State v. Mayo

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HERCELYN ROBERT MAYO, Petitioner.

No. 1 CA-CR 25-0254 PRPC
FILED 01-28-2026

Petition for Review from the Superior Court in Maricopa County
No. CR2023-102775-001
The Honorable Kerstin G. LeMaire, Judge

REVIEW GRANTED; RELIEF DENIED

APPEARANCES

Hercelyn Robert Mayo, Eloy
Petitioner
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Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision, in which
Presiding Judge Daniel J. Kiley and Judge Cynthia J. Bailey joined.

W I L L I A M S, Judge:

¶1 Petitioner Hercelyn Robert Mayo seeks review of the superior
court’s order dismissing his petition 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 deny
relief.

FACTUAL AND PROCEDURAL HISTORY

¶2 The State charged Mayo with first-degree premeditated
murder, a class one dangerous felony and domestic violence offense,
alleging he killed his wife (“the victim”). The State also alleged numerous
aggravating circumstances and that Mayo had prior felony convictions.

¶3 Mayo pled guilty to second-degree murder, a class one
dangerous felony and domestic violence offense. As part of the plea
agreement, the State dismissed its allegation that Mayo had prior felony
convictions and avowed not to file a weapons charge against him. Subject
to court approval, the plea agreement also established the sentencing range:
“The Defendant shall be sentenced to the Arizona Department of
Corrections for a term of no less than twenty (20) calendar years and no
more than twenty-five (25) calendar years.” The superior court sentenced
Mayo to a maximum term of twenty-five years’ imprisonment.

¶4 Mayo timely petitioned for post-conviction relief. As a
threshold matter, he challenged the presiding superior court judge’s
assignment of his petition to the sentencing judge. He also alleged the
sentencing judge violated his due process rights by permitting the
presentation of “overly emotional and dramatic” victim impact evidence at
sentencing.

¶5 Determining “it is appropriate” for sentencing judges “to
handle the post-conviction relief petitions for cases they sentenced,” the
sentencing judge rejected Mayo’s procedural challenge. The sentencing
judge also denied Mayo’s due process claim, explaining the State’s

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sentencing presentation “w[as] not inflammatory or overly sentimental”
and, regardless, it did not prejudice Mayo because the court “carefully
weighed” the mitigating and aggravating factors and determined
imposition of the maximum sentence was warranted. For these reasons, the
court dismissed Mayo’s petition for post-conviction relief.

¶6 Mayo timely petitioned this Court for review. We grant
review under Article 6, Section 9 of the Arizona Constitution, A.R.S.
§ 13-4239(C), and Rule 33.16.

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).
“An abuse of discretion occurs if the PCR court makes an error of law or
fails to adequately investigate the facts necessary to support its decision.”
State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017). The petitioner bears the burden
of establishing such an abuse. See State v. Poblete, 227 Ariz. 537, 538, ¶ 1
(App. 2011).

¶8 Consistent with his petition for post-conviction relief, Mayo
argues the sentencing judge erroneously: (1) presided over his PCR
proceeding, and (2) permitted the presentation of victim impact evidence at
sentencing. On review, Mayo also contends, for the first time, that: (1) his
sentencing counsel was ineffective, and (2) the sentencing judge violated
his constitutional rights by failing to maintain order and decorum at
sentencing, demonstrating bias, permitting the victim’s family members to
threaten him in open court, discussing unspecified civil matters during the
criminal proceeding, and permitting the discussion of unproven
accusations. Additionally, in his petition for review, Mayo makes a fleeting
reference to PCR counsel, challenging the attorney’s effectiveness, without
offering any explanation, argument, or citation. Finally, in his response in
support of his petition for review, Mayo argues, for the first time, that the
prosecutor engaged in misconduct by advocating on behalf of the victim’s
family and alleging a prior felony for which he was never convicted.

¶9 A petition for review may only raise issues first presented in
the superior court. State v. Ramirez, 126 Ariz. 464, 467-68 (App. 1980)
(applying a waiver analysis to “issues first presented in a petition for
review” because the superior court “obviously never” had the opportunity
to meaningfully consider the alleged errors); see also State v. Bortz, 169 Ariz.
575, 578 (App. 1991) (applying waiver to claims that could “have been
previously raised” in a petition for post-conviction relief but were not

