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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 DERRICK DAMARIAN LOWE, Petitioner.

                         No. 1 CA-CR 18-0262 PRPC
                              FILED 8-28-2018


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2015-002410-002
               The Honorable Margaret R. Mahoney, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Adena J. Astrowsky
Counsel for Respondent

Derrick Damarian Lowe, San Luis
Petitioner
                             STATE v. LOWE
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.


P E R K I N S, Judge:

¶1           Petitioner Derrick Damarian Lowe petitions this court for
review from the dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.

¶2           Lowe pled guilty to five counts of armed robbery, all class two
dangerous felonies, each count involving separate incidents with different
victims on different days. Prosecutors alleged that Lowe and other
individuals robbed various pawn shops, stealing jewelry. While Lowe did
not use a weapon during the robberies, others did, and Lowe was charged
under an accomplice theory. The State dismissed forty additional counts in
exchange for Lowe’s guilty plea. Lowe was sentenced to concurrent
aggravated terms of sixteen years’ imprisonment on each count.

¶3             Lowe filed a notice of post-conviction relief and a pro per
petition for post-conviction relief (“PCR”) after Rule 32 counsel filed a
notice of completion of review. In his PCR, Lowe made the following
allegations: his right to a speedy trial was violated; his counsel was
specifically ineffective for failing to challenge the “multiplicitous” nature of
the charges; his counsel was generally ineffective; he was denied due
process because the elements of the alleged crimes, including his identity,
were not proven beyond a reasonable doubt; and his sentence was a
violation of the Eighth Amendment. The superior court dismissed Lowe’s
PCR and denied a subsequent request for reconsideration.

¶4              “Ordinarily, we review a trial court’s denial of post-
conviction relief for an abuse of discretion.” State v. Decenzo, 199 Ariz. 355,
356 (App. 2001). A plea agreement waives all non-jurisdictional defenses,
errors, and defects which occurred prior to the plea. State v. Moreno, 134
Ariz. 199, 200 (App. 1982). The waiver of non-jurisdictional defects includes
deprivations of constitutional rights. Tollett v. Henderson, 411 U.S. 258, 267
(1973). Thus, Lowe waived his claim regarding his right to a speedy trial.
See State v. Ellis, 117 Ariz. 329, 331 (1977) (“[A]s we have said many times, a


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                             STATE v. LOWE
                            Decision of the Court

defendant waives any question regarding his right to a speedy trial by
entering a plea of guilty.”). All claims of ineffective assistance of counsel
not directly related to the entry of the plea are also waived. State v. Quick,
177 Ariz. 314, 316 (App. 1994).

¶5              To establish ineffective assistance of counsel, Lowe must
show that counsel’s performance was deficient and that the deficiency
prejudiced Lowe. Strickland v. Washington, 466 U.S. 668, 687 (1984). Lowe’s
ineffective assistance of counsel claim as to multiplicity of charges is
without merit. He does not contend that his convictions were multiplicitous
or resulted in double jeopardy, and the crimes to which he pled guilty
occurred on different days with different victims. He failed to object to the
indictment, and even if the indictment was deficient as a result of
multiplicity, he waived any such defects by entering into his plea because
it is not directly related to his plea entry.

¶6            In addition, Lowe’s claim that his counsel was deficient by
failing to challenge the indictment does not provide any basis for finding
that a challenge would have been helpful. He is not specific as to which of
the original forty-five counts overlapped or could have been disposed of
without a trial. Because Lowe failed to show prejudice, he has not met his
burden to establish ineffective assistance of counsel.

¶7            A trial court must determine whether there is a factual basis
for a crime before entering judgment on a defendant’s guilty plea. State v.
Salinas, 181 Ariz. 104, 106 (1994). This factual basis need not establish guilt
beyond a reasonable doubt: strong evidence of guilt is sufficient. Id. The
court may ascertain the factual basis for a guilty plea from the extended
record. State v. Sodders, 130 Ariz. 23, 25 (1981). In this case, the extended
record—which includes the pre-sentence report, indictment, various
sentencing memoranda, and the transcript of the settlement conference—
contains sufficient evidence to support judgment on Lowe’s guilty plea.

¶8            Lowe admitted at his plea proceeding that he committed the
robberies. The extended record indicates there was video surveillance of the
robberies. The record further shows that law enforcement seized from
Lowe’s residence jewelry from one of the robberies and pants similar to
those in two surveillance videos and that pawn records show he pawned
one item at four of the stores a day or two before each crime. Besides this
physical evidence, the State also had expected witness testimony: Lowe’s
roommate was expected to testify that Lowe had attempted to recruit him
for an armed robbery; also, one of the accomplices was expected to testify
that Lowe committed a robbery with him and that Lowe told him about


                                      3
                             STATE v. LOWE
                            Decision of the Court

being involved in two other robberies. Finally, at his sentencing, Lowe
affirmed his guilt and responsibility by stating, “The decisions I made to
get money to pay for college was wrong. I got carried away.” Thus, the
extended record contains strong evidence of Lowe’s guilt.

¶9           Lowe’s PCR does not present any facts or law to support his
Eighth Amendment claim. With regard to lengthy prison sentences, the
Eighth Amendment only prohibits sentences that are “grossly
disproportionate” to the crime. State v. Berger, 212 Ariz. 473, 475, ¶ 10 (2006).
At sentencing in this case, the superior court adequately considered the
various mitigating and aggravating factors, including the facts that the
armed robberies took careful planning and affected around twenty victims.
Lowe has not made the threshold showing of a gross disproportionality
between the gravity of the offenses and the harshness of the penalty, and
we see none.

¶10           We grant review and deny relief.




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




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