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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   MARCO AGUILAR-MEDINA, Petitioner.

                          No. 1 CA-CR 19-0085 PRPC
                               FILED 12-10-2019


     Petition for Review from the Superior Court in Coconino County
                            No. CR2016-00587
                   The Honorable Mark R. Moran, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Coconino County Attorney’s Office, Flagstaff
By Mark Dillon Huston
Counsel for Respondent

Marco Aguilar-Medina, San Luis
Petitioner
                      STATE v. AGUILAR-MEDINA
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Diane M. Johnsen joined.


J O N E S, Judge:

¶1           Marco Aguilar-Medina petitions this Court for review from
the dismissal of his petition for post-conviction relief, filed pursuant to
Arizona Rule of Criminal Procedure 32. We have considered the petition
for review and, for the reasons stated, grant review and deny relief.

                 FACTS AND PROCEDURAL HISTORY

¶2            In July 2016, Aguilar-Medina drove while intoxicated with his
three children in the car. He lost control of his vehicle and crashed, causing
the death of one child and injuring the other two. The State indicted him
on one count of manslaughter, two counts of aggravated assault, and two
counts of aggravated driving under the influence (DUI).

¶3            The manslaughter charge was premised on the defendant
“[r]ecklessly causing the death of another person,” Arizona Revised
Statutes (A.R.S.) § 13-1103(A)(1),1 and the aggravated assault was based on
the defendant “[i]ntentionally, knowingly or recklessly causing any
physical injury to another person” by using his vehicle as “a deadly weapon
or dangerous instrument,” A.R.S. §§ 13-1203(A)(1), -1204(A)(2). One DUI
count alleged Aguilar-Medina was “impaired to the slightest degree,”
A.R.S. § 28-1381(A)(1), whereas the other count alleged he had a blood
“alcohol concentration of 0.08 or more within two hours of driving,” A.R.S.
§ 28-1381(A)(2). The DUI counts were aggravated because Aguilar-
Medina’s two injured children were both under the age of fifteen. See A.R.S.
§ 28-1383(A)(3)(a).

¶4           In an open plea to the superior court, Aguilar-Medina pled no
contest to all counts of the indictment. The court sentenced him to



1      Absent material changes from the relevant date, we cite the current
version of rules and statutes.



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                       STATE v. AGUILAR-MEDINA
                          Decision of the Court

presumptive consecutive and concurrent terms totaling 25.5 years’
imprisonment.

¶5             Aguilar-Medina timely initiated a proceeding for post-
conviction relief, and the superior court appointed counsel to represent
him. After reviewing the record, correspondence from Aguilar-Medina,
and other pertinent materials, counsel stated she could find no colorable
claims to pursue. With the permission of the court, Aguilar-Medina filed a
pro se petition for post-conviction relief. The court summarily dismissed the
petition, and Aguilar-Medina timely seeks review of that decision.

¶6            In his petition for review, Aguilar-Medina contends he
presented the following colorable claims: (1) his no contest plea to the
manslaughter and aggravated assault counts was not supported by a
sufficient factual basis; (2) the aggravated DUI counts constitute
“multiplicitous” charges that resulted in double jeopardy; and (3) both his
plea attorney and post-conviction counsel provided ineffective assistance.
We review the superior court’s decision for an abuse of discretion. State v.
Amaral, 239 Ariz. 217, 219, ¶ 9 (2016) (citations omitted).

                               DISCUSSION

I.     Petitioner’s No Contest Plea Is Supported By The Record.

¶7            In order for a plea of no contest to be valid, the superior court
must find a factual basis demonstrating “strong evidence of actual guilt,”
including sufficient evidence to support each element of the crime, but the
“facts need not show guilt beyond a reasonable doubt.” State v. McVay, 131
Ariz. 369, 373 (1982) (citing State v. Varela, 120 Ariz. 596, 598 (1978)). The
factual basis may be established through “reports of preliminary hearings,
the defendant’s admissions, and other sources.” Id. (citing Varela, 120 Ariz.
at 598).

¶8            Here, the factual basis supporting Aguilar-Medina’s guilt on
charges of manslaughter and aggravated assault was presented through a
police report and statements by defense counsel. Aguilar-Medina argues
the facts contained therein were insufficient to show he had the requisite
intent to cause his daughter’s death or to use his vehicle as a deadly or




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                       STATE v. AGUILAR-MEDINA
                          Decision of the Court

dangerous instrument in light of evidence that a tire rupture may have
precipitated the accident.2 Both claims lack merit.

¶9            A person acts “[r]ecklessly” when:

       [the] person is aware of and consciously disregards a
       substantial and unjustifiable risk that the result will occur or
       that the circumstance exists. The risk must be of such nature
       and degree that disregard of such risk constitutes a gross
       deviation from the standard of conduct that a reasonable
       person would observe in the situation. A person who creates
       such a risk but who is unaware of such risk solely by reason
       of voluntary intoxication also acts recklessly with respect to
       such risk.

A.R.S. § 13-105(10)(c). Here, the facts presented established “strong
evidence” that Aguilar-Medina recklessly caused his daughter’s death.
Officers found open containers of alcohol at the scene of the accident and
smelled intoxicants on Aguilar-Medina. His blood alcohol concentration
was 0.066 approximately five and one-half hours after the accident and
could reasonably be extrapolated to have exceeded 0.08 at the time of the
crash. The facts show Aguilar-Medina was intoxicated at the time of the
accident and support an inference that his intoxication caused him to lose
control of the vehicle or prevented him from regaining control of the vehicle
in the event of a tire rupture. See State ex rel. Romley v. Brown, 168 Ariz. 481,
482-83 (App. 1991) (observing that evidence of intoxication is relevant to
prove the defendant drove recklessly).

