State v. Moreno ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MATTHEW MORENO, Petitioner.
No. 1 CA-CR 15-0289 PRPC
FILED 2-16-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2010-123998-001
The Honorable Janet E. Barton, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By E. Catherine Leisch
Counsel for Respondent
Matthew Moreno, Buckeye
Petitioner
STATE v. MORENO
Decision of the Court
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.
N O R R I S, Judge:
¶1 Petitioner Matthew Moreno petitions this court for review
from the summary dismissal of his petition for post-conviction relief
of-right. We grant review, but deny relief.
¶2 Moreno pled guilty to second degree murder and arson of an
occupied structure. The superior court sentenced Moreno to an aggravated
term of 22 years’ “flat time” for second degree murder and a consecutive,
aggravated term of 12.5 years’ for arson, as stipulated in the plea agreement.
¶3 In his petition for review, Moreno first argues the superior
court should have given him a “mitigation/aggravation hearing.”
Although a defendant has a right to a pre-sentence hearing if he or she
requests one, Ariz. R. Crim. P. 26.7(a), the record does not reflect Moreno,
who was represented by counsel throughout the proceedings, requested a
pre-sentence hearing. Therefore, he was not entitled to a pre-sentence
hearing. Further, the sentencing transcript shows the superior court took
Moreno’s age and his lack of criminal history into account when sentencing
him. The superior court stated, “[W]hile there is clearly mitigation in this
case, which would be the defendant’s age and his lack of a criminal history,
I simply could not find that the mitigation in this case outweighed the
aggravation in light of the brutality and violence that was involved in this
event.”
¶4 Additionally, before the superior court accepted Moreno’s
guilty plea, it advised him that if he pled guilty the court, and not a jury,
would determine any aggravating factors. Specifically, at the change-of-
plea hearing the superior court informed Moreno, “You are giving up your
right to a jury trial and the right to have a jury determine . . . any factors
that could aggravate your sentence. The Court will now determine
aggravating factors, if any.” Moreno then confirmed he understood that by
pleading guilty he was giving up his right to have a jury determine any
aggravating factors. Thus, Moreno waived his right to a hearing on any
aggravating factors. Cf. State v. Brown, 212 Ariz. 225, 229, ¶¶ 16-18, 129 P.3d
2
 STATE v. MORENO
Decision of the Court
947, 951 (2006) (defendant entitled to jury trial on aggravating factors
because he expressly reserved right to challenge aggravating factors in plea
agreement).
¶5 Moreno next argues his aggravated, consecutive sentences are
too harsh because of his minimal participation in the crime. Moreno
stipulated to the aggravated, consecutive sentences, his sentences are
within the available range of punishment, and at the change-of-plea hearing
he admitted he helped beat the victim and set the victim’s house on fire. See
Ariz. Rev. Stat. (“A.R.S.”) § 13-710(A) (Supp. 2016) (sentences for second
degree murder); A.R.S. § 13-702(D) (2010) (sentences for class 2 felony for
first time offender); A.R.S. § 13-1704(B) (2010) (arson of an occupied
structure is a class 2 felony); A.R.S. § 13-711(A) (2010) (imposition of
consecutive sentences).1 Therefore, we reject this argument.
¶6 Moreno also argues his post-conviction relief counsel was
ineffective when he failed to raise these issues and instead filed a notice that
he had been unable to find any colorable claims for post-conviction relief.
Because these claims are not colorable, however, post-conviction counsel
was not ineffective in not raising them.
¶7 Finally, while Moreno’s petition for review briefly mentions
additional claims of ineffective assistance of counsel, he provides no
substantive argument, no citation to or application of legal authority and
no citation to the record to support those claims. “Merely mentioning an
argument is not enough . . . .” State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101,
94 P.3d 1119, 1147 n.9 (2004) (citation omitted). If Moreno meant to
incorporate by reference the issues and arguments he made in the superior
court, he may not do so. A petition for review may not present issues
through mere incorporation by reference. Ariz. R. Crim. P. 32.9(c)(1)(iv)
(petition must contain “[t]he reasons why the petition should be granted”
and either an appendix or “specific references to the record,” but “shall not
incorporate any document by reference, except the appendices”); Ariz. R.
Crim. P. 32.9(c)(1)(ii) (petition must state “the issues which were decided
by the trial court and which the defendant wishes to present to the appellate
court for review”); State v. Rodriguez, 227 Ariz. 58, 61 n.4, ¶ 12, 251 P.3d 1045,
1With one exception we have cited to the statutes in effect as
of the date of Moreno’s offense. The Legislature amended A.R.S. § 13-710,
in 2012, but the amendment is immaterial to this decision.
3
STATE v. MORENO
Decision of the Court
1048 n.4 (App. 2010) (declining to address argument not presented in
petition).2
¶8 Thus, for the foregoing reasons, although we grant review, we
deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
2The
superior court addressed but rejected the additional
arguments Moreno failed to properly present to this court.
4