) ineffective assistance of appellate counsel, (2) the
trial court erred by denying his voluntariness motion, (3) a significant
change in the law occurred, and (4) his sentence violated the Eighth

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Amendment of the U.S. Constitution. U.S. Const. amend. VIII. The court
summarily dismissed his petition. He timely appealed.

DISCUSSION

¶7 We review the denial of a petition for post-conviction relief
for an abuse of discretion, State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012),
and constitutional issues de novo, State v. Pandeli, 242 Ariz. 175, 180, ¶ 4
(2017). A defendant is entitled to relief if he presents a colorable claim by
“alleg[ing] facts which, if true, would probably have changed the verdict or
sentence.” State v. Amaral, 239 Ariz. 217, 220, ¶ 11 (2016).

I. Ineffective Assistance of Counsel

¶8 Quintero first argues he had ineffective assistance of appellate
counsel because his attorney failed on direct appeal to challenge the denial
of his voluntariness motion. For starters, Quintero’s Rule 32.1(a) claims are
untimely by 4.5 years. See Ariz. R. Crim. P. 32.4(b)(3)(A). Quintero claimed
he was not informed of his PCR rights by his counsel, but neither the court
nor the State addressed the timeliness issue on appeal. See Ariz. R. Crim. P.
32.4(b)(3)(D) (excusing an untimely notice after an adequate explanation).

¶9 A defendant who claims ineffective assistance of appellate
counsel must show two elements: (1) appellate counsel’s performance fell
below objectively reasonable standards, and (2) absent the deficient
performance, the outcome on appeal would have been different. Strickland
v. Washington, 466 U.S. 668, 687 (1984); State v. Febles, 210 Ariz. 589, 595–96,
¶ 18 (App. 2005).

¶10 Quintero proves neither element. First, he cannot show his
appellate counsel acted unreasonably. Appellate counsel reviewed the
record and found no arguable issues for appeal. This court too reviewed
the record and found it raised no arguable issues for appeal related to
Quintero’s statements to police. Quintero, 1 CA-CR 11-0001, at *3, ¶ 20.

¶11 Second, Quintero cannot show fundamental error or
prejudice. He argues the trial court was required to hold an evidentiary
hearing, but he points to no statute or case law in support, and criminal
defendants are only guaranteed a fair hearing, A.R.S. § 13-3988(A), which
Quintero received.

¶12 Moreover, Quintero’s argument that the trial court would
have ruled differently after an evidentiary hearing is speculative and
uncolorable. State v. McDaniel, 136 Ariz. 188, 198 (1983) (explaining the

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Decision of the Court

burden of proof requires defendant to present evidence of a provable
reality, not mere speculation).

II. Voluntariness of Statements to Police

¶13 The court found Quintero was precluded from challenging
the voluntariness of statements he made to police. We agree because
Quintero’s claim was “finally adjudicated on the merits in an appeal,” Ariz.
R. Crim. P. 32.2(a)(2). And the record supported the trial court’s findings,
so there was no fundamental error. Quintero, 1 CA-CR 11-0001, at *3, ¶ 20.

¶14 Quintero also argues the court impermissibly shifted the
burden of proof to him by denying the voluntariness motion. Not so. The
court correctly identified the burden of proof in a post-conviction relief
proceeding—Quintero must show the allegations in the petition raise a
colorable claim by a preponderance of the evidence. Ariz. R. Crim. P.
32.13(c). The court found Quintero failed to raise a colorable claim because
“no additional evidence has been presented to support a finding that . . .
would lead to a different outcome.”

III. No Significant Change in the Law

¶15 Quintero contends that Miller v. Alabama, 567 U.S. 460 (2012),
significantly changed the law on how a judge should consider a juvenile
offender’s youth at sentencing.

¶16 A significant change in the law “requires some transformative
event, a clear break from the past.” State v. Shrum, 220 Ariz. 115, 118, ¶ 15
(2009) (citation omitted). Miller held “’only that a sentencer follow a certain
process—considering an offender’s youth and attendant characteristics—
before imposing’ a life-without-parole sentence.” See Jones v. Mississippi, 593 U.S. 98, 98 (2021) (quoting Miller, 567 U.S. at 483).

¶17 We discern no transformative break from the past. Miller
recognized that juveniles are less mature, more vulnerable to peer pressure,
and their character is not well-formed. 567 U.S. at 471–72. But that
description is not new. See Roper v. Simmons, 543 U.S. 551, 569–70, 73 (2005);
see also Graham v. Florida, 560 U.S. 48, 72–75 (2010). And here, the superior
court recognized Quintero’s age as a mitigating factor and exercised its
discretion to impose the lesser of two sentences.

¶18 Quintero also argues it was impossible for the trial court to
properly consider his youth because he was sentenced before Miller, but the

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Arizona Supreme Court disagrees. State ex rel. Mitchell v. Cooper, 256 Ariz
1, 13, ¶ 39 (2023).

IV. Eighth Amendment

¶19 Lastly, Quintero argues that a de facto life sentence violates a
juvenile’s Eighth Amendment rights. U.S. Const. amend. VIII. But our
supreme court has held that courts may sentence a juvenile to a de facto life
sentence by imposing consecutive sentences for separate crimes. State v.
Soto-Fong, 250 Ariz. 1, 12, ¶ 50 (2020). That happened here.

CONCLUSION

¶20 We grant review and deny relief.

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

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