State v. Gonzales

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DOMINGO GONZALES, Petitioner.

No. 1 CA-CR 24-0539 PRPC
FILED 12-16-2025

Petition for Review from the Superior Court in Maricopa County
No. CR2011-151489-001
The Honorable Therese Ann Gantz, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

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

Maricopa County Office of the Legal Advocate, Phoenix
By Colin F. Stearns
Counsel for Petitioner

MEMORANDUM DECISION

Judge Andrew M. Jacobs delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge Michael S. Catlett joined.
 STATE v. GONZALES
Decision of the Court

J A C O B S, Judge:

¶1 Domingo Gonzales (“Gonzales”) petitions this court for
review from the dismissal of his petition for post-conviction relief filed
under Arizona Rule of Criminal Procedure (“Rule”) 33. For the reasons
stated below, we grant review of his petition but deny the relief he requests.

FACTUAL AND PROCEDURAL HISTORY

A. Gonzales Violates the Conditions of His Probation.

¶2 Gonzales pled guilty to four counts of attempted molestation
of a child and was sentenced to 10 years’ imprisonment on one count, and
the superior court “suspend[ed] imposition or execution of sentence and . . .
plac[ed] the defendant on” lifetime probation for the remaining three
counts. He was released from prison to probation in 2020.

¶3 In 2023, the State petitioned to revoke Gonzales’ probation.
At the probation revocation hearing, Gonzales admitted he violated the
condition that he not consume alcohol. Before the court accepted Gonzales’
admission, he confirmed he: had consumed no drugs, alcohol, or
medication in the past 24 hours; understood the rights he was waiving by
admitting a violation; and understood the court could reinstate him to
probation, impose up to a year of jail time, or sentence him to prison for 5
to 15 years on each count. After the court accepted Gonzales’ admission, it
moved immediately to disposition at defense counsel’s request.

¶4 The State informed the court that the Adult Probation
Department (“Probation”) was recommending reinstatement to probation
with the condition that Gonzales serve 120 days in jail. Gonzales asked the
court to reinstate him but to defer the jail time so he could seek treatment
at a sober living facility or, if it did not defer jail time, to give him an
opportunity for early release into a treatment program. After Gonzales
spoke, the State said it had just received additional information from
another prosecutor on the case, and was asking for 120 days of jail time up
front.

B. After Gonzales Addresses the Court, it Rejects the State’s
and Probation Department’s Recommendation to Reinstate
Gonzales’ Probation and Imposes a Thirty-Year Sentence.

¶5 The court asked Gonzales if he wished to speak and Gonzales
explained why he believed a sober living facility would help him more than
jail. After that, the court ordered reinstatement of Gonzales’ probation:

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THE COURT: Well, I appreciate that, but I am going to
remand you and sentence you to jail.

It is the finding of the Court the Defendant violated the terms
and conditions of probation Count 2, 3, and 5 in place on
5/4/2020. It is further ordered reinstating him into the
lifetime probation attaching intensive probation for the
dependency terms – pre-releasage terms.

As to Count 3, reinstating him into lifetime probation. It is
ordered attaching intensive probation for dependency terms,
pre-releasage terms.

¶6 But then Gonzales requested that he be sentenced to prison.
The court reminded Gonzales that a prison term would run thirty years.
The State recommended reinstating probation, which the court had already
ordered done, but with the condition of 120 days in jail. The court
reaffirmed, as Gonzales continued objecting to jail time, that it was
sentencing Gonzales to 120 days of jail:

THE DEFENDANT: Can you just do the prison?

THE COURT: You want to do prison on all three counts?

THE DEFENDANT: Yeah.

THE COURT: Do you --

THE DEFENDANT: Yup.

THE COURT: -- you’re facing –-

THE DEFENDANT: -- I -– I -–

THE COURT: -- ten years on each?

THE DEFENDANT: Yeah. Yeah.

[THE PROSECUTOR]: And just to put on the record, the
Defendant cannot reject probation --

THE COURT: Right.

[THE PROSECUTOR]: -- because this is lifetime probation,
and [the other prosecutor on the case] has a note that if

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revoked, the DCAC DOC terms must be consecutive to each
other and all others.

THE COURT: That’s 30 years, sir.

Do you want to be heard further, Ms. [Prosecutor]?

[THE PROSECUTOR]: Your Honor, the State’s
recommendation is to reinstate the lifetime probation with the
120 days jail, IPS sex offender series –-

THE COURT: Okay.

[THE PROSECUTOR]: -- abusage terms.

THE COURT: I’m going to reinstate you.

THE DEFENDANT: I don’t want it. I don’t want it.

THE COURT: I understand.

THE DEFENDANT: Give me the prison, please.

THE COURT: No. I am going to sentence him to four months
in jail.

¶7 Gonzales kept objecting to prison, and swore twice as he did,
prompting the court to warn him against outbursts and his counsel to
interject disapprovingly:

THE DEFENDANT: I don’t fucking want prison. I don’t want
jail. I want prison, man, please.

[DEFENSE COUNSEL]: Hey.

THE DEFENDANT: Please, send me to prison. I don’t want
jail. Please. Please. Please, Your Honor. Give me what you
have to give me, please. I did good for 57 days. I did good. I
was –- I’m still willing to do good, but –-

THE COURT: Okay. You understand on each count –-

THE DEFENDANT: I do understand.

THE COURT: -- it’s going to be –-

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THE DEFENDANT: I do understand.

THE COURT: -- consecutive.

THE DEFENDANT: I do understand. I do understand,
ma’am.

