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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      JOHNNY LEE HOUSE, Petitioner.

                         No. 1 CA-CR 15-0137 PRPC
                              FILED 2-2-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2013-102061-001
                The Honorable William Brotherton, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Susan Luder
Counsel for Respondent

Johnny Lee House, Florence
Petitioner



                       MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.
                            STATE v. HOUSE
                           Decision of the Court

C A T T A N I, Judge:

¶1           Johnny Lee House seeks review of the superior court’s
summary dismissal of his of-right petition for post-conviction relief under
Arizona Rule of Criminal Procedure 32. For reasons that follow, we grant
review but deny relief.

¶2           House pleaded guilty to second degree murder. Pursuant to
a stipulation in the plea agreement, the court sentenced him to a
presumptive term of 16 years’ imprisonment. As required under Arizona
Revised Statutes (“A.R.S.”) § 13-710(A)1 and as House acknowledged in the
plea agreement, the sentence was for a term of “calendar years” or “flat-
time.” As required under A.R.S. § 13-603(I) and as House further
acknowledged in the plea agreement, the court imposed a term of
community supervision to begin upon completion of the prison term.

¶3            House argues that the sentencing court impermissibly
imposed a term of community supervision after a “flat-time” sentence. He
further argues his trial counsel was ineffective because she failed to object
to imposition of community supervision, told him that the 16-year sentence
was mandatory rather than advising him that the court could reject the
stipulated sentence and impose a lesser term, and failed to investigate or
present mitigation evidence for sentencing purposes. House raised these
issues in his pro se petition for post-conviction relief, which the superior
court dismissed finding no colorable claim.

¶4            We deny relief. A sentencing court must include a term of
community supervision even for a “flat-time” sentence for second degree
murder. State v. Jenkins, 193 Ariz. 115, 119, ¶¶ 11–14 (App. 1998). And for
this reason, counsel was not ineffective for failing to raise an objection to
the term of community supervision.

¶5            Additionally, counsel was not ineffective when she allegedly
told House the presumptive sentence was “mandatory.” The presumptive
sentence was “mandatory” in the sense that it was the stipulated sentence
in the plea agreement; despite House’s claims to the contrary, the court
could not simply reject the stipulated sentence and impose a lesser sentence
without first giving the State the opportunity to withdraw from the plea
agreement. The plea agreement expressly provided that if the sentencing



1     Absent material revisions after the relevant date, we cite a statute’s
current version.


                                     2
                            STATE v. HOUSE
                           Decision of the Court

court rejected any term of the agreement, the State could withdraw from
the agreement and House would waive any claim of double jeopardy.

¶6           Finally, despite House’s assertion to the contrary, counsel did
present mitigating circumstances for the court’s consideration at
sentencing. And because House stipulated to a presumptive term of
imprisonment, any failure to present additional mitigating circumstances
did not prejudice House in any way.

¶7            To the extent House’s petition for review raises additional
issues, we decline to address them because he did not raise those issues in
the petition for post-conviction relief presented to the superior court. See
Ariz. R. Crim. P. 32.9(c)(1)(ii); State v. Bortz, 169 Ariz. 575, 577–78 (App.
1991); see also State v. Smith, 184 Ariz. 456, 459 (1996) (holding that
fundamental error review does not apply in a post-conviction relief
proceeding).

¶8           Accordingly, we grant review but deny relief.




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




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