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preserved). Likewise, a petitioner waives any issue not raised in the petition
for review. Ariz. R. Crim. P. 33.16(c)(4) (“A party’s failure to raise any issue
that could be raised in the petition for review or cross-petition for review
constitutes a waiver of appellate review of that issue.”); cf. State v. Lopez, 223
Ariz. 238, 240, ¶¶ 6–7 (App. 2009) (holding waiver analysis applies with
equal force to “Rule 32 proceedings” and petitioner waived “entirely new
claims of ineffective assistance of counsel” raised for the first time in a reply
brief). Such waiver extends to any claim for which the petitioner fails to
develop an argument “in any meaningful way.” State v. Stefanovich, 232
Ariz. 154, 158, ¶ 16 (App. 2013); see also State v. Bolton, 182 Ariz. 290, 298
(1995) (holding the failure to offer argument sufficient for appellate review
waives a claim); Ariz. R. Crim. P. 31.10(a)(7)(A) (stating an appellant’s brief
shall include “appellant’s contentions with supporting reasons for each
contention, and with citations of legal authorities and appropriate
references to the portions of the record on which the appellant relies”).
Accordingly, on review, we consider only the claims both preserved in the
underlying petition for post-conviction relief and raised and developed in
the petition for review.

I. Petition for Post-Conviction Relief Assigned to Sentencing
Judge

¶10 In his petition for post-conviction relief, Mayo challenged the
assignment of his petition to the sentencing judge, arguing she would
“naturally [] be less objective” when “her own alleged errors [we]re at
issue” and “presumably [would] still [operate] under [an] incorrect
understanding” of the law. Although Mayo maintains the sentencing judge
should not have presided over his Rule 33 proceedings, he reframes his
argument in the petition for review. Pointing to a complaint he filed against
the sentencing judge, alleging she failed to properly preside over her
courtroom and instead allowed for a “circus like atmosphere,” Mayo
contends “she should have recused herself” from the Rule 33 proceedings.

¶11 Pursuant to Rule 33.10(a), “[t]he presiding judge must, if
possible, assign a proceeding for post-conviction relief to the sentencing
judge.” To the extent Mayo contends his filing of a judicial complaint
compelled the sentencing judge to recuse herself, we take judicial notice
that the Commission on Judicial Conduct dismissed the complaint as
unsubstantiated (on May 24, 2024) before Mayo petitioned for
post-conviction relief (on December 20, 2024). See Ariz. R. Evid. 201(b), (c)
(authorizing a court, on its own volition, to “judicially notice a fact that is
not subject to reasonable dispute because it . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably be

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questioned”). On this record, Mayo has failed to establish the sentencing
judge was obliged to recuse herself or that the assignment of his petition to
the sentencing judge was otherwise improper.

II. Presentation of Victim Impact Evidence

¶12 As more thoroughly outlined in his petition for post-
conviction relief, Mayo challenges the presentation of victim impact
evidence at the sentencing hearing. He contends “a slideshow”—that
included “photos of the victim[,] of mourners at her funeral, and of a baby
grandchild”—together with “highly charged victim testimony”—that
included one surviving family member threatening to “seek revenge” on
Mayo and other survivors opining that he should be sentenced to death—
“rendered the proceeding fundamentally unfair.” In his petition for review,
Mayo also asserts the sentencing judge should have precluded the
presentation of the victim impact evidence because the State did not
disclose it to the defense before the hearing.

¶13 Because Mayo did not object to the victim impact evidence at
sentencing, we review only for fundamental error. State v. Rose, 231 Ariz.
500, 510, ¶ 43 (2013). We will uphold the admission of victim impact
evidence at sentencing “unless it is so unduly prejudicial that it renders”
the sentencing procedure “fundamentally unfair.” Id. at ¶ 45 (citation
modified).

¶14 As a preliminary matter, we note that a “victim’s statement is
not subject to disclosure to the state or the defendant or submission to the
court.” A.R.S. § 13-4426.01. The defense, however, must “be afforded the
opportunity to explain, support or deny the victim’s statement.” Id. In this
case, the sentencing hearing transcript clearly reflects that the sentencing
judge granted the defense ample time to respond to the victim impact
evidence.

¶15 Turning to the challenged photographs, “[t]here is no simple,
mechanical test to determine when [victim impact evidence] crosses the line
between permissible and unduly prejudicial.” Rose, 231 Ariz. at 510, ¶ 46.
Because jurors may be influenced by “passion, prejudice, public opinion, or
public feeling” or “swayed by mere sympathy,” our supreme court has
cautioned “judges, in their sound discretion, to screen and, if necessary,
limit an orchestrated, overly dramatic [victim impact evidence]
presentation.” Id. at 510–11, ¶¶ 46–47. The supreme court declined,
however, “to adopt a per se rule barring all in-life photos,” deferring to the

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superior court’s determination whether “photographs will incite the jurors’
passions.” Id. at 511, ¶ 50 (citation omitted).

