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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 PAUL ANTHONY ROBLEDO, Petitioner.

                         No. 1 CA-CR 15-0379 PRPC
                              FILED 4-25-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2009-110121-001
          The Honorable Phemonia L. Miller, Judge Pro Tempore

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Paul Anthony Robledo, Buckeye
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the court, in
which Judge Patricia K. Norris and Chief Judge Michael J. Brown joined.
                           STATE v. ROBLEDO
                           Decision of the Court

J O H N S E N, Judge:

¶1            Paul Anthony Robledo petitions this court for review of the
dismissal of his fourth petition for post-conviction relief ("PCR") filed
pursuant to Arizona Rule of Criminal Procedure 32. We have considered
the petition for review and, for the reasons stated, grant review, but deny
relief.

¶2            In January 2010, Robledo pled guilty to attempted first-degree
murder, a Class 2 dangerous felony and domestic violence offense. The
superior court found four aggravating factors as alleged by the State,
determined those factors outweighed any mitigating factors, and imposed
the maximum 21-year prison sentence. See Ariz. Rev. Stat. ("A.R.S.") § 13-
704(A) (2017).1

¶3             This court dismissed as untimely Robledo's petition for
review from his first Rule 32 proceeding, in which he asserted a claim of
ineffective assistance of counsel and challenged the lawfulness of his
sentence under Blakely v. Washington, 542 U.S. 296 (2004). In 2013, Robledo
filed a second notice of PCR, again raising claims of ineffective assistance
of counsel, asserting that under a significant change in the law, he was
entitled to effective assistance of counsel in the plea bargain process. The
superior court summarily dismissed the notice, and this court granted
review, but denied relief. State v. Robledo, 1 CA-CR 13-0615, 2015 WL 503217
(Ariz. App. Feb. 5, 2015) (mem. decision). In a third PCR, Robledo again
sought relief on grounds of ineffective assistance of counsel and the
purported unlawfulness of his sentence under Blakely. State v. Robledo, 2
CA-CR 2015-0194, 2015 WL 4040775, at *1, ¶ 2 (Ariz. App. July 1, 2015)
(mem. decision). According to Robledo, he also had recently discovered
that he suffered from a mental illness that had caused him to commit the
crime. The superior court summarily dismissed the petition, and this court
granted review, but denied relief. Id. at ¶ 3.

¶4            Robledo then filed a fourth notice and petition for PCR.
Robledo raised claims pursuant to Rule 32.1(e), (g) and (h), arguing newly
discovered facts exist that probably would have changed the verdict or
sentence, there has been a significant change in the law that would probably
overturn his sentence, and actual innocence. All his claims were based
either on (1) his assertion that, as he argued in previous Rule 32
proceedings, his sentence was illegal because a judge, not a jury, found

1      Absent material revision after the date of an alleged offense, we cite
a statute's current version.


                                     2
                             STATE v. ROBLEDO
                             Decision of the Court

aggravating factors, or (2) pursuant to a 1974 Arizona Supreme Court
opinion he "just learned of," his conviction was unlawful because Arizona
does not recognize the offense of attempted first-degree murder. See State
v. Durgin, 110 Ariz. 250, 252 (1974) ("There is no crime of attempted first
degree murder in Arizona, and when a person is charged with attempted
murder it is construed as attempted murder in the second degree."). The
superior court dismissed the notice and denied the petition.

¶5            On review, Robledo argues the superior court erroneously
failed to consider his Rule 32 petition or the attachments thereto. Without
deciding the merits of that assertion, we will affirm the court's ruling if it is
correct for any reason. State v. Perez, 141 Ariz. 459, 464 (1984); State v. Cantu,
116 Ariz. 356, 358 (App. 1977).2

¶6               Robledo argues he is entitled to Rule 32 relief because he "did
not discover the ruling in State v. Durgin until December of 2014." We reject
this argument for two reasons. First, Durgin was decided in 1974 and
Robledo was sentenced in 2010; thus, that case does not constitute a
significant change in the law entitling Robledo to relief. See Ariz. R. Crim.
P. 32.1(e), (g).

¶7             Second, Robledo's reliance on Durgin is misplaced. At the
time Durgin was decided, Arizona's statutory scheme relating to sentencing
for "attempt" convictions permitted punishment "by a term not exceeding
one-half of the longest term of the imprisonment prescribed upon
conviction for the offense so attempted." State v. Williams, 103 Ariz. 284, 284
(1968). A sentence for the completed crime of first-degree murder could be
life in prison; therefore, Arizona's appellate courts determined that, for
sentencing purposes, attempted first-degree murder "is not a crime . . .
because the sentencing statute covering it has impossible limits as to both
minimum and maximum sentences." State v. Lenahan, 12 Ariz. App. 446,
449-50 (App. 1970). As a result, a conviction of attempted first-degree was
"construed as attempted murder in the second degree." Durgin, 110 Ariz.
at 252; accord Lenahan, 12 Ariz. App. at 450.

¶8            Long ago, however, the legislature amended the sentencing
provision at issue in Durgin. Now, and at the time Robledo was sentenced,
an attempt conviction subjects a defendant to a definitive range of years of


2      "We will not disturb a trial court's ruling on a petition for post-
conviction relief absent a clear abuse of discretion." State v. Swoopes, 216
Ariz. 390, 393, ¶ 4 (App. 2007).



                                        3
                            STATE v. ROBLEDO
                            Decision of the Court

incarceration. See A.R.S. §§ 13-704(A), -1001(C)(1) (2017). Since those
amendments, Arizona's appellate courts have recognized the lawfulness of
the offense of attempted first-degree murder. State v. Rossi, 146 Ariz. 359,
369 (1985) (after completing fundamental error review, affirming
conviction for attempted first-degree murder); State v. Nunez, 159 Ariz. 594,
597 (App. 1989) ("[A]ttempted first degree murder can be knowingly
committed and, as such, is an offense in Arizona."); see also State v. Emery,
141 Ariz. 549, 553 (1984) (implicitly recognizing as a general matter that
attempted first-degree murder is an offense in Arizona).

¶9             Next, without presenting any argument or explanation,
Robledo, as he did in superior court, contends Alleyne v. United States, 133
S. Ct. 2151 (2013), "is a significant change in the law," apparently suggesting
that case requires him to be resentenced after a jury trial on the aggravating
factors alleged by the State. This summary assertion is insufficient. See State
v. Moody, 208 Ariz. 424, 452, ¶ 101, n.9 (2004) ("Merely mentioning an
argument is not enough . . . ."). To the extent Robledo continues to argue
he was entitled to a jury trial on the aggravating factors alleged by the State,
Robledo expressly waived his right to a jury trial on aggravating factors
when he pled guilty. Robledo offers no authority supporting the
proposition that an express waiver by a pleading defendant is lawfully
invalid.

¶10          The superior court did not abuse its discretion in dismissing
Robledo's fourth notice and petition for PCR. Accordingly, we grant
review, but deny relief.




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




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