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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              DELMO FIGORA TORREFRANCA, Petitioner.

                         No. 1 CA-CR 16-0435 PRPC
                              FILED 10-5-2017


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 2000-002639
                  The Honorable Cynthia Bailey, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Delmo Figora Torrefranca, Florence
Petitioner



                       MEMORANDUM DECISION

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

C R U Z, Judge:

¶1           Petitioner Delmo Figora Torrefranca petitions this Court for
review from the dismissal of his petition for post-conviction relief (“PCR”).
We have considered the petition for review and, for the reasons stated,
grant review but deny relief.

¶2           A jury convicted Torrefranca of one count of sexual conduct
with a minor and two counts of sexual abuse. For sexual conduct with a
minor, a Class 2 felony and dangerous crime against children in the first
degree, Torrefranca was sentenced to a prison term of twenty years
presumptive, non-dangerous, and non-repetitive. For the two sexual abuse
counts, both Class 3 felonies and dangerous crimes against children in the
second degree, he was placed on lifetime probation. His convictions and
sentences were affirmed by this court in State v. Torrefranca, 1 CA-CR 01-
0537 (Ariz. App. Oct. 1, 2002) (mem. decision).

¶3              This Court denied review in two previous PCRs, including in
State v. Torrefranca, 1 CA-CR 04-0833 PRPC (Ariz. App. Aug. 11, 2005)
(decision order) and in State v. Torrefranca, 2 CA-CR 2015-0449-PR, 2016 WL
314299 (Ariz. App. Jan. 26, 2016) (mem. decision). In this, his fourth
untimely and successive PCR,1 he claimed newly discovered material facts
under Arizona Rule of Criminal Procedure (“Rule”) 32.1(e) relating to
records he claims he discovered in 2015, asserting his indictment was void
as a result, his conviction was precluded by double jeopardy (successive or
simultaneous prosecutions), and his sentence is illegal under Arizona
Revised Statutes (“A.R.S.”) section 13-604.01 and other constitutional
provisions. The superior court summarily dismissed his petition.

¶4           Torrefranca reiterated his claims in his petition for review.2
We review for an abuse of discretion. State v. Decenzo, 199 Ariz. 355, 356,
¶ 2 (App. 2001). Torrefranca renews his claim of an illegal sentence, which




1       Torrefranca apparently did not seek review of one of the three
preceding PCRs. See Torrefranca, 2 CA-CR 2015-0449-PR, 2016 WL 314299
at *1, ¶ 2.

2      He also asserts he is automatically entitled to relief based upon the
failure of the State to respond. This Court has already denied that motion.




                                     2
                        STATE v. TORREFRANCA
                          Decision of the Court

falls under Rule 32.1(c) and is precluded.3 Rule 32.2(a). Torrefranca had
the chance to raise this issue on appeal and in previous PCRs, and this Court
has rejected it on appellate review at least once. Furthermore, in a previous
PCR, Torrefranca conceded that his twenty-year sentence was legal.
Torrefranca also claims he is entitled to review under Apprendi v. New Jersey,
530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004), but these
assertions are without merit. First, Torrefranca did not raise this in
previous proceedings, therefore the claims are untimely. Rule 32.2(a).
Second, neither Blakely nor Apprendi is at issue because Torrefranca was
sentenced to the presumptive prison term of twenty years for sexual
conduct for a minor. See State v. Miranda-Cabrera, 209 Ariz. 220, 227, ¶ 32
(App. 2004) (holding sentence did not violate the Sixth Amendment
“[b]ecause the court’s consideration of the sentencing factors did not result
in the imposition of a sentence above that which the judge was entitled to
impose based on ‘the facts reflected in the jury verdict or admitted by the
defendant’”) (quoting Blakely, 542 U.S. at 303). His claim of an illegal
sentence is accordingly neither timely nor supported by law.

