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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 BROKALE LYTTE MARQUES, Petitioner.

                         No. 1 CA-CR 17-0657 PRPC
                              FILED 4-26-2018


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2013-003804-001 DT
                 The Honorable David O. Cunanan, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Lisa Marie Martin
Counsel for Respondent

Brokale Lytte Marques, Florence
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
                            STATE v. MARQUES
                            Decision of the Court

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

¶1             Brokale Lytte Marques petitions this court for review of the
dismissal of his petition for post-conviction relief. We have considered the
petition for review and, for the reasons stated, grant review but deny relief.

¶2           In 2013, Marques was indicted on alternative counts of first
degree murder (Count I) and second degree murder (Count II), each a class
one felony, dangerous crime against children, and domestic violence
offense. He was also indicted on Count III, child abuse, a class two felony,
dangerous crime against children, and domestic violence offense.

¶3            After an evidentiary hearing on the voluntariness of his
incriminating statements—which were deemed admissible—and a
settlement conference, Marques agreed to plead guilty to amended Count
I, child abuse, a class two felony and dangerous crime against a child, and
amended Count III, attempted child abuse, a class three felony and
dangerous crime against a child. The superior court dismissed Count II.

¶4            Although the presumptive term for Count I was seventeen
years, the plea provided for a term of twenty-three years’ imprisonment for
Count I, with a consecutive term of probation for Count III. The court
sentenced Marques to twenty-three years’ imprisonment and a consecutive
term of three years’ probation.

¶5           After appointed Rule 32 counsel filed a notice of completion
of review, Marques filed a timely “of right” pro per petition for post-
conviction relief (“PCR”), claiming ineffective assistance of counsel, his
sentence violated the Eighth Amendment and equal protection, the
sentence was otherwise unlawful based on the factors considered, his plea
violated double jeopardy, and his plea was not voluntary. The superior
court summarily denied his petition.

¶6             A plea agreement waives all non-jurisdictional defenses,
errors, and defects that occur before the plea. See, e.g., State v. Toulouse, 122
Ariz. 275, 277 (1979). After a settlement conference, Marques entered a plea
and advised the superior court during the plea colloquy that his plea was
voluntary, and not the result of any force or threats. Generally, statements
to the court at a change of plea regarding voluntariness are binding on a
defendant. See State v. Hamilton, 142 Ariz. 91, 93 (1984).

¶7          Additionally, when Marques originally sought to avoid his
plea agreement just before sentencing via his own pro per request, the
superior court made a finding on the record, again, that his plea was


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                             STATE v. MARQUES
                             Decision of the Court

voluntary, and found no “manifest injustice” to permit him to withdraw his
guilty plea. What is clear from the record is that Marques sought to
reinstate another plea offer, and nothing supports his claim that the plea
was not his decision. The superior court did not abuse its discretion in
finding no “manifest injustice” sufficient to permit withdrawal, or in
denying his PCR seeking to invalidate his plea on voluntariness grounds.

¶8            Marques’ argument that the murder charges constituted
overcharging of the case, which forced him to plead, is a corollary to his
claim of an involuntary plea and has no merit. Arizona Rule of Criminal
Procedure 12.9 exists to challenge any proceedings held before the grand
jury. Marques did not so challenge the indictment. Once he pled guilty, he
agreed to modify the indictment to the offenses to which he pled. He also
agreed to waive or give up any probable cause determinations to which he
pled. Therefore, he has waived any such challenges.

¶9            Because Marques has pled to and been sentenced for a non-
capital offense, we view his case to determine if his sentence is “grossly
disproportionate” to the crime. State v. Berger, 212 Ariz. 473, 475-76, ¶¶ 10-
11 (2006). Pursuant to Berger, we first find the sentencing structure that led
to Marques’ sentence is an appropriate response to the crime of child abuse.
See generally id. at 477, ¶ 17. This advances the goal of preventing and
deterring individuals from causing death or serious injury to children. See
State v. Poehnelt, 150 Ariz. 136, 143 (App. 1985) (“The special interest in
protecting children is another factor affording broader leeway to legislation
directed to that end.” (citation omitted)). Additionally, a prison sentence is
not grossly disproportionate to the crime committed if it arguably furthers
the State’s penological goals, thus reflecting a rational legislative judgment
entitled to deference. Berger, 212 Ariz. at 477, ¶ 17 (citation and quotation
marks omitted).

¶10            Marques stipulated to the term of imprisonment he received
for his plea to class two felony child abuse, in lieu of receiving a possible
term of thirty-five years to life if convicted at trial for the death of his child.
The facts do not reflect that his sentence was a violation of the Eighth
Amendment, “cruel and unusual,” or “grossly disproportionate.”

¶11           The transcripts of his settlement conference and evidentiary
hearing, the pre-sentence report, and the State’s response to his PCR show
Marques left his one-year-old child unattended in a running vehicle for
approximately two hours, took the child to lunch, then again left him in the
same vehicle for almost three hours—with no air conditioning on a very hot
day. When Marques realized what had occurred, he lied about what led to


                                        3
                            STATE v. MARQUES
                            Decision of the Court

the child’s injuries to mall security guards who initially contacted him and
the child, and then lied to the doctor and police before changing his story.
His child’s temperature had reached at least 106 degrees.

¶12           Two days after being placed on life support, the victim was
“removed from life support and declared deceased as a result of the injuries
sustained after being left in a hot car for multiple hours.” Given the actions
of Marques, and the extent of the harm caused by his actions—to which he
fully admitted—we do not conclude either the sentencing structure or his
sentence is unconstitutional.

