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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                         JOEL CALDERON, Petitioner.

                          No. 1 CA-CR 16-0635 PRPC
                               FILED 10-24-2017


     Petition for Review from the Superior Court in Maricopa County
                          No. CR2013-456846-001
                    The Honorable Sam J. Myers, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Joel Calderon, Florence
Petitioner



                        MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.
                           STATE v. CALDERON
                            Decision of the Court

C R U Z, Judge:

¶1            Joel Calderon petitions this Court for review from the
dismissal of his petition for post-conviction relief, filed pursuant to Arizona
Rule of Criminal Procedure (“Rule”) 32. We have considered the petition
for review and, for the reasons stated, grant review and deny relief.

¶2            In December 2013, Calderon was charged with five counts of
sexual conduct with a minor fifteen years of age or older. Calderon was the
victim’s teacher at the time. Calderon pled guilty to three counts of
attempted sexual conduct with a minor while in a teacher-student
relationship. Calderon admitted that his actions had caused physical,
emotional, or financial harm to the victim and that he was eligible for an
aggravated sentence. The plea agreement provided for stipulated sentences
of no more than five years in prison on count one and lifetime probation on
the other two counts. The remaining charges would be dismissed. The
court accepted the plea agreement and sentenced Calderon to a slightly
mitigated prison term of three years’ imprisonment and lifetime probation.
He was provided with a Notice of Rights of Review, which he signed on
December 5, 2014.

¶3             In June 2016, Calderon filed a petition for post-conviction
relief alleging that his sentence of lifetime probation was an illegal sentence
and that his trial counsel had been ineffective for failing to recognize the
illegal sentence. The superior court dismissed the petition as untimely
finding that Calderon’s claim—that the delay in filing was through no fault
of his own—was insufficient. The court further found that Calderon had
failed to identify any new facts and that his recent discovery of legal issues
did not supply a basis for relief pursuant to Rule 32.1(f). Calderon filed a
motion for reconsideration, which was denied.

¶4            Calderon filed a timely Petition for Review claiming the
superior court abused its discretion in finding his petition for post-
conviction relief was untimely and that he had failed to demonstrate that
his claims fell within Rule 32.1(e) and (f). He also claims his sentence of
lifetime probation is illegal and that his trial counsel was ineffective.

¶5             Absent an abuse of discretion or error of law, this Court will
not disturb the superior court’s ruling on a petition for post-conviction
relief. See State v. Gutierrez, 229 Ariz. 573, 576-77, ¶ 19 (2012). On review,
Calderon bears the burden of establishing error. See State v. Poblete, 227
Ariz. 537, 538, ¶ 1 (App. 2012). Calderon has failed to meet his burden.




                                      2
                           STATE v. CALDERON
                            Decision of the Court

¶6             A notice of post-conviction relief in a Rule 32 “of-right”
proceeding must be filed within ninety days after the entry of judgment or
sentence. Ariz. R. Crim. P. 32.4(a). A notice of post-conviction relief may
be summarily dismissed as untimely if not filed within ninety days. State
v. Rosario, 195 Ariz. 264, 266, ¶ 7 (App. 1999).

¶7             Calderon attempts to circumvent the timeliness requirement
of his petition for relief by claiming he did not discover the legal theory
upon which the petition was based until May 2016. Newly discovered
material facts are facts that are discovered after trial, although they existed
before trial, and the evidence could not have been discovered or produced
at trial or on appeal through reasonable diligence. The evidence must be
material and probably would have changed the verdict or sentence. State
v. Saenz, 197 Ariz. 487, 489, ¶ 7 (App. 2000). Here, Calderon states that he
only discovered a legal theory to pursue his claim in May 2016, and that his
failure to discover his legal theory earlier was not his fault. He merges Rule
32.1 subsections (e) and (f) to excuse his failure to file within the timeline.
He does not explain why he could not have filed within the timeline and
provides nothing beyond his own conclusory assertions that his petition
should be considered. The superior court correctly dismissed the petition
as untimely.

¶8             Even if Calderon had filed his petition for post-conviction
relief in a timely manner, his argument as to the legality of the imposition
of lifetime probation fails. Lifetime probation was authorized by statute at
the time Calderon committed his offense in 2013. See State v. Peek, 219 Ariz.
182, 184, ¶ 10 (2008) (“lifetime probation was clearly available for an
attempted child molestation occurring . . . after the effective date of
[Arizona Revised Statutes section 13-902(E)’s] 1997 amendment.”).

¶9             Calderon’s claim that a jury needed to find aggravating
factors, and thus that the court was stripped of jurisdiction to sentence him,
is erroneous. He admitted to the aggravating factor of physical, emotional,
or financial harm to the victim in the plea agreement. A defendant may
waive his Apprendi1 rights by stipulating to the relevant facts or consenting
to judicial fact-finding. State v. Price, 217 Ariz. 182, 185, ¶ 10 (2007). The
plea agreement highlighted Calderon’s admission of harm to the victim.

1      Apprendi rights recognize a defendant’s right to have the jury
determine facts relevant to increasing a penalty beyond the prescribed
statutory maximum sentence, Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), although a defendant can waive those rights by stipulation. Blakely
v. Washington, 542 U.S. 296, 310 (2004).


                                      3
                          STATE v. CALDERON
                           Decision of the Court

“When a defendant stipulates, confesses or admits to facts sufficient to
establish an aggravating circumstance, [the court] will regard that factor as
established.” State v. Murdaugh, 209 Ariz. 19, 30, ¶ 51 (2004) (internal
quotations omitted). Additionally, Calderon was not sentenced to an
aggravated prison term on either count, but rather to a mitigated prison
term on one count followed by probation on two other counts. Calderon’s
sentence was legally imposed.

¶10            Because Calderon bases his claim of ineffective assistance of
counsel on a faulty illegal sentence and jurisdictional arguments, his
allegation of ineffective assistance of counsel also fails.

¶11            The superior court correctly found it had subject matter
jurisdiction to sentence Calderon. The petition was correctly dismissed as
untimely and none of the exceptions cited by Calderon apply. He also fails
to establish any colorable claims.

¶12          For the above stated reasons, we grant review and deny relief.




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




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