State v. Paez ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
ABEL PAEZ, JR., Petitioner.
No. 1 CA-CR 13-0174 PRPC
FILED 09-02-2014
Petition for Review from the Superior Court in Maricopa County
No. CR2011-006097-002
No. CR2011-006279-001
No. CR2011-115185-002
The Honorable Steven K. Holding, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Respondent
Maricopa County Office of the Legal Advocate, Phoenix
By Frances J. Gray
Counsel for Petitioner
STATE v. PAEZ
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Kenton D. Jones and Chief Judge Diane M. Johnsen joined.
W I N T H R O P, Presiding Judge:
¶1 Petitioner, Abel Paez, Jr., seeks review of the trial court’s
order dismissing his petition for post-conviction relief. After considering
the petition for review, we grant review and deny relief for the reasons
stated below.
I. Background
¶2 This matter involves three cases consolidated for post-
conviction proceedings. In case “A” (CR 2011-006279-001), Paez pled guilty
to one count of aggravated robbery. In case “B” (CR 2011-115185-002), Paez
pled guilty to two counts of armed robbery, one a dangerous felony (Count
9). In case “C” (CR 2011-006097-002), Paez pled guilty to one count of
armed robbery. In exchange for these pleas, the State dismissed seven
additional counts and all allegations of dangerousness, see Ariz. Rev. Stat.
(“A.R.S.”) § 13-704 (West 2014),1 with the exception of Count 9 of Case B.
¶3 The trial court sentenced Paez to nineteen years’
imprisonment for armed robbery as charged in Count 9 of Case B. 2 As
stipulated in the plea agreements, the court suspended the imposition of
sentence for the three remaining counts and placed Paez on three
concurrent terms of five years’ probation, with the terms of probation to
run consecutive to the term of imprisonment. Paez then filed a consolidated
“of-right” petition for post-conviction relief. The trial court found Paez
failed to present any colorable claims for relief and summarily dismissed
the petition. Paez now seeks review. We have jurisdiction pursuant to
Arizona Rule of Criminal Procedure 32.9(c).
1 We cite the current version of the statutes if no revisions material to
our decision have since occurred.
2 The plea agreement required a sentence of 10.5 to 21 years’
imprisonment for Count 9.
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Decision of the Court
II. Sentencing
¶4 The petition for review presents several distinct issues, all of
which address sentencing and most of which focus on the prison sentence
imposed for Count 9. To give these issues and our analysis context, we
provide a detailed history of the sentencing process in these cases.
¶5 At the change of plea hearing, Paez admitted he committed
armed robbery as charged in Count 9 when he entered a convenience store,
used a handgun to threaten the use of force against an employee of the
store, and coerced her to surrender property. Paez committed that robbery
with two accomplices. Paez also provided a factual basis to support each
of his pleas to the counts for which he received probation.
¶6 Before Paez agreed to plead guilty, the State alleged
aggravating factors for sentencing purposes in the three cases. Those
factors were the infliction or threatened infliction of serious physical injury;
the use, threatened use, or possession of a deadly weapon; the presence of
an accomplice; emotional or financial harm to the victim; and gang
membership. The State further alleged Paez committed the offenses
charged in Cases B and C as consideration for the receipt, or in the
expectation of the receipt, of anything of pecuniary value, and in Cases A
and B to promote, further, or assist a criminal street gang. A consolidated
presentence investigation further identified Paez’s criminal history; his
ongoing criminal behavior; his high risk to reoffend; his admitted “gang
association”; his commission of multiple offenses; the violent nature of
those offenses; the presence of accomplices; and the motive of pecuniary
gain as additional sentencing factors.3
¶7 At the sentencing hearing, several witnesses spoke, including
investigating officers, the victim of the aggravated robbery in Case A, that
victim’s father, the victim in Case C, and a witness to the robbery in Case
C. The court also heard messages that two victims in Case B forwarded to
the court through investigating officers. One of those victims was the
victim of a count of armed robbery for which Paez received probation. The
other, however, was the victim of armed robbery identified in Count 1 of
that case, which the court dismissed pursuant to the plea agreement.
Finally, the State played recordings of 911 calls and/or surveillance videos
related to several of the robberies, some of which involved counts to which
Paez pled guilty and some of which involved dismissed counts. The victim
3 Although Paez denied gang “membership,” he admitted he “hung
out” with the gang in question.
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STATE v. PAEZ
Decision of the Court
of Count 9 did not appear at sentencing, submit any information for the
presentence report, or otherwise provide any information for the court’s
consideration. The State, however, played a surveillance video of the Count
9 armed robbery for the court.
