                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                        v.

                         BORIS VIDOVIC, Petitioner.

                         No. 1 CA-CR 13-0152 PRPC
                               FILED 08-14-2014


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2011-006846-001
                         No. CR2011-008293-001
                         No. CR2011-143011-001
                         No. CR2011-156392-002

                 The Honorable Barbara L. Spencer, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Arthur Hazelton
Counsel for Respondent

G. David DeLozier, Phoenix
By G. David DeLozier
Counsel for Petitioner
                            STATE v. VIDOVIC
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.


T H U M M A, Judge:

¶1             Defendant Boris Vidovic pled guilty in three cases to
aggravated assault, possession of narcotic drugs for sale, attempted armed
robbery and eight counts of armed robbery. Pursuant to the terms of the
written plea agreements, the superior court sentenced Vidovic to
concurrent prison terms, the longest of which was 20 years, and dismissed
a fourth case. Vidovic filed a consolidated petition for post-conviction relief
of-right which the superior court summarily dismissed. On Vidovic’s
timely petition for review, this court has jurisdiction pursuant to Arizona
Rule of Criminal Procedure 32.9(c).

¶2           Vidovic first argues his trial counsel was ineffective when he
advised Vidovic to accept plea agreements with stipulated prison terms. He
further argues the stipulated terms of 20 years’ imprisonment for each
count of armed robbery are grossly disproportionate to the sentences of his
co-defendant as well as similarly situated defendants.

¶3            To state a colorable claim of ineffective assistance of counsel,
a defendant must show that counsel’s performance fell below objectively
reasonable standards and that the deficient performance prejudiced the
defendant. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To show
prejudice, a defendant must show that there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694.

¶4            Vidovic has failed to present a colorable claim of ineffective
assistance of counsel. The parties are free to negotiate and agree on “any”
aspect of a case in a plea agreement, including to stipulated sentences. See
Ariz. R. Crim. P. 17.4(a); Espinoza v. Martin, 182 Ariz. 145, 147, 894 P.2d 688,
690 (1995). While the superior court is free to reject a plea if it determines a
sentencing provision is inappropriate, Ariz. R. Crim. P. 17.4(d), there is
nothing unconstitutional about stipulated sentences within the range
permitted by law, Espinoza, 182 Ariz. at 147, 894 P.2d at 690. While Vidovic
further claims the State would have made more favorable offers if trial


                                       2
                            STATE v. VIDOVIC
                            Decision of the Court

counsel had done a better job of negotiating and/or providing the State
with mitigating evidence, he offers nothing but speculation to support this
claim. See State v. Rosario, 195 Ariz. 264, 268 ¶ 23, 987 P.2d 226, 230 (App.
1999) (noting burden to show an ineffective assistance of counsel claim “is
on the petitioner and the showing must be that of a provable reality, not
mere speculation”).

¶5             Regarding Vidovic’s claim that the 20 year sentences for
armed robbery are grossly disproportionate to the sentences imposed for his
co-defendant as well as similarly situated defendants, the Eighth
Amendment bars cruel and unusual punishment. See State v. Berger, 212
Ariz. 473, 475 ¶ 8, 134 P.3d 378, 380 (2006). In a noncapital setting, this
means that the sentence imposed may not be “grossly disproportionate” to
the crime. Id. at 475 ¶ 10, 134 P.3d at 380. In that analysis, “a court first
determines if there is a threshold showing of gross disproportionality by
comparing ‘the gravity of the offense [and] the harshness of the penalty.’”
Berger, 212 Ariz. at 476 ¶ 12, 134 P.3d at 381 (quoting Ewing v. California, 538
U.S. 11, 28 (2003)). In doing so, the court “must accord substantial deference
to the legislature and its policy judgments as reflected in statutorily
mandated sentences.” Berger, 212 Ariz. at 476 ¶ 13, 134 P.3d at 381. If the
Legislature has reasonable grounds to believe that a sentence advances the
goals of Arizona’s criminal justice system in “any substantial way,” and the
sentence “arguably furthers the State’s penological goals and thus reflects
‘a rational legislative judgment, entitled to deference,’” a sentence is not
grossly disproportionate and the inquiry ends. Id. at 477 ¶ 17, 134 P.3d at
382 (quoting Ewing, 538 U.S. at 28, 30). It is “exceedingly rare” that a
sentence in a noncapital case will be grossly disproportionate. Id. Finally,
even a sentencing scheme that is not grossly disproportionate in its general
application can result in a grossly disproportionate sentence in application.
Id. at 481 ¶ 39, 134 P.3d at 386.

¶6            Vidovic has failed to present a colorable claim of gross
disproportionality. First, Vidovic stipulated to the imposition of 20 year
sentences as terms of the plea agreements. He raised no objection when he
entered his pleas containing those terms nor when the superior court
sentenced him to those terms as contemplated by the written plea
agreements. Further, he does not contest that a 20 year sentence is within
the range of sentences available for armed robbery and does not assert that
a 20 year sentence is disproportionate to the offense itself. See Arizona
Revised Statutes (A.R.S.) section 13-704(A) (2011).

¶7          Second, even if Vidovic had not stipulated to the 20 year
sentences, he has failed to present a colorable claim of gross


                                       3
                            STATE v. VIDOVIC
                            Decision of the Court

disproportionality. Vidovic claims his co-defendant participated in many
of the armed robberies and was just as culpable if not more so based on his
actions when pursued by police, yet the co-defendant received three
concurrent sentences of 10.5 years in prison (a factual assertion this court
accepts as true but that is not supported by evidence in the record). The
record shows the co-defendant participated in several of the armed
robberies, but only as the driver of the vehicle in which Vidovic eventually
left the scene. The co-defendant did not personally rob six different
pharmacies at simulated gunpoint and victimize the employees.
Accordingly, Vidovic’s 20 year sentences for armed robbery are not grossly
disproportionate to those of his co-defendant.

¶8              In regard to similarly situated defendants, Vidovic argues his
sentences are grossly disproportionate because his survey of convictions for
armed robbery during the previous five years shows most of the defendants
received sentences that averaged roughly 10 years in prison. The survey,
however, is not a complete survey of sentences for aggravated assault; does
not identify the county or counties in which the convictions occurred and
is limited without explanation to “multi-defendant cases” as well as cases
that involved both armed robbery and aggravated assault. Vidovic’s cases,
however, did not always involve both offenses. Vidovic also offers nothing
to demonstrate that any of those cases presented facts and circumstances
similar to Vidovic’s cases, or that those particular defendants were similarly
situated to Vidovic as far as sentencing considerations. Finally, the survey
itself identifies defendants who received sentences of 17.75 and 18 years in
prison for armed robbery. That Vidovic received statutorily permitted
sentences two years longer does not render his sentences grossly
disproportionate.

¶9            While the petition for review to this court presents additional
issues and arguments, Vidovic did not raise those issues and arguments in
the petition for post-conviction relief he filed with the superior court. A
petition for review may not present issues and arguments not first
presented to the superior court. See State v. Bortz, 169 Ariz. 575, 577, 821 P.2d
236, 238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).

¶10           For these reasons, this court grants review but denies relief.




                                      :gsh



                                       4
