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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    JOSE JESUS ROMAN, JR., Petitioner.

                         No. 1 CA-CR 16-0376 PRPC
                              FILED 7-20-2017


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2013-430684-001 DT
                  The Honorable Jeffrey A. Rueter, Judge

                     GRANT REVIEW; DENY RELIEF


                                   COUNSEL

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

Jose Jesus Roman, Jr., Kingman
Petitioner



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.
                            STATE v. ROMAN
                           Decision of the Court

C R U Z, Judge:

¶1          Petitioner Jose Jesus Roman, Jr., petitions this court for
review from the dismissal of his petition for post-conviction relief. We
have considered the petition for review and, for the reasons stated, grant
review and deny relief.

¶2            Roman pled guilty to one count of molestation of a child,
with a stipulation to the Arizona Department of Corrections (range of 17-
24 years), and two counts of attempted molestation of a child, with a
stipulation to lifetime probation on both counts. The remaining nine
counts were to be dismissed. Roman was sentenced to 18 years in the
Department of Corrections, and lifetime probation as to the two attempt
counts.

¶3            Roman, represented by counsel, filed a timely petition for
post-conviction relief. The court summarily dismissed the petition.
Roman then filed this timely petition for review re-asserting his claims of
prosecutorial misconduct at the settlement conference, change of plea
hearing and sentencing, ineffective assistance of counsel for not being
prepared at the settlement conference in responding to assertions made at
the settlement hearing by the court and the State, and by not filing a
motion to “have Defendant’s statements suppressed.” Finally, Roman
claims that the court intimidated him into taking the plea, and incorrectly
took the victim’s age into consideration as an aggravating factor at the
time of sentencing.1

¶4            The record provides no support for the claims of
prosecutorial misconduct.    Most of his allegations are conclusory,
subjective, and unsupported by any facts or affidavits of third parties with
personal knowledge. The State indicated that victim’s rights had been
complied with regarding the plea, and explained the plea, and

1      Roman adds claims not contained in his original petition presented
to the superior court. We do not address these. A party may not
supplement the record with any matters not first considered by the
superior court. See State v. Martinez, 134 Ariz. 119, 120, 654 P.2d 53, 54
(App. 1982) (“Appellate courts will review only those matters which
appear in the records of the trial court.”); State v. Ramirez, 126 Ariz. 464,
468, 616 P.2d 924, 928 (App. 1980) (reviewing court may not consider
issues “never . . . presented to the trial court for its consideration.”).




                                     2
                            STATE v. ROMAN
                           Decision of the Court

negotiations leading to the plea in great detail at the settlement
conference. Roman acknowledged the plea was a great benefit. The State
did warn that if Roman initiated contact with the victim through third
parties that she would consider that in her recommendation at sentencing,
but made it clear that she was not holding earlier third-party
communications against him. This does not rise to the level of a threat
and there is no evidence of prejudice. A plea agreement waives all non-
jurisdictional defenses, errors, and defects which occurred prior to the
plea. State v. Moreno, 134 Ariz. 199, 200, 655 P.2d 23, 24 (App. 1982). At
the plea proceeding, Roman avowed to the court his plea was voluntary
and not the result of any force or threats.

¶5            Roman’s claims of misconduct by the State regarding
victim’s rights and the failure to present the victim’s position on the plea,
or at sentencing, are unsupported by the facts and contradicted by the
record. The victim was present either in the court or outside the court
during the plea proceeding. The State indicated victim’s rights had been
complied with. At sentencing, the State indicated that the victim decided
not to be present in person, and read a statement from the victim, who
was aware of the State’s recommendation of 24 years in prison. This is her
right. See Ariz. Rev. Stat. § 13-4428(A)-(B) (2010 & Supp. 2016). The victim
stated she did not feel like Roman “has remorse for what he’s done to
me.” The State was well within its authority to argue regarding Roman’s
law-enforcement background and for an aggravated sentence. There is no
factual support for Roman’s claims of overreaching, prejudice, or a
violation of due process.

¶6             Roman’s allegations do not support a claim for ineffective
assistance of counsel. He was adequately advised of the plea offer and the
relative merits compared to his chances at trial. See State v. Donald, 198
Ariz. 406, 412, ¶ 11, 10 P.3d 1193, 1199 (App. 2000). He has shown nothing
to establish that there were errors and that but for those errors he would
have rejected the plea and gone to trial. See State v. Bowers, 192 Ariz. 419,
424, ¶ 19, 966 P.2d 1023, 1028 (App. 1998). Nor does Roman indicate how
counsel could have convinced the State to further reduce its plea offer.
His counsel filed a sentencing memorandum with multiple exhibits. His
complaint about counsel not moving to suppress statements is not specific
as to what should have been suppressed, the content of the statements, or
the legal basis for suppression. In any event, the waiver of non-
jurisdictional defects includes deprivations of constitutional rights, Tollett
v. Henderson, 411 U.S. 258, 267 (1973), and all claims of ineffective
assistance of counsel not directly related to the entry of the plea. State v.



                                      3
                           STATE v. ROMAN
                          Decision of the Court

Quick, 177 Ariz. 314, 316, 868 P.2d 327, 329 (App. 1993). Roman waived
his right to file any such motions.

¶7            Nor do we find any error by the court in any of the
proceedings. Nothing in the record of the settlement conference shows
the court acted in an “intimidating” manner towards Roman. In relation
to the plea offer, the court noted, “It’s completely your decision with the
advice of your attorney.” At sentencing, the court sentenced Roman to a
slightly aggravated sentence, citing multiple aggravating factors,
including the age of the victim, the abuse of trust involved, and the harm
to the victim that will affect her for life. The court also put multiple
mitigating factors on the record, and considered Roman’s law-
enforcement record as both aggravating and mitigating. Roman fails to
cite, and we find no evidence in the record of undue coercion in the
settlement conference, defects in the plea proceedings, or sentencing.

¶8           Roman has failed to raise a colorable claim for which this
court may grant relief. Therefore, while we grant review, we deny relief.




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




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