THE COURT: And you can’t have an outburst like that again.
Okay?

THE DEFENDANT: I’m sorry. I apologize.

[DEFENSE COUNSEL]: You’ve got to get a hold of
(indiscernible).

THE DEFENDANT: Well, I’m already a loser. What the fuck
you talking about?

[DEFENSE COUNSEL]: Keep it up.

THE DEFENDANT: I understand, ma’am.

¶8 The court then sentenced Gonzales to 30 years in prison:

THE COURT: All right. I just want to be clear. I’ve already
made a finding the Defendant violated terms and conditions
of probation. This is not a rejection. This is not –- the objection
is not allowed by law.

The defendant will be revoked, and it is ordered sentencing
him to the Department of Corrections for the presumptive
terms of ten years on Count 2; Count 3, ten years; Count 5, ten
years. They all shall run consecutive, to be followed by
community supervision.

Sir, you have 90 days to file for post-conviction relief. If you
have any questions, you can speak to your -–

THE DEFENDANT: No problem.

THE COURT: -- attorney. If you don’t have one, the Court
will appoint one for you.

THE DEFENDANT: No problem.

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¶9 Gonzales petitioned for post-conviction relief under Rules
33.1(a) and (c). He argued his sentences were double jeopardy and thus
void, because the court had already reinstated him to probation before it
imposed the prison terms. Gonzales also argued he received ineffective
assistance of counsel because his attorney did not object to the prison
sentences as violating double jeopardy and did nothing to mitigate
Gonzales’ irrational conduct. The superior court summarily dismissed the
petition.

¶10 Gonzales timely petitioned for review. We exercise our
discretion to grant review. See A.R.S. § 13-4239; Ariz. R. Crim. P. 33.16.

DISCUSSION

¶11 We review the superior court’s decision for an abuse of
discretion: here, either legal error or an inadequate investigation of the facts
needed to support the decision. State v. Pandeli, 242 Ariz. 175, 180 ¶ 4 (2017).

¶12 The superior court has broad discretion to revoke probation.
See State v. Smith, 112 Ariz. 416, 419 (1975) (“It is enough for the trial court
to have a ‘reason to believe’ that the individual is ‘violating the conditions
of his probation or engaging in criminal practices’ to revoke his probation.”
(quoting State v. Bates, 111 Ariz. 202, 204 (1974))). While broad, this
discretion is not unlimited and “does not allow capriciousness or
arbitrariness on the part of the trial court.” State v. Sanchez, 19 Ariz. App.
253, 254 (1973). The superior court can also abuse its discretion by “fail[ing]
to conduct an adequate investigation into the facts relevant to
sentencing[,]” including “all pertinent mitigating and aggravating
circumstances.” State v. Baum, 182 Ariz. 138, 140 (App. 1995) (quoting State
v. Blanton, 173 Ariz. 517, 519 (App. 1993)).

¶13 In his petition for review, Gonzales contends the court erred
by rejecting his double jeopardy claim. He also asserts that he received
ineffective assistance of counsel.

¶14 When a court imposes a lawful sentence in which the
defendant has a legitimate expectation of finality, the protection against
double jeopardy prevents the court from subsequently increasing that
sentence. Stone v. Godbehere, 894 F.2d 1131, 1135 (9th Cir. 1990) (citing United
States v. DiFrancesco, 449 U.S. 117, 139 (1980)). Under Arizona law, double
jeopardy is implicated when the sentencing judge increases a lawful
sentence after pronouncing it. See State v. Wheeler, 108 Ariz. 338, 341 (1972)
(holding the court placed the defendant in double jeopardy by attempting
to increase a lawful, previously pronounced sentence after the defendant

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hit his attorney in court); State v. Fayle, 134 Ariz. 565, 573, 581–82 (App. 1982)
(holding the court placed the defendant in double jeopardy by attempting
to increase a lawful, previously pronounced sentence after the defendant
made comments hostile to the victim).

¶15 But this was not a sentencing proceeding – it was a probation
revocation proceeding. State v. Broman, 228 Ariz. 302, 303 ¶ 4 (App. 2011)
(“[T]he substantive and procedural rights involved in criminal trials are
markedly different [from] those in probation proceedings.”). That
difference is critical. The superior court did not violate Gonzales’ double
jeopardy rights because jeopardy did not attach here. See id. at 304 ¶ 6 (“In
a probation revocation proceeding, [] a defendant’s double jeopardy rights
are not implicated. This is because the proceeding does not create a risk of
conviction and therefore does not place a probationer in jeopardy within
the meaning of the constitution.”).

¶16 Gonzales’ double jeopardy theory also fails because the
court’s order reinstating his probation wasn’t a sentence. State v. Witt, 19
Ariz. App. 440, 441 (1973) (“A sentence is not in fact imposed until after
probation is revoked.”). It was instead an affirmation that the court was
suspending his sentence. Only when the superior court revoked Gonzales’
probation, see Paragraph 8, supra, did it finally impose a sentence. Because
this was the court’s first and only pronouncement of sentence, it does not
offend principles of double jeopardy.

¶17 Gonzales also asserts an ineffective assistance of counsel
claim in connection with the sentence imposed at his probation revocation
hearing. See Ariz. R. Crim. P. 33.16(c)(4). But because he did not develop
the issue, we expressly disclaim any view as to the potential merits of any
ineffective assistance of counsel claims in connection with this matter, and
relatedly, express no view as to whether the superior court abused its
discretion in imposing its sentence. See Baum, 182 Ariz. at 140.

CONCLUSION

¶18 For the foregoing reasons, we grant review but deny relief.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR
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