State v. Holmes

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARK STEVEN HOLMES, Petitioner.

No. 1 CA-CR 26-0112 PRPC
FILED 09-17-2026

Petition for Review from the Superior Court in Maricopa County
No. CR2023-007258-001
The Honorable Joshua Yost, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

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

Mark Steven Holmes, Phoenix
Petitioner

STATE v. HOLMES
Decision of the Court

MEMORANDUM DECISION

Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge Veronika Fabian and Judge Kent E. Cattani joined.

C A T L E T T, Judge:

¶1 Petitioner Mark Steven Holmes (“Holmes”) seeks review of
the superior court’s order summarily dismissing his petition for post-
conviction relief (“PCR”). We grant review but deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 In 2024, Holmes pleaded guilty to manslaughter. His plea
agreement stipulated to a sentence ranging between 12 and 16 years in
prison. At sentencing, the superior court found these aggravating factors:
(1) Holmes’ extensive criminal history, (2) his continued commission of
vehicular and drug crimes even after committing manslaughter, (3)
emotional harm to the victim’s family, and (4) the victim was over 65 years
old. The court also found mitigating circumstances, including Holmes’ age,
health issues, drug addiction, and family support. The court imposed an
aggravated 16-year sentence.

¶3 Holmes petitioned for PCR, arguing he received ineffective
assistance of trial counsel and an illegal sentence. He asserted that Terms 3
and 11 in the plea agreement are contradictory, so it was unclear whether
his prior convictions could be used as aggravating factors at sentencing. He
contended that although the State agreed not to allege his prior convictions
in Term 3, the superior court still relied on his criminal history as an
aggravating factor. He further argued trial counsel was ineffective for
failing to object to the alleged ambiguity or to the court’s reliance on his
prior convictions.

¶4 The PCR court dismissed Holmes’ petition, finding the plea
agreement contained standard and unambiguous terms, which the
sentencing court reviewed with Holmes during a settlement conference and
during the change of plea hearing. Further, the PCR court concluded that
the sentencing court did not violate the plea agreement and Holmes did not

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STATE v. HOLMES
Decision of the Court

show that trial counsel was ineffective for not objecting to those sentencing
considerations.

¶5 Holmes timely petitioned for review. We grant review. See
A.R.S. § 13-4239(C).

DISCUSSION

¶6 Holmes’ arguments on review are the same as those he made
in the superior court. We review the superior court’s PCR rulings for an
abuse of discretion, “which occurs if the court makes an error of law or fails
to adequately investigate the facts necessary to support its decision.” State
v. Bigger, 251 Ariz. 402, 407 ¶ 6 (2021).

¶7 The superior court may consider prior felony convictions as
aggravating factors even when the State agrees not to allege those prior
convictions for sentencing enhancement purposes. See State v. Jackson, 130
Ariz. 195, 196 (App. 1981) (holding dismissal of a prior conviction allegation
in a plea agreement means that an enhanced sentencing range does not
apply, but that does not preclude the sentencing judge from considering
that conviction as an aggravator within the non-enhanced sentencing
range); see also State v. Shattuck, 140 Ariz. 582, 584 n.1 (1984) (explaining “the
sentencing judge [may] impose an aggravated sentence based on prior
conduct even if a conviction for that conduct has not been alleged”).
Further, the statutory provisions permitting a court to increase or decrease
a sentence within a specified range differ from the sentence-enhancement
scheme. Compare A.R.S. § 13-701(C) (authorizing the maximum term upon
finding aggravating circumstances), with A.R.S. § 13-703 (enhancement for
repetitive offenders).

¶8 Moreover, Holmes’ plea agreement is not ambiguous. Term
5 states that any dismissed enhancement allegation under Term 3 “may be
considered in aggravation of any sentence permissible under the plea
agreement.” Term 11 says Holmes read and understood the agreement and
knowingly waived his right to have a jury determine guilt and whether
aggravating factors exist. During the change of plea hearing, Holmes
confirmed he had read and initialed each paragraph of the plea agreement
and understood that he was stipulating to a sentencing range between 12
and 16 years. The superior court imposed a sentence within that range and
identified Holmes’ prior convictions as an aggravating factor. See A.R.S.
§ 13-701(D)(11). The court did not violate the plea agreement.

¶9 Even without relying on Holmes’ prior convictions, there
were other aggravating factors, including the victim’s age and the

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STATE v. HOLMES
Decision of the Court

emotional harm to the victim’s family, that support the court’s sentencing
decision. See A.R.S. § 13-701(D)(9), (13).

¶10 Because we find no ambiguity in the plea agreement or error
on the court’s part, counsel was not ineffective for failing to object. See
Strickland v. Washington, 466 U.S. 668, 687 (1984) (to prevail on ineffective
assistance claim, defendant must show both deficient performance and
resulting prejudice).

¶11 Lastly, Holmes argues the sentencing court violated his due
process rights by conducting both the settlement conference and the change
of plea hearing. Because he raises this issue for the first time on review, it
is waived. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (precluding
defendant from raising PCR issues for the first time on review).

CONCLUSION

¶12 We grant review but deny relief.

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

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