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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        TREMAINE NEAL, Petitioner.

                         No. 1 CA-CR 17-0384 PRPC
                              FILED 5-22-2018


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2013-002031-001
                 The Honorable Teresa A. Sanders, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Gerald R. Grant
Counsel for Respondent

Tremaine Neal, Kingman
Petitioner
                              STATE v. NEAL
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge David W. Weinzweig joined.



B R O W N, Judge:

¶1            Tremaine Neal petitions this court for review from the
dismissal of his petition for post-conviction relief, filed pursuant to Arizona
Rule of Criminal Procedure 32.1. We have considered the petition for
review and, for the reasons stated, grant review and deny relief.

               FACTUAL AND PROCEDURAL HISTORY

¶2            In April 2013, Neal was indicted on three counts of sexual
conduct with a minor under fifteen years of age, all class two felonies and
dangerous crimes against children, occurring between December 2012 and
January 2013. In November 2014, he pleaded guilty to three counts of
attempt to commit molestation of a child in violation of Arizona Revised
Statutes (“A.R.S.”) sections 13-1001 and 13-1410,1 all class three felonies and
dangerous crimes against children. The plea agreement contained a
stipulated sentence of 10 years’ imprisonment for the first count and
lifetime probation on the remaining counts. After a thorough plea colloquy,
the court accepted the guilty plea and sentenced Neal in accordance with
the plea agreement.

¶3             In February 2016, Neal filed an untimely notice of post-
conviction relief advising the failure to timely file was not his fault. The
court appointed counsel who, after reviewing the record and discussing the
case with Neal, could not identify any colorable or meritorious claims. Neal
then filed a pro se petition for post-conviction relief alleging his convictions
violated double jeopardy; his sentences were illegally enhanced, excessive,
and violated equal protection; he did not knowingly and intelligently enter
the plea agreement; and his counsel was ineffective by failing to identify
the purported double jeopardy and sentencing errors. After full briefing,
the superior court summarily dismissed the petition finding that Neal had


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


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                              STATE v. NEAL
                            Decision of the Court

failed to state any colorable claims that would entitle him to relief. Neal
raises the same claims in his petition for review.

                               DISCUSSION

¶4             We will not disturb a superior court’s ruling on a petition for
post-conviction relief absent an abuse of discretion. State v. Miles, 243 Ariz.
511, 514, ¶ 7 (2018). We do not review the record in a post-conviction relief
proceeding for fundamental error. See State v. Smith, 184 Ariz. 456, 460
(1996). Thus, on review, Neal bears the burden of establishing error. See
State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011).

¶5              Neal argues he cannot be charged with and sentenced to three
separate and distinct acts of attempted child molestation because they
occurred on the same day and involved the same victim. However, our
supreme court has held that “each incident of the conduct proscribed by
[A.R.S.] § 13-1410 is a separate offense.” Spencer v. Coconino Cty. Superior
Court, 136 Ariz. 608, 611 (1983). The facts underlying the plea agreement
establish that Neal committed three separate crimes (attempted child
molestation) through three separate and distinct acts. Accordingly, Neal
fails to state a colorable claim of double jeopardy.

¶6             Neal argues his sentences were illegal and excessive. We
disagree. Neal was sentenced to the presumptive term of 10 years’
imprisonment for the first count of attempted child molestation. See A.R.S.
§ 13-705(J). A sentence is not unlawful if it is within the statutory range.
See State v. House, 169 Ariz. 572, 573 (App. 1991). Neal was also given
lifetime probation as an alternative to prison for the remaining two counts.
See A.R.S. § 13-902(E) (authorizing the court to impose a term of probation
after a conviction for attempted molestation “up to and including life” if
probation is available and “the court believes [it] is appropriate for the ends
of justice”). Moreover, “[p]robation is not a sentence.” State v. Muldoon, 159
Ariz. 295, 298 (1988). The record reflects Neal was sentenced in accordance
with the laws in effect at the time of his offense, and he cites no authority
suggesting otherwise.

¶7            Neal also argues his sentences violate equal protection.
Although he identifies several situations where he believes more serious
crimes are granted more lenient sentences, none of these scenarios involve
the statute under which Neal was sentenced: A.R.S. § 13-705(J). See State v.
McPherson, 228 Ariz. 557, 563-64, ¶¶ 17-21 (App. 2012) (rejecting argument
that classifying and punishing possession of child pornography as a
dangerous crime against children is violative of equal protection because it



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                              STATE v. NEAL
                            Decision of the Court

is “less serious” than other dangerous crimes against children which are
eligible for less severe punishment). The legislature’s prescription of harsh
sentences for dangerous crimes against children does not violate equal
protection.

¶8            Neal next claims that his plea was not knowing or intelligent.
The record belies his claim. The settlement conference transcript shows that
Neal understood the charges against him, asked questions about the
applicable law, expressed his opinion as to the fairness of the plea offer, and
requested and received more time to consider the offer. At the change of
plea hearing, Neal indicated he was not on any medications, read and
understood the plea agreement, went over the agreement with his attorney
in detail, had not been coerced, agreed with the sentence, understood he
could only withdraw for manifest injustice, and avowed that he was
entering into the agreement voluntarily.           Disputes regarding the
voluntariness of a plea are meritless, where, as here, the trial court creates
a record evidencing an effective waiver. See State v. Hamilton, 142 Ariz. 91,
92-93 (1984).

¶9             Neal’s claims of ineffective assistance of counsel hinge on a
finding that his convictions and sentences were illegal. Because we find no
error, Neal cannot demonstrate deficient performance or prejudice. See
State v. Nash, 143 Ariz. 392, 397, 399-400 (1985) (using the test for ineffective
assistance of counsel as outlined in Strickland v. Washington, 466 U.S. 668
(1984)). Accordingly, his claim of ineffective assistance of trial counsel fail.

                                CONCLUSION

¶10           We grant review and deny relief.




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




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