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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     RONALD LEE MARLIN, Petitioner.

                         No. 1 CA-CR 17-0287 PRPC
                              FILED 3-13-2018


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2012-126430-001 DT
           The Honorable J. Justin McGuire, Judge Pro Tempore

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Ronald Lee Marlin, Kingman
Petitioner



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge David D. Weinzweig joined.
                             STATE v. MARLIN
                            Decision of the Court

C R U Z, Judge:

¶1            Ronald Lee Marlin 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.

¶2            In 2012, Marlin was charged with three counts of aggravated
assault (counts 1, 3, and 4) and one count of resisting arrest (count 2) arising
from events that occurred after police stopped him for weaving his bicycle
in and out of traffic. Marlin pleaded guilty to counts 3 and 4. Count 3
related to Marlin’s attempt to take control of an officer’s gun and count 4
stemmed from touching an officer with an intent to injure. He was
sentenced per the plea agreement to supervised probation for 4 years and a
term of 1 year in jail as a condition of probation. The original presentence
report recommended presumptive prison sentences, to run concurrently.

¶3             Marlin violated his probation two times; he failed to complete
substance-abuse treatment, failed to pay fees, and tested positive for alcohol
consumption numerous times. His probation was reinstated both times.
After his third petition to revoke probation was filed, due to his absconding,
he was sentenced to the presumptive terms of 3.5 years’ imprisonment on
count 3 and 1.5 years’ imprisonment on count 4, to be served consecutively.
Marlin rejected probation and sought sentencing on the same day.

¶4            Marlin filed a notice of petition for post-conviction relief,
which the court allowed to proceed only as to the probation revocation
matter of May 10, 2016. Appointed counsel filed a Notice of Completion of
Review asserting that she could find no claims to raise in a petition for post-
conviction relief. Marlin filed a pro se petition claiming ineffective
assistance of counsel and illegal sentence. He argued his sentences should
run concurrently and that his trial attorney failed to present mitigating
evidence at sentencing. In his petition, he cited his lack of criminal history,
crime-free lifestyle, stable residence for the last 2.5 years, and stable
employment. The State responded, and in his reply, Marlin attached what
he purported to be a “Rule 32.5” affidavit claiming he could not conform
his conduct to the requirements of the law due to child abuse, neglect,
mental illness, and emotional and cognitive disabilities. He did not provide
any other affidavits, medical records, statements, or diagnoses to
substantiate his claims.

¶5            The superior court dismissed the petition finding that Marlin
had failed to establish a colorable claim of ineffective assistance of counsel


                                       2
                             STATE v. MARLIN
                            Decision of the Court

and that the information provided would not have changed the sentencing
outcome.

¶6             Marlin now seeks review of the dismissal of his petition for
relief. Absent an abuse of discretion or error of law, this court will not
disturb a superior court’s ruling on a petition for post-conviction relief.
State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). On review, Marlin bears
the burden of establishing error. See State v. Poblete, 227 Ariz. 537, 538, ¶ 1
(App. 2011).

¶7            Marlin cites no law to support his claim that his sentences
must run concurrently. He committed assaults upon two different officers,
and the offenses charged were two separate felonies. Marlin has no
constitutional right to concurrent sentences for two separate crimes
involving two separate acts. State v. Jonas, 164 Ariz. 242, 249 (1990).

¶8             To state a colorable claim of ineffective assistance of counsel,
Marlin must show that counsel’s performance fell below objectively
reasonable standards and that the deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687 (1985), State v. Nash, 143 Ariz. 392,
397 (1985). Marlin waived a disposition hearing and rejected probation.
The court found that the waiver was knowing, intelligent, and voluntary.
Marlin’s counsel argued for mitigated and concurrent sentences and
emphasized Marlin’s periods of success on probation, his employment, his
difficulties with alcohol, and his successful completion of probation for a
2003 offense. The violation report recommended that probation be revoked
and Marlin be sentenced to presumptive, consecutive terms. Nothing in the
report noted a history of abuse or neglect. Alcohol abuse was the primary
concern. When Marlin spoke at sentencing he did not mention any
childhood abuse or neglect, mental health issues, or substance abuse. The
court indicated that it considered both aggravating and mitigating factors
and the fact that there were two victims in imposing presumptive,
consecutive sentences.

¶9            The burden is on the petitioner seeking post-conviction relief
to show ineffective assistance of counsel, and “the showing must be that of
a provable reality, not mere speculation.” State v. Rosario, 195 Ariz. 264, 268,
¶ 23 (App. 1999). The superior court need not conduct an evidentiary
hearing based on mere generalizations and unsubstantiated claims of
ineffective assistance of counsel. State v. Borbon, 146 Ariz. 392, 399 (1985).
As the superior court correctly noted, Marlin’s counsel did present to the
court most of the mitigating factors he claimed were omitted. There is
nothing in the record that would indicate that Marlin shared any history of


                                       3
                            STATE v. MARLIN
                           Decision of the Court

abuse or neglect with his attorney and it is not mentioned in other records.
The superior court has broad discretion in sentencing. The superior court
did not abuse its discretion when it found that even if counsel had raised
every argument proposed by Marlin, the outcome would have been the
same. As long as the sentence is within the statutory limits, this court will
not disturb the sentence absent a clear abuse of discretion. State v. Ward,
200 Ariz. 387, 389, ¶ 5 (App. 2001).

¶10          For the foregoing reasons, we grant review and deny relief.




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




                                        4
