STATE OF ARIZONA v. JOSEPH ANTHONY OCHOA
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FILED BY CLERK NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND M AY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24. MAY 14 2009 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. JOSEPH ANTHONY OCHOA, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2008-0423-PR DEPARTMENT B MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR-20063956 Honorable Richard Nichols, Judge REVIEW GRANTED; RELIEF DENIED Barbara LaWall, Pima County Attorney By Jacob R. Lines Joseph Anthony Ochoa B R A M M E R, Judge. Tucson Attorneys for Respondent Douglas In Propria Persona ¶1 Pursuant to a plea agreement, petitioner Joseph Anthony Ochoa was convicted of attempted burglary, a dangerous, class three felony. The trial court sentenced him to an aggravated, twelve-year prison term, citing as aggravating circumstances Ochoa s criminal history and the trauma inflicted on the residents of the home he had invaded. In an unsuccessful petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., Ochoa challenged the aggravated sentence. This pro se petition for review followed. Absent a clear abuse of discretion, we will not disturb the trial court s ruling. See State v. Watton, 164 Ariz. 323, 325, 793 P.2d 80, 82 (1990). ¶2 In his petition for post-conviction relief, filed by appointed counsel, Ochoa contended the trial court erred in imposing the aggravated prison term because it had relied, in part, on his juvenile criminal history. Ochoa claimed that history was far too remote to serve as a proper aggravating circumstance. He suggested the court did not give adequate weight to the substantial mitigating circumstances. The court denied relief without an evidentiary hearing, finding it had properly consider[ed] [his] criminal history as an aggravating factor. The court further found that it had considered the mitigation propounded by defense counsel and the contents of the presentence report. ¶3 In his pro se petition for review, Ochoa challenges his aggravated sentence on different grounds. Ochoa suggests the state was required to allege the aggravating circumstances or they had to be expressly included in the plea agreement. That argument, however, is being made for the first time on review, and we therefore need not consider it. 2 See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980) (appellate court will not consider on review issues that have obviously never been presented to the trial court for its consideration ). Moreover, Ochoa is confusing sentence enhancement with aggravation. His sentence was not enhanced with historical prior felony convictions. To the extent Ochoa might be suggesting he was entitled to have a jury determine the aggravating circumstances, he expressly waived any such Blakely 1 -based rights in the plea agreement. He also suggests his sentences should have been less because his codefendant s sentences were not as severe. Not only was this improperly raised for the first time on review, id., but his codefendant s sentences do not affect the propriety of Ochoa s sentences. ¶4 We grant the petition for review, but finding no abuse of the trial court s discretion, we deny relief. _______________________________________ J. WILLIAM BRAMMER, JR., Judge CONCURRING: _______________________________________ PETER J. ECKERSTROM, Presiding Judge _______________________________________ GARYE L. VÃ SQUEZ, Judge 1 Blakely v. Washington, 542 U.S. 296 (2004). 3
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