¶8 When it came time to impose sentence, the trial court initially
addressed Case A, the aggravated robbery. As it did so, however, the court
addressed the aggravating and mitigating factors for the three cases
collectively, not for just Case A. This is evident from the court’s discussion
of the aggravating factors in the context of the “victims,” the “victims’
statements,” “all files,” the “pattern” of offenses, and the “multiple dates”
on which Paez committed the offenses.
¶9 In its identification of aggravating and mitigating factors, the
trial court noted it had considered the plea agreements, the presentence
report, the victims’ statements, and the statements of family. The court
noted it had considered all factors presented and had reviewed all three
files. The court identified as “potential” aggravating factors the emotional
harm to the victims, the presence of accomplices, the presence of multiple
victims, “the multiple dates, in a pattern,” pecuniary gain, and Paez’s gang
“affiliation.” The court refused to consider Paez’s juvenile history as an
aggravating factor and declined to find the offenses constituted a “spree.”
The court did, however, believe Paez was a threat to public safety. The
court found Paez’s strong family support, his age, and his apparent remorse
were mitigating factors. Finally, the court found the aggravating factors
outweighed the mitigating factors.
¶10 The court then addressed the individual counts. As to the
aggravated robbery in Case A, the court stated it would follow the terms of
the plea agreement and place Paez on five years’ probation. The terms of
probation included the special “gang” terms of probation. As to the armed
robbery in Case C, the court noted, “Again[,] I've considered the previous
factors.” The court stated it would follow the terms of the plea agreement
and place Paez on five years’ probation, including the special “gang” terms.
¶11 The court then addressed the two counts of armed robbery in
Case B. Regarding Count 4, the court stated, “On that matter, based upon
the foregoing for the same reasons I’m placing you on probation, which is
a term and condition of the plea agreement.” After explaining the terms
and conditions of probation for Count 4, the court addressed Count 9:
The Court has reviewed the plea agreement, has reviewed the
aggravating factors, ha[s] reviewed the mitigating factors and
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STATE v. PAEZ
Decision of the Court
does find that the aggravating factors are overwhelming in
this particular case.
The Court notes it’s a strong interest to public safety at
this point in time, sir, so I’m sentencing you to the Arizona
Department of Corrections for a period of 19 years.
III. The Petition for Review
¶12 Paez argues the trial court erred when it considered facts and
circumstances of dismissed counts and counts for which Paez received
probation as aggravating factors for Count 9. Paez argues the court should
have discussed the sentencing factors for each count separately. We deny
relief. First, although “[t]he better practice is to discuss aggravating and
mitigating factors for each count separately . . . that is not an absolute
requirement.” State v. Williams, 182 Ariz. 548, 558, 898 P.2d 497, 507 (App.
1995) (citation omitted), superseded in part on other grounds by Ariz. R. Evid.
104. Second, a trial court may consider a defendant’s criminal character
and criminal history as aggravating factors for sentencing purposes. See
State v. Williams, 134 Ariz. 411, 413-14, 656 P.2d 1272, 1274-75 (App. 1982).
The court may consider the defendant’s criminal character even if the
conduct did not result in a criminal conviction, and even if any charges
were dismissed, as long as there is sufficient information “to demonstrate
that a crime or some bad act was probably committed by [the] defendant.”
State v. Carbajal, 177 Ariz. 461, 463, 868 P.2d 1044, 1046 (App. 1994) (citation
omitted). Therefore, the court could consider facts and circumstances of
other counts, including dismissed counts, in its determination of the
appropriate sentence for Count 9.4 Finally, we will not presume the trial
court, as implied by Paez, did something so nonsensical as find Count 9
itself involved multiple victims and multiple dates. The court referred to
the victims and dates of offenses collectively, and as noted above, the court
could consider Paez’s criminal character and conduct in general in its
determination of the appropriate sentence for Count 9.
¶13 Paez next argues the trial court erred when it considered
emotional harm to the victim as an aggravating factor for Count 9 even
though the victim of Count 9 did not appear at sentencing, submit
4 We will not assume the trial court actually considered any
information from the dismissed counts in its determination of the
appropriate sentence. The court did not indicate it considered any such
information, and the State’s presentation of information from the dismissed
counts does not establish the court considered that information.