¶5            Torrefranca’s claim that he is entitled to relief because A.R.S.
§ 13-604.01 was repealed in 2009 fails for several reasons. First, persons
convicted of crimes generally do not benefit from subsequent changes of
statutory sentencing provisions. State v. Stine, 184 Ariz. 1, 3 (App. 1995);
A.R.S. § 1-246 (“When the penalty for an offense is prescribed by one law
and altered by a subsequent law, . . . the offender shall be punished under
the law in force when the offense was committed.”). Second, his case was
final long before 2009, and the provisions of the statute were not repealed
as he claims but rather moved and renumbered to A.R.S. § 13-705 effective
January 1, 2009. 2008 Ariz. Sess. Laws, ch. 301, §§ 17, 29 (2nd Reg. Sess.).
Even after this move, the statute provided for a twenty-year presumptive
prison sentence, which is still in effect. See A.R.S. § 13-705(C) (2009).
Finally, his citation to State v. Davis, 206 Ariz. 377 (2003), claiming the
statute was found unconstitutional, is inapposite because Davis was a
proportionality review on appeal. Id. at 380, ¶ 11. Torrefranca failed to


3      Torrefranca’s claims regarding double jeopardy due to “double-
counting” and his sentence violating the Eighth Amendment fall within his
claim of an “illegal sentence” and are accordingly precluded. Rule 32.2(a).
His claim regarding “double counting” or “quintuple counting” has no
merit. State v. Munninger, 209 Ariz. 473 (App. 2005), cited by Torrefranca,
was abrogated by State v. Martinez, 210 Ariz. 578, 585-86, ¶ 27 (2005)
(holding court can rely on aggravating factors implicitly found by jury in
sentencing).


                                      3
                         STATE v. TORREFRANCA
                           Decision of the Court

timely raise this argument before this point and is therefore precluded as
untimely.

¶6             Torrefranca next claims the court lacked jurisdiction because
of successive complaints and prosecutions, but this argument also falls
under Rule 32.1(a) and is precluded. Rule 32.2(a)(2)-(3). To the extent
Torrefranca is attempting to circumvent the Rule by claiming newly
discovered material facts, he is unsuccessful. His reference to a previous
“case” is factually incorrect; he refers to arrest records and a search warrant,
not attached to any documents, that were known to the parties long ago.

¶7             Torrefranca also argues the increase of classification of sexual
conduct against a minor from a Class 6 to Class 2 felony violates double
jeopardy because it increases the punishment for the same offense.
However, Torrefranca’s arrest does not implicate double jeopardy;
jeopardy never attached and Torrefranca shows no evidence of a criminal
complaint having been filed before this case. See State v. Stout, 5 Ariz. App.
271, 275 (1967) (stating jeopardy does not attach until a jury is empaneled
and sworn and proceedings commence). Certainly, he shows no evidence
of his crimes having been adjudicated more than once. Torrefranca also
attempts to again raise the issue of the legality of his statements to the
police, but this issue was decided long ago on appeal, and he shows no new
information to support his claim that his statements were not admissible.

¶8             Finally, Torrefranca’s claims relating to Child Protective
Service (“CPS”) records are not newly discovered and not helpful to
Torrefranca. His attorney sought and received CPS documentation, and
Torrefranca’s vague claims of having come into possession of these
documents in 2015 are not enough to explain why he raised these issues in
such an untimely manner. In any event, Torrefranca’s own exhibit shows
the victim complained of his crimes, and the report itself states the
complaints of the victim relating to sexual abuse are “SUBSTANTIATED.”
The facts were available at the time of trial, Torrefranca was not diligent in
bringing them to the court’s attention, and these documents would not
“likely have altered the verdict, finding, or sentence if known at the time of
trial.” State v. Bilke, 162 Ariz. 52, 52-53 (1989) (stating the requirements for
a colorable claim of newly discovered evidence).




                                       4
               STATE v. TORREFRANCA
                 Decision of the Court

¶9   For the foregoing reasons, we grant review but deny relief.




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




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