State v. Cassise ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
LOUIS JOSEPH CASSISE, Petitioner.
No. 1 CA-CR 14-0852 PRPC
FILED 11-1-2016
Petition for Review from the Superior Court in Maricopa County
No. CR2012-133428-001
The Honorable Cynthia Bailey, Judge
REVIEW GRANTED; RELIEF DENIED
APPERANCES
Maricopa County Attorney's Office, Phoenix
By Karen Kemper
Counsel for Respondent
Louis Joseph Cassise, Florence
Petitioner Pro Se
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court in
which Judge Peter B. Swann and Patricia A. Orozco joined.
STATE v. CASSISE
Decision of the Court
G O U L D, Judge:
¶1 Petitioner Louis Joseph Cassise petitions this court for review
from the dismissal of his petition for post-conviction relief. Cassise pled
guilty to ten counts of public sexual indecency to a minor that he committed
against ten different victims over four different dates. The superior court
sentenced him to consecutive, aggravated terms of two years’
imprisonment for counts 1 and 2 and placed him on lifetime probation for
the remaining counts.
¶2 Cassise argues the superior court erred when it imposed
aggravated sentences for counts 1 and 2 because there was no evidence of
harm to the victims, the mitigating circumstances outweighed the
aggravating circumstances and the probation department recommended
lesser sentences. He also argues the court erred when it imposed
consecutive sentences because counts 1 and 2 arose from a single act.
Finally, Cassise argues lifetime probation on the remaining counts is too
onerous, the prosecutor violated the plea agreement when she
recommended no less than the presumptive sentences for counts 1 and 2
and that his counsel was ineffective for failing to raise all of these issues.
¶3 We deny relief. Cassise stipulated to a term of imprisonment
for any period within the available statutory range for count 1. He also
stipulated there were no agreements as to the sentence for count 2. That the
probation department recommended presumptive sentences is of no matter
and nothing in the plea agreement prevented the prosecutor from urging
the court to impose sentences encompassed by the plea agreement.
Regarding the imposition of aggravated sentences, the court found the
harm to the victims was the sole aggravating circumstance. The court had
presided over the case for just over a year by the time of sentencing and
was, therefore, familiar with the facts of the case. The court also noted that
it made its determination based on information in the presentence report
and attached documents, the plea agreement, the State’s sentencing
memorandum and a letter to the court from an unidentified victim’s
representative which described the harm to the victim. While the State’s
sentencing memorandum, the letter to the court and some of the documents
attached to the court’s copy of the presentence report are not in the record
on review, Cassise had the duty to see that all necessary documents are
included in the record. State v. Mendoza, 181 Ariz. 472, 474 (App. 1995).
When matters are not included in the record, we presume the missing
portions support the decision of the trial court. Id.
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STATE v. CASSISE
Decision of the Court
¶4 Regarding Cassise’s other sentencing claims, balancing the
aggravating and mitigating circumstances was a matter for the superior
court, State v. Harvey, 193 Ariz. 472, 477, ¶ 24 (App. 1998), and a court may
impose consecutive sentences when, as here, a single act affects multiple
victims. State v. White, 160 Ariz. 377, 380 (App. 1989). Regarding lifetime
probation, Cassise stipulated to lifetime probation on the remaining counts
as a term of his plea agreement. (I. 78.) Finally, because none of the above
claims were colorable, Cassise failed to present a colorable claim of
ineffective assistance based on the failure to raise these issues below.
¶5 We deny relief on the remaining issues because Cassise did
not raise those issues below. State v. Ramirez, 126 Ariz. 464, 467 (App. 1980);
State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988); State v. Bortz, 169 Ariz. 575,
577 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).
¶6 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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