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STATE v. PAEZ
Decision of the Court
information for the presentence report, or otherwise provide information
for the court’s consideration. Although the trial court did reference
emotional harm to the victims in its general discussion of aggravating
factors, the court did not actually identify emotional harm to the victim of
Count 9 as an aggravating factor for Count 9. Absent an express finding,
we will not assume the trial court found emotional harm to the victim of
Count 9 if there was no evidence of emotional harm. “Trial judges ‘are
presumed to know the law and to apply it in making their decisions.’” State
v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997) (citations omitted).
Further, the trial court did view a video of Paez committing armed robbery
of the victim in Count 9. Although that video was not admitted into
evidence and is not part of the record on review, we presume it supported
the decision of the trial court. See State v. Mendoza, 181 Ariz. 472, 474, 891
P.2d 939, 941 (App. 1995).
¶14 Paez also argues the trial court erred when it considered the
presence of accomplices as an aggravating factor pursuant to A.R.S. § 13-
701(D)(4). Paez contends this was improper because the State had already
“structured this factor into all three plea agreements.” Although the plea
agreements identified the accomplice liability provisions of A.R.S. §§ 13-301
to -304 as bases of liability, there is nothing in the plea agreements that
prevented the court from considering the presence of accomplices as
aggravating factors. Further, Paez cites no legal authority that would
prevent the court from considering this factor and we are aware of none.
¶15 Paez next argues the trial court erred when it considered the
commission of the offenses over multiple dates and the “pattern” of the
offenses as aggravating factors for Count 9. Paez argues it was improper
for the court to consider these factors because they involved counts that
were dismissed and/or for which he received probation. We deny review
because, for the reasons stated above, the court could consider these factors
as part of Paez’s criminal character and history. See Williams, 134 Ariz. at
413-14, 656 P.2d at 1274-75; Carbajal, 177 Ariz. at 463, 868 P.2d at 1046. We
also note there is no evidence the court actually considered the dates or
patterns related to dismissed counts as aggravating factors for Count 9.
¶16 Paez also contends the trial court erred when it considered his
“multiple victims” as an aggravating factor for Count 9. Paez argues the
State provided no notice it would seek to utilize this as an aggravating
factor and Count 9 had only one victim. For the reasons noted above, the
court could consider Paez’s criminal character and history when
determining the appropriate sentence to impose for Count 9. This includes
the fact Paez committed multiple criminal offenses that involved multiple
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STATE v. PAEZ
Decision of the Court
victims, regardless of the fact Count 9 itself had only one victim. Regarding
notice, within the numerous counts with which the State charged Paez, the
State identified seven different victims. The counts to which he pled guilty
involved four different victims. Further, the presentence report identified
Paez’s commission of multiple offenses as a sentencing factor, and Paez
knew those multiple offenses involved multiple victims.5 Therefore, for
purposes of due process, Paez had adequate notice the court might consider
the existence of multiple victims as a sentencing factor.
¶17 Paez next argues the trial court erred when it considered
pecuniary gain as an aggravating factor for Count 9. See A.R.S. § 13-
701(D)(6). Paez argues Count 9 involved only approximately sixty dollars
and some beer. We deny relief because there is no minimum amount of
pecuniary gain the State must establish before a trial court may find
pecuniary gain as an aggravating factor. Further, there is nothing in the
record to suggest the trial court relied on the aggregate amount of money
taken in all of the offenses to find pecuniary gain as an aggravating factor
for Count 9.
¶18 Paez next contends the trial court erred when it stated it
believed Paez was a threat to public safety. Paez argues the State did not
provide notice it would seek to use this as an aggravating factor. He further
argues he did not threaten or harm the victim in Count 9. We again deny
relief. The court stated its belief as an explanation for why it believed the
sentence it imposed was appropriate. The court’s belief was not a separate
aggravating factor. Further, Paez’s argument regarding the absence of
threats to the victim is patently frivolous.
¶19 Paez next asserts the trial court erred when it considered his
gang “affiliation” as an aggravating factor. Paez first argues the court could
not consider his gang affiliation because the State agreed to dismiss Count
12 of Case B, which charged Paez with participating in or assisting a
criminal street gang. As charged in this case, a person commits assisting a
criminal street gang by committing any felony offense for the benefit of, at
the direction of, or in association with any criminal street gang. A.R.S. § 13-
2321(B). Paez further argues the State identified his gang “membership” as
an aggravating factor, not his “affiliation.” We deny relief. There is no
authority in general nor is there any provision in the plea agreement to
5 Identification of aggravating factors in presentence memoranda or
presentence reports provides adequate notice of the aggravating factors the
State intends to offer for sentencing purposes. State v. Jenkins, 193 Ariz. 115,
121, 970 P.2d 947, 953 (App. 1998).