¶16 In this case, the sentencing judge, not jurors, heard and
viewed the presentation of the victim impact evidence. While photographs
may engender emotion and sympathy, Mayo has not demonstrated the
sentencing judge abused her discretion, much less committed fundamental
error, by permitting the presentation of the photographs of the victim in life
and of her survivors at her funeral. See id. at 511–12, ¶¶ 50–52 (concluding
the trial court did not abuse its discretion by permitting the presentation of
photographs of the murder victim’s young sons “looking down into the
grave as his casket was lowered” and “sitting on a bench by the
gravesite”: “After all, the jury was well aware, without the photographs,
that the murder caused the two boys to suffer a devasting loss of their
father’s love, affection, and support for the rest of their lives.”).

¶17 Next, we consider the survivors’ testimony concerning
sentencing. The survivors of a murder victim may present information
about the victim and the impact of the murder on the victim’s family at a
sentencing hearing. See Ariz. Const. art. 2, § 2.1(A)(4); A.R.S. § 13-4426.
“[T]he State has a legitimate interest in counteracting the mitigating
evidence which the defendant is entitled to put in, by reminding the
sentencer that just as the murderer should be considered as an individual,
so too the victim is an individual whose death represents a unique loss to
society and in particular to his family.” Payne v. Tennessee, 501 U.S. 808, 825
(1991) (citation modified); see also State v. Ellison, 213 Ariz. 116, 140–41,
¶ 111 (2006) (citation modified) (concluding victim impact “statements are
relevant to the issue of the harm caused by the defendant . . . [and] do not
violate the Eighth Amendment”). The victim’s survivors may not, however,
offer any opinion on an appropriate sentence to a jury. Ariz. R. Crim. P.
19.1(e)(3) (authorizing a victim’s survivors to make statements “relating to
the victim’s characteristics and the crime’s impact on the victim’s family”
during the penalty phase of a trial but precluding survivors from “offer[ing]
any opinion or recommendation about an appropriate sentence”).

¶18 At the sentencing hearing, several of the victim’s relatives
addressed the sentencing judge and Mayo. One of the victim’s sons spoke
of his high regard for the victim, the important role she played in the family,
and the years of physical abuse Mayo inflicted on her. During this
emotional colloquy, he stated: “I only speak for myself—but I would say—
I would reject the plea. We don’t like that. You go to trial. You killed my
mom. Your life should be over.” Another son similarly spoke of his love for
the victim and the impact of her death. He also echoed his brother’s

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perspective on sentencing: “You know, I wish he can get life for what he
did. He doesn’t deserve to see the light of day . . . . To me, he deserves the
death penalty, you know. A life for a life. . . . I just want to see him get the
max that he can get.” The victim’s cousin likewise repeatedly asked the
court to impose the maximum sentence: “I would just ask that whatever the
max penalty be is what he gets.” In addition, the victim’s brother intimated
that he would exact revenge if Mayo were ever released from prison, stating
Mayo “deserves no less than what he gave [the victim].” Finally, the
victim’s mother urged the sentencing judge to impose the maximum
penalty: “Twenty years is not enough. Twenty-five years is not enough. Life
is not enough.”

¶19 Without question, had these statements been presented to a
jury, they would have violated Rule 19.1(e)(3) and arguably been grounds
for a mistrial. Compare Rose, 231 Ariz. at 513, ¶¶ 57–58 (finding no
fundamental error from the statements of a murder victim’s widow, which
arguably spoke in “clear and understandable code” but did not “express[ly]
request” that the jury return a death sentence). But here, the statements
were presented only to the sentencing judge, who did not base her
sentencing determination on emotion or sympathy, but instead made
specific factual findings concerning the relevant mitigating and
aggravating factors. See State v. Williams, 183 Ariz. 368, 386 (1995) (holding,
“absent evidence to the contrary,” an appellate court presumes a trial judge
“is capable of focusing on the relevant sentencing factors and setting aside
the irrelevant, inflammatory, and emotional factors”). As reflected in the
hearing transcript, the sentencing judge found three mitigating factors—
Mayo accepted responsibility for the victim’s murder, experienced a “very
difficult childhood,” and “suffers from PTSD”—and five aggravating
factors—the deliberate nature of the crime, the inability of the victim to
protect herself, the failure to render aide, the extreme emotional harm
caused to the victim’s family, and the use a deadly weapon. On balance, the
sentencing judge found that each of the aggravating circumstances, alone,
warranted a “greater-than-presumptive sentence.” Considered together,
the sentencing judge determined the aggravating factors justified
imposition of the “maximum sentence.”

¶20 In sum, Mayo has not cited, and our review of the record has
not revealed, any evidence the sentencing judge imposed the maximum
sentence based on the photographs of the victim and her survivors or the
survivors’ statements advocating for the harshest possible penalty. Instead,
the record clearly reflects the sentencing judge made factual findings
concerning the aggravating and mitigating factors and, weighing those
factors, determined that on balance they justified the imposition of a

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twenty-five years’ sentence of imprisonment. On this record, Mayo has
failed to establish any fundamental, prejudicial error.

CONCLUSION

¶21 We grant review and deny relief.

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

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