¶10           The facts presented also support Aguilar-Medina’s conviction
of aggravated assault, which, when physical injury is caused to another
person by way of a vehicle, can be committed “[i]ntentionally, knowingly
or recklessly.” See A.R.S. §§ 13-1204(A)(2), -1203(A)(1); State v. Dodd, 244
Ariz. 182, 184-86, ¶¶ 8-12 (App. 2017) (finding sufficient evidence the
defendant committed aggravated assault to his passenger where the injury
would not have occurred “but for” the defendant’s conduct and where “the
risk of harm from [the defendant’s] behavior included injuries to a
passenger”); State v. Miles, 211 Ariz. 475, 477, 481-82, ¶¶ 3, 24-27 (App. 2005)



2     One witness said she saw a tire blowout before the accident. Other
witnesses did not see a blowout, and accident investigators concluded that
pavement markings were inconsistent with a failed tire.



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                       STATE v. AGUILAR-MEDINA
                          Decision of the Court

(affirming conviction of aggravated assault against the defendant’s
passenger based on a finding the defendant drove recklessly).

II.    The Charges Were Not Multiplicitous.

¶11           Aguilar-Medina next argues that the aggravated DUI charges
were multiplicitous and that his sentences for those charges violated the
constitutional prohibition against double jeopardy.             Charges are
multiplicitous where they allege “a single offense in multiple counts,”
which “thereby raises the potential for multiple punishments for a single
act.” State v. Scott, 243 Ariz. 183, 186, ¶ 9 (App. 2017) (citation omitted).
Here, Aguilar-Medina does not argue the two DUI charges were
multiplicitous on the face of the indictment but, rather, that the charges
were multiplicitous as proven because the same factual basis — Aguilar-
Medina’s blood alcohol concentration — was used to support convictions
for both counts.

¶12           Contrary to Aguilar-Medina’s argument, the same evidence
may be used to support convictions of multiple counts without triggering
double jeopardy so long as proof of one offense “does not necessarily
include proof of” the other. United States v. Woodward, 469 U.S. 105, 108
(1985) (emphasis omitted); see also Merlina v. Jejna, 208 Ariz. 1, 4, ¶ 12 (App.
2004) (“Offenses are not the same, and therefore not multiplicitous, if each
requires proof of a fact that the other does not.”). In any event, Aguilar-
Medina’s convictions of the two DUI offenses were not necessarily based
on the same evidence as he asserts. While Aguilar-Medina’s blood alcohol
concentration supports his conviction under A.R.S. § 28-1381(A)(2)
(“alcohol concentration of 0.08 or more”), other evidence — e.g., the open
alcohol containers and smell of intoxicants on Aguilar-Medina combined
with the accident — supports his conviction under A.R.S. § 28-1381(A)(1)
(“impaired to the slightest degree”). See State v. Guerra, 191 Ariz. 511, 512,
516, ¶¶ 1-3, 17 (App. 1998) (affirming defendant’s convictions and
sentences on the charges of violating A.R.S. § 28-1381(A)(1), (A)(2), citing to
what was previously numbered as § 28-692(A)(1), (A)(2)); State v. Gill, 234
Ariz. 186, 187-89, ¶¶ 1-4, 6, 11 (App. 2014) (affirming, in relevant part,
defendant’s convictions and sentences for two counts of aggravated DUI,
where “the nature of the car accident suggested it was the result of someone
driving while ‘impaired to the slightest degree’ by alcohol”).




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                        STATE v. AGUILAR-MEDINA
                           Decision of the Court

III.   Petitioner Does Not State a Colorable Claim For Ineffective
       Assistance of Counsel.

¶13           To establish a colorable claim that defense counsel provided
ineffective assistance, “a defendant must show 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). Here, Aguilar-Medina contends his plea attorney did not
advise him that evidence the accident was caused by a tire blowout rather
than his intoxication might provide a viable defense at trial.3

¶14            The record belies Aguilar-Medina’s argument.                  In a
settlement offer his attorney proposed to the State three months before
Aguilar-Medina entered a change of plea, defense counsel made statements
demonstrating that he and Aguilar-Medina had discussed how evidence of
a tire rupture would support a defense that Aguilar-Medina lacked the mens
rea required to prove the State’s case. In addition, Aguilar-Medina stated
in his sentencing memorandum that he had “agree[d] to give up certain
non-frivolous defenses,” including evidence of a tire blowout, in entering
his plea of no contest. Aguilar-Medina’s failure to show incompetence by
his counsel is fatal to his ineffective assistance claim. See State v. Pandeli, 242
Ariz. 175, 192, ¶ 72 (2017).

¶15            Aguilar-Medina also argues that counsel appointed to
represent him in the underlying proceeding for post-conviction relief was
ineffective for failing to investigate and find the issues raised by Aguilar-
Medina in propria persona. In light of our resolution of those issues against
the defendant, his ineffective assistance claim necessarily fails.




3       Aguilar-Medina identifies additional grounds of attorney error in his
petition for review that he did not raise below. We decline to address issues
he did not present to the superior court. See Ariz. R. Crim. P. 32.9(c)(4)(B);
cf. State v. Bortz, 169 Ariz. 575, 577 (App. 1991) (“The law is clear that a court
will not entertain new matters raised for the first time in a motion for
rehearing [on a petition for post-conviction relief].”).


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                 STATE v. AGUILAR-MEDINA
                    Decision of the Court

                          CONCLUSION

¶16       For the reasons set forth above, we grant review but deny
relief.




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




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