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STATE v. PAEZ
Decision of the Court
prevent the court from considering Paez’s gang affiliation as an aggravating
factor despite the fact the State agreed to dismiss the count of participating
in or assisting a criminal street gang. Regarding notice, the presentence
report identified Paez’s “gang association” as a sentencing factor. This was
sufficient to provide Paez notice that the State would seek to rely on Paez’s
gang “affiliation” as an aggravating factor.
¶20 Paez next argues his waiver of a jury trial regarding the
existence of aggravating factors was invalid. Paez first argues his waiver
was invalid because the State did not provide sufficient notice of its intent
to use the aggravating factors addressed above. Because we have
previously determined Paez received adequate notice and the trial court
could otherwise consider the factors at issue, we deny relief. Paez also
argues his waiver was invalid because no one told him that, by pleading
guilty based in part on accomplice liability, he was admitting a statutory
aggravating factor.6 We deny relief based on this argument as well because
there is nothing to suggest the court found the existence of accomplices
based on Paez’s guilty plea and Paez has never contested that he committed
the offenses with accomplices.
¶21 Paez next contends the trial court “exposed” him to potential
double jeopardy on the counts for which he received probation when the
court considered the statements of the victims of those counts in its
determination of the appropriate prison sentence for Count 9. Paez argues
that, if the court eventually revokes probation and imposes terms of
imprisonment, the court will consider the harm to the victims and any
statements they may provide, all of which, Paez argues, the court
considered in the context of Count 9. We deny relief. The double jeopardy
protections of the Fifth Amendment “protect against: (1) a second
prosecution for the same offense following acquittal; (2) a second
prosecution for the same offense following conviction; and (3) multiple
punishment for the same offense.” Taylor v. Sherrill, 169 Ariz. 335, 338, 819
P.2d 921, 924 (1991) (citations omitted). “Double jeopardy principles[,
however,] generally do not apply to sentencing proceedings.” State v. Ring,
204 Ariz. 534, 548, ¶ 27, 65 P.3d 915, 929 (2003); accord Monge v. California,
524 U.S. 721, 728 (1998). Further, “[i]n a probation revocation proceeding,
[] a defendant’s double jeopardy rights are not implicated. This is because
the proceeding does not create a risk of conviction and therefore does not
place a probationer in jeopardy within the meaning of the constitution.”
State v. Broman, 228 Ariz. 302, 304, ¶ 6, 265 P.3d 1101, 1103 (App. 2011)
6 Paez does not present this issue in the context of ineffective
assistance of counsel.
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STATE v. PAEZ
Decision of the Court
(citations omitted). If the court ever considers the statements of the victims
in its determination of the appropriate sentences to impose after a
revocation proceeding, that consideration will not be the equivalent of a
second prosecution for the same offense following acquittal or conviction,
nor will it constitute multiple punishment for the same offense.
¶22 The final two issues Paez presents for review assert claims of
ineffective assistance of trial counsel. To state a colorable claim of
ineffective assistance of counsel, a defendant must show 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 (1984). To show prejudice, “[t]he 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.” Id. at 694.
¶23 Paez first argues his trial counsel was ineffective when
counsel failed to advise Paez of the consequences of pleading guilty to
Count 9 based in part on accomplice liability. Paez argues stipulating to
accomplice liability in the plea agreement eliminated the need for the State
to prove the existence of this statutory aggravating factor and permitted the
court to find other non-statutory factors. We deny relief. The State
identified the presence of an accomplice as an aggravating factor before
sentencing. Despite the stipulation in the plea agreement, the State proved
Paez committed the offense with accomplices and Paez has never disputed
he committed the offense with accomplices. As noted above, there is
nothing to suggest the court found the existence of accomplices based on
Paez’s guilty plea alone. We also note motive of pecuniary gain was at least
one other statutory aggravating factor that permitted the court to consider
other non-statutory aggravating factors. See A.R.S. § 13-701(D)(6).
Therefore, pleading guilty based in part on accomplice liability had no
effect on the court’s ability to consider and find the presence of an
accomplice as an aggravating factor for sentencing purposes. Paez has
failed to present a colorable claim of ineffective assistance of counsel.
¶24 Finally, Paez argues his counsel was ineffective when counsel
failed to object to the “unnoticed and inappropriate” aggravating factors
we have addressed above. We deny relief because we have already
determined the State gave sufficient notice of those factors and the trial
court properly considered those factors for sentencing purposes.
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STATE v. PAEZ
Decision of the Court
¶25 For the above reasons, we grant review and deny relief.
:gsh
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