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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      PETER M. LECHUGA, Petitioner.

                         No. 1 CA-CR 15-0780 PRPC
                              FILED 7-20-2017


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2012-118346-002 DT
    The Honorable Charles Donofrio III, Judge Pro Tempore (Retired)

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By David R. Cole
Counsel for Respondent

Peter M. Lechuga, Florence
Petitioner



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.
                            STATE v. LECHUGA
                            Decision of the Court

C R U Z, Judge:

¶1            Petitioner Peter M. Lechuga seeks review of the superior
court’s dismissal of the underlying petition for post-conviction relief. “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,
166 P.3d 945, 948 (App. 2007). We have considered the petition for review
and find that Lechuga has not sustained his burden of establishing such
abuse here. Therefore, we grant review but deny relief.

¶2            Lechuga was indicted on two counts of aggravated driving or
actual physical control while under the influence of intoxicating liquor or
drugs with a suspended or revoked driver’s license. The state filed
allegations of five prior felony convictions and historical priors; two of
which were also for aggravated driving under the influence. Lechuga
pleaded guilty to one count of aggravated driving or actual physical control
while under the influence of intoxicating liquor or drugs with one prior
felony conviction. The state, in turn, dismissed the second count on the
indictment and the remaining allegation of historical prior felony offenses.
The superior court then sentenced Lechuga, within the range stipulated to
in the plea agreement, to five years’ imprisonment and awarded pre-
incarceration credit.

¶3            Lechuga filed a timely notice of post-conviction relief and the
superior court appointed counsel to represent Lechuga. Post-conviction
relief counsel, after reviewing the trial materials, found no claims for relief
to raise, filed a notice of completion of post-conviction review, and
requested an extension of time for Lechuga to file a pro per petition for post-
conviction relief. Lechuga’s pro per petition raised issues of fact regarding
the underlying case, and ineffective assistance of counsel for: failure to
challenge those factual issues; failure to raise what he perceived to be a
mitigating circumstance; and for failure to advocate for Lechuga at
sentencing. The superior court denied and dismissed the petition for post-
conviction relief.

¶4             On review, Lechuga argues ineffective assistance of counsel
for failing to adequately and competently defend Lechuga pre-plea and at
sentencing. Lechuga also claims that he received an unfair sentence
resulting from an illegal plea. However, a plea agreement waives all non-
jurisdictional defenses, errors, and defects which occurred prior to the plea.
State v. Moreno, 134 Ariz. 199, 200, 655 P.2d 23, 24 (App. 1982). The waiver
of non-jurisdictional defects includes deprivations of constitutional rights.
Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendant


                                       2
                            STATE v. LECHUGA
                            Decision of the Court

has solemnly admitted in open court that he is in fact guilty of the offense
with which he is charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that occurred prior to the
entry of the guilty plea.”). Lechuga’s complaints regarding trial counsel’s
failure to challenge the blood alcohol concentration level based on the
variance in breath test results, and his claim that he was forced to drive due
to his brother’s medical status, are barred. Further, a guilty plea need only
be established by strong evidence; there is no requirement of guilt beyond
a reasonable doubt. State v. Salinas, 181 Ariz. 104, 106, 887 P.2d 985, 987
(1994). The factual basis for a plea agreement may be ascertained from the
extended record. State v. Sodders, 130 Ariz. 23, 25, 633 P.2d 432, 434 (App.
1981). In the instant case, a review of the record indicates that Lechuga’s
factual basis was supported by a blood draw test taken an hour and twenty-
two minutes after the stop with a blood alcohol concentration higher than
that of the breath test.1 Lechuga has provided no facts to substantiate his
claims regarding the legality of the plea.

¶5            Lechuga’s argument that the sentencing range he agreed to
and the subsequent sentence he received were illegal has no basis in fact or
law. The state alleged five prior felonies of which two were for aggravated
driving under the influence. Lechuga pleaded guilty to one count of the
charged offenses with one prior felony conviction and was sentenced
accordingly. The record indicates that Lechuga was aware of his sentencing
range as he participated in a lengthy and thorough settlement conference.
The record further establishes that the court did specifically find
aggravating circumstances in support of the slightly aggravated sentence
which was well within the stipulated range. Lechuga has failed to
demonstrate that the superior court abused its discretion by imposing a
slightly aggravated sentence.

¶6             Finally, 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. Strickland v. Washington, 466 U.S. 668, 687 (1984);
State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985). 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.” Strickland, 466 U.S at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. If a
defendant fails to make a sufficient showing on either prong of the

1      This evidence was provided by the state, in response to the superior
court’s question regarding the blood test.


                                      3
                           STATE v. LECHUGA
                           Decision of the Court

Strickland test, the superior court need not determine whether the defendant
satisfied the other prong. State v. Salazar, 146 Ariz. 540, 541, 707 P.2d 944,
945 (1985). Lechuga has failed to meet his burden to substantiate a claim of
deficient performance by trial counsel on both prongs. He has neither
demonstrated that counsel’s performance fell below the prevailing industry
standard nor that he suffered prejudice due to counsel’s representation.

¶7           Whether to grant or deny post-conviction relief pursuant to
Arizona Rule of Criminal Procedure 32 is within the superior court’s
discretion. This court will not reverse the superior court’s decision absent
an abuse of discretion. State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049,
1057 (1986). Lechuga has failed to raise a colorable claim for which this
court may grant relief. Therefore, while we grant review, we deny relief.




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




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