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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  JORGE ALDAVAZ MUNOZ, Petitioner.

                         No. 1 CA-CR 16-0629 PRPC
                              FILED 10-24-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2014-112195-001
                  The Honorable M. Scott McCoy, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Office of the Legal Advocate, Phoenix
By Frances J. Gray
Counsel for Petitioner

Maricopa County Attorney’s Office, Phoenix
By David R. Cole
Counsel for Respondent
                            STATE v. MUNOZ
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Jennifer B. Campbell joined.


D O W N I E, Judge:

¶1             Jorge Aldavaz Munoz petitions for review from the dismissal
of his petition for post-conviction relief filed pursuant to Arizona Rule of
Criminal Procedure 32. For the reasons stated, we grant review but deny
relief.

¶2             Munoz was indicted on three counts of sexual conduct with a
minor, two counts of molestation of a child, and two counts of furnishing
obscene or harmful items to a minor. On the day of trial, he accepted a plea
offer, pleading guilty to one count of attempted sexual conduct with a
minor, one count of attempted molestation of a child, and one count of
sexual conduct with a minor under 15 years of age. The plea agreement
specifically stated that Munoz agreed the offenses caused emotional harm
to the victim. Per the plea agreement, Munoz was to be sentenced to
lifetime probation for the attempt offenses and to a term of imprisonment
between 20 and 24 years on the sexual conduct charge. The other charges
were dismissed. Munoz was sentenced to 24 years on the sexual conduct
charge and lifetime probation on the remaining two counts.

¶3            Munoz is a native Spanish-speaker who claims he does not
read, write, or understand English. He was provided a Spanish interpreter
for all proceedings, and his attorney spoke fluent Spanish.

¶4            Munoz filed a timely petition for post-conviction relief,
alleging that his sentence had been illegally aggravated and that counsel
was ineffective for failing to explain the consequences of admitting that his
offenses caused emotional harm to the victim and for failing to object to the
aggravated sentence. The issues were fully briefed, and the superior court
thereafter summarily dismissed the petition. Absent an abuse of discretion
or error of law, we will not disturb that ruling. See State v. Gutierrez, 229
Ariz. 573, 579, ¶ 19 (2012).

¶5           Munoz alleges his sentence was illegally aggravated, as he
had no notice the State intended to use emotional harm to the victim as an


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                             STATE v. MUNOZ
                            Decision of the Court

aggravating factor. See State ex rel. Smith v. Conn ex rel. County of Mohave,
209 Ariz. 195, 198–99, ¶¶ 12–14 (App. 2004) (a defendant is entitled to notice
of aggravating factors that the State intends to use at sentencing). But the
plea agreement clearly noted the aggravator of harm to the victim. And a
court can use an aggravator if the defendant waives his Apprendi 1 rights by
stipulating to relevant facts or consenting to judicial fact-finding. Id. at 199,
¶ 14. The superior court correctly found that Munoz did both.

¶6             “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),
quoting State v. Ring, 204 Ariz. 534, 563, ¶ 93 (2003). Munoz claims he did
not understand the significance of admitting the victim was harmed, and
therefore he lacked notice. We disagree.

¶7            During a settlement conference, the court engaged in an
extensive discussion with Munoz about the risks he faced in going to trial,
as well as the terms of the plea agreement and its benefits. The stipulated
sentencing range of 20 to 24 years was repeated several times. Munoz was
given the opportunity to speak with his attorney before making a decision.
Munoz rejected the plea offer at the settlement conference, but later
accepted it on the day of trial, which gave him ample opportunity to consult
with counsel and weigh the risks and benefits of the agreement. At no time
did Munoz ask questions or indicate he did not understand what was being
explained, despite being urged to do so by the court.

¶8            Munoz states he believed he would be sentenced to 20 years
based on statements at the settlement conference. But the range of 20 to 24
years was repeated multiple times during that conference, as well as at the
change of plea hearing. A mistaken subjective impression about the
sentence to be received, absent substantial objective evidence showing the
impression to be reasonably justified, is insufficient to support a claim of an
involuntary plea. See State v. Pritchett, 27 Ariz. App. 701, 703 (1976). Munoz
answered affirmatively to all questions regarding his understanding of the
plea and his voluntary entry into the plea.




1      Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and Blakely v.
Washington, 542 U.S. 296, 305 (2004), require that a jury, rather than the
court, determine any fact, other than a prior conviction, that increases a
defendant’s statutory maximum sentence. See State v. Price, 217 Ariz. 182,
183, ¶ 1 (2007).


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                             STATE v. MUNOZ
                            Decision of the Court

¶9             To state a colorable claim of ineffective assistance of counsel,
a defendant must demonstrate that counsel’s performance fell below
objectively reasonable standards and that the deficient performance
prejudiced the defendant. See Strickland v. Washington, 466 U.S. 668, 687–88
(1984); State v. Nash, 143 Ariz. 392, 397 (1985). To demonstrate prejudice, a
defendant must show that there is a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. If a
defendant fails to make a sufficient showing on either prong of the
Strickland test, the trial court need not determine whether the defendant
satisfied the other prong. State v. Salazar, 146 Ariz. 540, 541 (1985).

¶10           Munoz did not assert a colorable claim of ineffective
assistance of counsel. He presented no evidence, beyond his own
unsupported statements, that counsel failed to properly advise him about
the contents of the plea agreement. On the contrary, counsel avowed he
was “fluent in the Spanish language,” and had explained the plea to Munoz
in his “native language,” and Munoz stated he understood the agreement.
Munoz also stated he was satisfied with the services of his lawyer. Defense
counsel vigorously argued for a mitigated sentence, and he presented
numerous letters supporting Munoz.

¶11            Even if Munoz could demonstrate some deficient
performance by trial counsel, he has not established corresponding
prejudice. He received a sentence that was within the range stipulated to
in the plea agreement and below the maximum authorized by law. Further,
Munoz does not assert that he would have rejected the plea but for
counsel’s alleged deficiencies or that the State would have ignored his
admission of harm to the victim had counsel objected.

¶12         Because the superior court did not abuse its discretion in
dismissing Munoz’s petition, we grant review but deny relief.




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



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