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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

            LORENZO ANTONIO VENTURA, SR., Petitioner.

                         No. 1 CA-CR 16-0562 PRPC
                              FILED 7-20-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2014-002012-019
                  The Honorable M. Scott McCoy, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Lorenzo Antonio Ventura, Sr., Douglas
Petitioner
                             STATE v. VENTURA
                             Decision of the Court



                        MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia K. Norris1 joined.


C A M P B E L L, Judge:

¶1           Lorenzo Antonio Ventura, Sr., petitions this court for review
from the dismissal of his petition for post-conviction relief. We have
considered the petition for review, and grant review but deny relief.

¶2            Ventura pled guilty to illegal control of an enterprise,
conspiracy to possess marijuana for sale, and misconduct involving
weapons. Ventura stipulated to a “slightly aggravated term of 4 years” on
the illegal control of an enterprise offense charge with two aggravating
circumstances—that he committed the offense for pecuniary gain and with
accomplices. He also stipulated to probation for conspiracy to possess
marijuana for sale and misconduct involving weapons. In October 2014, the
superior court accepted the plea agreement and sentenced Ventura
accordingly.

¶3             In April 2016, Ventura filed an untimely notice of post-
conviction relief (“PCR”) and a supporting petition. See Ariz. R. Crim. P.
32.4(a) (“Any notice [of post-conviction relief] not timely filed may only
raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h).”) He alleged, in part,
he pled guilty because defense counsel promised that he would be released
to U.S. Immigration and Customs Enforcement after serving one-half of his
sentence pursuant to former Arizona Revised Statutes section 41-1604.14.
2016 Ariz. Sess. Laws, ch. 89, § 1 (repealed 2016). He asserted his appeal,
while untimely, should be considered because he was being held beyond
the expiration of his sentence, see Ariz. R. Crim. P. 32.1(d), and he was not
at fault in the late filing of his petition, see Ariz. R. Crim. P. 32.1(f). In June
2016, the superior court summarily dismissed his petition as untimely and
thereby precluded. The court also found that even if his petition was not
time barred, Ventura was not entitled to relief because he had not stated a

1      The Honorable Patricia K. Norris, Retired Judge of the Arizona Court
of Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.



                                        2
                            STATE v. VENTURA
                            Decision of the Court

basis for relief under Rule 32.1(d) or (f). Ventura did not petition this court
for review.

¶4            Ventura filed a successive notice of PCR, an “Affidavit,” and
a pleading “To Amend Petition for Post-Conviction Relief and Reconsider.”
He alleged: (1) he had newly discovered evidence that defense counsel had
not informed him of a more favorable plea offer; (2) his trial counsel had
been ineffective because she had promised he would only serve half of his
sentence; and (3) the superior court had improperly aggravated his
sentence because he had not stipulated to any aggravating circumstances in
the plea agreement.

¶5            In July 2016, the superior court summarily dismissed his
second petition. The superior court found Ventura failed to state a factual
or legal basis for relief based on newly discovered evidence, see Ariz. R.
Crim. P. 32.1(e), noting Ventura had inconsistently claimed he was both
advised of the more favorable plea offer before he accepted the October plea
agreement, and that he had only recently learned of the more favorable plea
offer. The superior court additionally found that his ineffective assistance
of counsel claim, and improper aggravated sentence claim pursuant to Rule
32.1(a) and (c), were precluded as untimely and successive.

¶6            Ventura subsequently filed a petition for review with this
court, seeking review of the June 2016 and July 2016 summary dismissals.
His petition for review of the June 2016 order of dismissal is untimely and
not properly before this court. See Ariz. R. Crim. P. 32.9(c) (petition for
review must be filed within 30 days of the superior court’s final decision).
Therefore, the only ruling properly before this court is the superior court’s
July 2016 order of dismissal.2

¶7            The superior court clearly identified and correctly ruled upon
the issues raised, and Ventura has failed to show on review the superior
court abused its discretion. See State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19
(2012) (appellate court reviews denial of petition for post-conviction relief
for abuse of discretion) (citation omitted). First, as the superior court found,
Ventura presented conflicting statements as to whether he knew about the
alleged more favorable plea offer before he accepted the October plea
agreement. See State v. Sanchez, 200 Ariz. 163, 166–67, ¶ 11 (App. 2001)
(newly discovered evidence is evidence that existed at time of trial, but not
discovered until after trial). Second, we agree Ventura’s ineffective


2   For reasons not apparent in the record, the trial court reissued this
minute entry on August 8, 2016.


                                       3
                           STATE v. VENTURA
                           Decision of the Court

assistance of counsel claim and improper aggravated sentence claim are
precluded. See Ariz. R. Crim. P. 32.4(a); State v. Petty, 225 Ariz. 369, 373,
¶ 11 (App. 2010).

¶8           Accordingly, we grant review but deny relief.




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




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