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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                          DONELL REED, Petitioner.

                         No. 1 CA-CR 16-0724 PRPC
                              FILED 11-14-2017


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2004-038162-002 SE
            The Honorable Julie Ann Mata, Judge Pro Tempore

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Jeffrey R. Duvendack
Counsel for Respondent

Donell Reed, Kingman
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.
                             STATE v. REED
                           Decision of the Court

W I N T H R O P, Presiding Judge:

¶1             Donell Reed petitions this court for review of the dismissal of
his petition for post-conviction relief, filed pursuant to Arizona Rule of
Criminal Procedure (“Rule”) 32. This is his first, timely, “of right” petition
for post-conviction relief, filed after a probation violation admission and
disposition. We have considered the petition for review and, for the reasons
stated, grant review but deny relief.

¶2           Reed pled guilty in 2004 to amended Count I, attempted child
abuse (domestic violence), a class 3 felony and dangerous crime against
children, and amended Count II, child abuse (domestic violence), a class 2
felony. Before proceeding to sentencing, the superior court, with Reed and
plea counsel present, amended the plea agreement to reflect the correct
sentencing range as to Count I, noted the original plea agreement was not
“in the Court’s possession,” and directed the clerk’s office to make the
changes to the original plea agreement. The court then sentenced Reed to
seven years’ imprisonment in the Arizona Department of Corrections
(“ADOC”) for Count II, and placed him on lifetime probation for Count I.
Reed did not seek post-conviction relief at that time.

¶3           After his release from prison on Count II, Reed twice violated
probation, but was reinstated to probation each time. A third petition to
revoke was filed in 2015, and Reed admitted another probation violation.
The court revoked Reed’s probation and sentenced him to eight years’
imprisonment in ADOC.

¶4            Reed filed a notice of post-conviction relief, and after
appointed counsel filed a notice of completion of review, Reed filed a pro se
petition for post-conviction relief, requesting relief under Rule 32.1(e)
(alleging the existence of newly discovered material facts). Reed claimed
he discovered in April 2016 that his original plea had been amended
without his approval to show a different and higher range of sentencing on
Count I, he was not present when the clerk’s office made the change, and
the State breached its agreement as originally signed and entered. The
superior court summarily dismissed his petition.

¶5            Reed filed his petition for review, reiterating his claim. There
is no factual dispute as to the amendment to the plea taking place. In
general, we review the denial of post-conviction relief for an abuse of
discretion. State v. Decenzo, 199 Ariz. 355, 356, ¶ 2 (App. 2001). Here, we
find no abuse of discretion. Reed’s claim arises from an amendment to the
plea agreement, directed in open court, while he and counsel were present.


                                      2
                              STATE v. REED
                            Decision of the Court

At best, Reed may have a claim for technical error, which does not entitle
him to have his plea or sentence set aside if “substantial justice has been
done.” State v. Mendiola, 23 Ariz. App. 251, 254 (1975) (quoting Ariz. Const.
art. 6, § 27).

¶6              Because Reed was present during the technical change, he
cannot show that this was a fact “discovered after the trial” or that he
“exercised due diligence” to be entitled to relief. See Ariz. R. Crim. P.
32.1(e)(1), (2); State v. Bilke, 162 Ariz. 51, 52-53 (1989). The plea existed in
the record for more than a decade. Simply because a defendant presents
the court with evidence for the first time does not make that evidence
“newly discovered.” State v. Mata, 185 Ariz. 319, 333 (1996) (citation
omitted). Reed’s claim is untimely and therefore precluded. See Ariz. R.
Crim. P. 32.2(a)(3), 32.4(a).

¶7             Additionally, Reed has not attached or requested transcripts
of the original plea proceeding or other documentary evidence to show
either that he was not advised of the correct sentencing range or that he did
not agree to the changes. The minute entry from his change of plea hearing
states: “The Court advises Defendant of the range of possible sentence and
the availability of probation . . . .” The court amended the plea agreement
to reflect the appropriate range of sentences for a class 3 felony consistent
with Arizona Revised Statutes sections 13-3623(A)(1) (2001) and 13-
604.01(I) (Supp. 2002). Reed could have requested the transcripts from
these proceedings pursuant to Rule 32.4(d), but he did not do so. “Where
matters are not included in the record on appeal, the missing portions of
the record will be presumed to support the action of the trial court.” State
v. Zuck, 134 Ariz. 509, 513 (1982) (citation omitted).

¶8            Reed has failed to meet his burden of proof to show a
colorable claim under Rule 32.1(e), and by extension, claims under Rule
32.1(a) for an unlawful sentence, breach of an agreement, or other due
process violation. Under Rule 27.8, a trial court is required to determine if
a defendant’s admission to a probation violation is voluntary. State v.
Flowers, 159 Ariz. 469, 472 (App. 1989). After the group advisement, before
Reed’s admission to the third probation violation, the superior court
advised him of the range of sentence if he were to enter an admission, which
was from five to fifteen years, consistent with the plea agreement as
amended in 2005. The court then sentenced him to eight years’
imprisonment in ADOC, a term less than the presumptive ten-year term.
Reed has provided nothing to show that his original plea or subsequent
admission and disposition was defective.



                                       3
                   STATE v. REED
                 Decision of the Court

¶9   Accordingly, although we grant review, we deny relief.




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




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