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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               REECE ANTHONY ALVARADO, Petitioner.

                         No. 1 CA-CR 19-0139 PRPC
                           FILED 12-17-2019


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2015-145718-001
                  The Honorable Danielle J. Viola, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Respondent

Reece Anthony Alvarado, Florence
Petitioner
                           STATE v. ALVARADO
                            Decision of the Court




                      MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.


C A M P B E L L, Judge:

¶1            Reece Alvarado petitions this court for review from the
dismissal of his petition for post-conviction relief, filed pursuant to Arizona
Rule of Criminal Procedure (“Rule”) 32. We have considered the petition
for review and, for the reasons stated, grant review and deny relief.

¶2           Alvarado pleaded guilty to one count of sexual conduct with
a minor and two counts of attempted sexual conduct with a minor. The
superior court imposed the most lenient sentence available under the plea
agreement—a mitigated term of 17 years’ imprisonment on the completed
count, to be followed by concurrent terms of lifetime probation on the
attempt counts.

¶3            Alvarado timely initiated proceedings for post-conviction
relief, and the superior court appointed counsel to represent him. After
reviewing the record and other pertinent materials, counsel stated she
could find no colorable claims to pursue on Alvarado’s behalf. Alvarado
filed a pro se petition for relief, which the superior court summarily
dismissed, leading to our review. Barring an abuse of discretion, we will
not disturb the superior court’s decision. State v. Amaral, 239 Ariz. 217, 219,
¶ 9 (2016).

¶4             Alvarado seeks review of the following claims: (1) his plea
attorney provided ineffective assistance by promising him that if he signed
the plea agreement stipulating to a flat-time prison sentence of 17 to 24
years, the State would modify that agreement at sentencing to let him serve
just 10 years at 85 percent; (2) his attorney provided ineffective assistance
by failing to inform him that he could be sentenced to substantial prison
terms if he violated probation; (3) his sentence is illegal because it exceeds
the statutory maximum and constitutes cruel and unusual punishment; and
(4) he has newly discovered evidence that, if presented earlier, would likely
have resulted in a shorter sentence.




                                      2
                          STATE v. ALVARADO
                           Decision of the Court

¶5             A defendant states a colorable claim of ineffective assistance
of counsel by showing “both that counsel’s performance fell below
objectively reasonable standards and that this deficiency prejudiced the
defendant.” State v. Bennett, 213 Ariz. 562, 567, ¶ 21 (2006). By failing to
raise his ineffective assistance claims in the superior court, Alvarado
waived review on appeal. See Rule 32.9(c)(4)(B); see also State v. Lopez, 223
Ariz. 238, 240, ¶¶ 6–7 (App. 2009). A petition for review is not the proper
vehicle for raising new grounds for relief.

¶6            In any event, Alvarado’s ineffective assistance claims are
without merit. His allegation that counsel promised the State would modify
the executed plea agreement to provide for a 10-year sentence at 85 percent
strains credulity and is belied by Alvarado’s representations to the court
that no one promised him anything outside of the plea agreement and that
he agreed to receive a flat-time prison sentence between seventeen and 24
years.1 Likewise, the record does not support Alvarado’s claim that he was
unaware of his sentence exposure in the event he violated probation. The
plea agreement, which Alvarado confirmed he understood and discussed
with his attorney, set forth the range of prison sentences that could be later
imposed if Alvarado violated probation. Nor does Alvarado meet his
obligation to show prejudice, failing to demonstrate, or even allege, “a
reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” State v. Bowers,
192 Ariz. 419, 424, ¶ 19 (1998).

¶7            Equally unavailing, Alvarado claims that his sentence
exceeds the statutory maximum and constitutes “cruel and unusual
punishment[]” under the Eighth Amendment to the United States
Constitution and Article 2, Section 15, of the Arizona Constitution. Even
assuming he sufficiently presented this argument to the superior court, we
find his contentions meritless. Each term the superior court imposed was
authorized by statute. See A.R.S. §§ 13-705(C), (H), (J), (O), 13-902(E).
Alvarado provides no authority for the proposition that probation may be
considered a cruel and unusual punishment. See In re J.G., 196 Ariz. 91, 94,
¶ 13 (App. 1999) (“Probation is not punishment; it is the suspension of
sentence under conditions designed to rehabilitate the probationer.”). Nor
does he establish, in any event, a colorable claim that any element of his
sentence is cruel and unusual, which requires showing the legislature

1      The sentence Alvarado claims he was promised was not statutorily
available to him. The minimum sentence he could receive for conviction of
sexual conduct with the 13-year-old victim was 13 years flat time. A.R.S.
§ 13-705(C), (H).


                                      3
                          STATE v. ALVARADO
                           Decision of the Court

lacked a reasonable, penological basis for enacting the sentencing scheme
at issue and that the sentence the defendant complains of is “grossly
disproportionate” to the offense. State v. Berger, 212 Ariz. 473, 477, ¶ 17
(2006). See also id. at 479, ¶ 27 (stating general rule that court does not
consider consecutive nature of sentences when assessing proportionality).

¶8            Finally, we find no abuse of discretion in the superior court’s
dismissal of Alvarado’s new evidence claim under Rule 32.1(e). Alvarado
complains the court did not allow him to present evidence of particular
mental health issues at the sentencing hearing. By Alvarado’s own
description, that information was not “discovered after the . . . sentencing,”
as Rule 32.1(e) requires.

¶9            Accordingly, we grant review and deny relief.




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




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