State v. Harwood ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JAMES TYLER HARWOOD, Petitioner.
No. 1 CA-CR 15-0723 PRPC
FILED 7-6-2017
Petition for Review from the Superior Court in Mohave County
No. CR-2013-1389
The Honorable Derek C. Carlisle, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Mohave County Attorney’s Office, Kingman
By Matthew J. Smith
Counsel for Respondent
James Tyler Harwood, Florence
Petitioner
STATE v. HARWOOD
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.
J O N E S, Judge:
¶1 James Harwood petitions this Court for review from the
summary dismissal of his petition for post-conviction relief of-right. For
the following reasons, we grant review but deny relief.
¶2 Harwood pled guilty to two counts of attempted sexual
conduct with a minor, both dangerous crimes against children committed
in 2007. The trial court sentenced Harwood to a mitigated term of five
years’ imprisonment for one count and placed him on fifteen years’
probation for the second count. Harwood filed a timely petition for post-
conviction relief, which the court summarily dismissed. Harwood now
petitions this Court for review.
¶3 Harwood first argues the trial court erred when it imposed a
mitigated prison sentence for the first count, rather than placing him on
probation as it did for the second count.1 Harwood argues various
mitigating circumstances mandated the imposition of probation. However,
a sentencing court has “very wide discretion in determining an appropriate
sentence.” Wasman v. United States, 468 U.S. 559, 563 (1984). The weight to
be accorded to mitigating and aggravating circumstances for sentencing
purposes is left to the discretion of the sentencing court. State v. Harvey, 193
Ariz. 472, 477, ¶ 24 (App. 1998) (citing State v. Ross, 166 Ariz. 579, 582 (App.
1990)).
¶4 Harwood next argues his offenses were not dangerous crimes
against children because they were not completed crimes, but merely
attempted offenses. Harwood misinterprets the applicable statute, which
includes preparatory offenses, including attempted sexual misconduct with
1 Harwood also argues the trial court erred by considering the State’s
untimely response to his petition for post-conviction relief. But the trial
court may, in its discretion, consider late pleadings. State v. Vincent, 147
Ariz. 6, 8 (App. 1985).
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STATE v. HARWOOD
Decision of the Court
a minor, within the definition of a dangerous crime against children. See
Ariz. Rev. Stat. (A.R.S.) § 13-604.01(N)(1)(c) (2007) (stating “[a] dangerous
crime against children . . . is in the second degree if it is a preparatory
offense”); see also State v. Van Adams, 194 Ariz. 408, 420, ¶ 41 (1999) (noting
attempt is a preparatory offense) (citations omitted). Attempted sexual
conduct with a minor under the age of fifteen committed in 2007 qualifies
as a dangerous crime against children in the second degree punishable
pursuant to A.R.S. § 13-604.01(C) and (J). See State v. Newton, 200 Ariz. 1, 2,
¶ 3 (2001) (“A basic principle of criminal law requires that an offender be
sentenced under the laws in effect at the time he committed the offense for
which he is being sentenced.”) (citing A.R.S. § 1-246 (1995)).
¶5 Harwood also argues that investigators should have
informed him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436
(1966), during a confrontation call with the victim, and that A.R.S. § 13-
1401(3) (2007) (defining “sexual intercourse”), is unconstitutionally vague.
While we find no merit in either regard, Harwood waived these claims
when he pled guilty; a plea agreement waives all non-jurisdictional
defenses, errors, and defects which occurred prior to the plea. See State v.
Owens, 127 Ariz. 252, 253 (App. 1980). Non-jurisdictional defects include
claims a defendant was deprived of constitutional rights. See Tollett v.
Henderson, 411 U.S. 258, 267 (1973) (“[A] guilty plea represents a break in
the chain of events which has preceded it in the criminal process. When a
criminal defendant has solemnly admitted in open court that he is in fact
guilty of the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea.”).
¶6 Finally, Harwood presents two claims of ineffective
assistance of counsel. He argues his counsel withheld documents from him
and withheld documents and other information from the trial court that
were relevant for sentencing purposes. Harwood did not raise them in the
petition for post-conviction relief he filed with the trial court.2 A petition
for review may not present issues not first presented to the trial court. See
State v. Bortz, 169 Ariz. 575, 577 (App. 1991) (citing State v. Ramirez, 126 Ariz.
464, 468 (App. 1980)); Ariz. R. Crim. P. 32.9(c)(1)(ii) (requiring the petition
2 Within his petition for post-conviction relief, Harwood argued
counsel was ineffective when he failed to retain a mitigation specialist to
develop information regarding mitigating circumstances for the trial
court’s consideration. Although similar, the claim Harwood presents in his
petition for review is not the same claim of ineffective assistance raised and
considered by the court below.
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STATE v. HARWOOD
Decision of the Court
for review identify “[t]he issues which were decided by the trial court and
which the defendant wishes to present to the appellate court for review”)
(emphasis added); see also State v. Smith, 184 Ariz. 456, 459 (1996) (holding
there is no right to appellate review for fundamental error in a post-
conviction relief proceeding).
¶7 For these reasons, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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