¶13            Marques also refers to anecdotal evidence in his PCR and
petition for review to argue his sentence violates equal protection based on
dispositions in other cases.            Because no inference of gross
disproportionality exists, however, no intra- or inter-jurisdictional analysis
is required. See State v. Mott, 187 Ariz. 536, 547 (1997). His claim is without
merit.

¶14            Marques claims the superior court relied on an improper
aggravating factor when it referred to “the nature of the offense” in
reaching the stipulated sentence. He complains as well that the court did
not appropriately weigh any mitigating factors, other than remorse, in
reaching a sentence. The weight to be given any mitigating circumstance
rests within the superior court’s sound discretion. State v. Cazares, 205 Ariz.
425, 427, ¶ 8 (App. 2003). A court is not required to make its sentencing
decision based on the mere number of aggravating or mitigating
circumstances. State v. Marquez, 127 Ariz. 3, 7 (App. 1980). Provided the
superior court fully considers the factors relevant to imposing sentence, as
the court did in this case, we will not find an abuse of discretion. See id.

¶15           Before Marques’ stipulated plea, the State alleged the victim
suffered serious physical injury and physical harm. At sentencing, the
superior court found the aggravated sentence was appropriate based on
“the nature of the offense, the harm to the victim that outweigh[s] any
mitigating factors of remorse; [and] therefore[,] that 23-year sentence is
appropriate.” (Emphasis added.) Therefore, the court enumerated an
appropriate factor in accordance with Arizona Revised Statutes (“A.R.S.”)
section 13-701(D)(9).1




1     We cite the version of the statutes in effect at the time the crimes
occurred.


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                           STATE v. MARQUES
                           Decision of the Court

¶16           Additionally, because the victim suffered serious injury, then
died, substantial evidence in the record supports the harm to the victim as
including “serious physical injury.” The “nature of the offense” would
have incorporated the “harm” that occurred, as well as the very young age
of the child. The superior court enumerated the factor or factors it
depended on to justify the stipulations in the plea, and this was based on
evidence in the record. See A.R.S. §§ 13-701(C), -705(D).

¶17             To the extent Marques claims the court could not aggravate
his sentence with the ultimate harm to his child, or the “nature of the
offense” (i.e., circumstances surrounding the offense), his claim lacks merit.
He pled to “intentionally or knowingly” acting “[u]nder circumstances
likely to produce death or serious physical injury.” A.R.S. § 13-3623(A)(1).
The actual injuries to his child constituted both serious physical injury and
suffering that ultimately resulted in death. It is not “double counting,” as
he claims.

¶18           Marques did not need to intend or know his actions would
likely produce death or serious physical injury, but must have intentionally
or knowingly committed the “circumstances” that could have produced the
result. See State v. Payne, 233 Ariz. 484, 505-06, ¶¶ 68-73 (2013). In the
instant case, Marques met the requirement of intentionally or knowingly
placing his child in the position wherein the injuries occurred. The result
went beyond “likelihood” and became the horrific reality of the death of
the young child. The use of the harm to the child was appropriate as an
aggravator. We also note, although not enumerated by the court, the record
clearly supports the age of the child as an aggravating factor, which would
encompass the “nature of the offense” cited by the superior court and
would fall within the statute’s “catchall” provision. See A.R.S. § 13-
701(D)(24).

¶19            Marques claims as a mitigating circumstance—and as a basis
for ineffective assistance of counsel for failing to investigate and produce
mitigating circumstances—alleged cognitive injuries as the result of an
automobile accident years before. The superior court was aware of the 2002
accident, however, which occurred approximately eleven years before
Marques’ charges. However, nowhere in the record, including in the third-
party letters attached to his amended PCR, is there objective third-party
evidence of cognitive dysfunction, or an inability to conform to the dictates
of the law, and Marques attaches no expert reports to support his claim. See
Ariz. R. Crim. P. 32.5(d) (eff. Jan. 1, 2018).




                                      5
                            STATE v. MARQUES
                            Decision of the Court

¶20            Marques’ claim of double jeopardy is also without support.
The record reflects he admitted two separate incidents of child abuse. The
first (represented by Count III) was when he left his child in the car in the
morning for two hours while he went to work. The second, directly
resulting in death, was when—after he took the child to lunch, then
returned—he again left the child alone in the car. The record reflected at
his change of plea that Marques was aware he was admitting two distinct
incidents based on his actions.

¶21            A defendant may waive double jeopardy just as he may waive
other constitutional rights. Dominguez v. Meehan, 140 Ariz. 329, 332 (App.
1983). “[W]aiver of the prohibition against double jeopardy must be
express rather than implied.” State v. Millanes, 180 Ariz. 418, 420 (App.
1994) (citation omitted). A defendant waives double jeopardy by a plea of
guilty. Dominguez, 140 Ariz. at 332. Based on the evidence of record, during
the colloquy it was made clear—and Marques agreed—he was pleading to
separate offenses. Additionally, in his plea agreement, Marques indicated
he waived and gave up “any and all motions, defenses, objections, or
requests” that he either made or could have raised. Therefore, he waived
this claim.

¶22           Moreover, it is irrelevant the acts were committed within a
relatively short time span. See State v. Griffin, 148 Ariz. 82, 86 (1986). Even
assuming his claim was not waived, the incidents are distinct and separate,
and appropriately subject him to separate punishments. The record reflects
he twice left his child unattended in his car on a hot day. There is a clear
separation of actions that supports two charges and two sentences.

¶23           Because none of his claims has merit, it follows there is no
evidence of deficient performance of counsel resulting in prejudice. See
Strickland v. Washington, 466 U.S. 668, 687 (1984), superseded by statute on
other grounds, Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, 110 Stat. 1214 (1996).

¶24           Accordingly, we grant review but deny relief.




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

                                         6
