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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

ISRAEL ANTONIO ROJO, Petitioner.

No. 1 CA-CR 15-0761 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2013-002332-002

The Honorable David B. Gass, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Karen Kemper

Counsel for Respondent

Israel Antonio Rojo, Douglas

Petitioner
STATE v. ROJO

Decision of the Court

2

MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which 

Presiding Judge Kent E. Cattani and Judge Paul J. McMurdie joined.

T H O M P S O N, Judge:

¶1 Petitioner Israel Antonio Rojo seeks review of the trial court’s 

dismissal of the underlying petition for post-conviction relief.

1 “We will 

not disturb a trial court’s ruling on a petition for post-conviction relief 

absent a clear abuse of discretion.” State v. Swoopes, 216 Ariz. 390, 393, ¶ 4,

166 P.3d 945, 948 (App. 2007). We have considered the petition for review 

and find that Rojo has not sustained his burden of establishing such abuse 

here. Therefore, we grant review but deny relief.

¶2 Rojo was indicted on one count of sale or transportation of a 

dangerous drug (methamphetamine, over threshold amount) and 

possession of drug paraphernalia. The state proceeded to allege: (1) three 

historical priors; (2) a felony committed while on release/enhanced 

sentencing pursuant to Arizona Revised Statute (A.R.S.) § 13-708(D); (3)

multiple offenses not committed on the same occasion pursuant to A.R.S. 

§§ 13-703 to -704; (4) aggravating circumstances other than prior 

convictions; and (5) Rojo’s ineligibility for mandatory probation. Rojo pled

guilty to sale or transportation of a dangerous drug as a non-dangerous and 

non-repetitive offense. The superior court subsequently sentenced Rojo, 

per the plea agreement, to the slightly aggravated sentence of twelve 

calendar years’ (flat time) imprisonment and awarded pre-incarceration 

credit.

 

1 Rojo filed a timely notice of for post-conviction relief in the instant 

Maricopa County case CR2013-002332-002 DT and his Maricopa County 

companion case CR2012-143021-002 DT, in which a jury convicted Rojo of 

the alleged offenses. Rojo filed a direct appeal in case CR2012-143021-002,

and the superior court erroneously dismissed the notice of post-conviction 

relief as to both cases, pending the conclusion of the direct appeal. The

court recognized the error, vacated the minute entry and set a filing 

deadline for a petition on Rojo’s 2013 case.
STATE v. ROJO

Decision of the Court

3

¶3 Rojo’s “of right” petition for post-conviction relief raised two 

claims. First, that his sentence was improperly aggravated and next, that 

his trial counsel was ineffective because counsel failed to advise him of and 

explain the plea’s stipulation to a twelve-year flat time sentence. The trial 

court dismissed the petition for post-conviction relief in an order that 

clearly identified and correctly ruled upon the issues raised. 

¶4 On review, Rojo raises three issues: (1) that the court 

committed fundamental error when it sentenced Rojo to an aggravated 

prison term without the aggravating factors being properly determined by 

the court; (2) that counsel was ineffective in his representation of Rojo 

because he failed to advise Rojo as to his right to a mitigation and 

aggravation hearing; and (3) that the trial court erred in failing to hold an 

aggravation and mitigation hearing.

¶5 There is no fundamental error review in a post-conviction 

relief proceeding. State v. Smith, 184 Ariz. 456, 460, 910 P.2d 1, 5 (1996).

Whether to grant or deny post-conviction relief pursuant to Rule 32 is 

within the trial court’s discretion; we will not reverse the trial court’s 

decision absent an abuse of discretion. State v. Schrock, 149 Ariz. 433, 441, 

719 P.2d 1049, 1057 (1986). The record establishes that the court did

specifically find aggravating circumstances in support of the slightly 

aggravated sentence. The trial court discussed and found that Rojo was on 

misdemeanor probation, that Rojo had a criminal history that was not used 

to enhance his sentence by making the offense to which he pled a repetitive 

offense, and the court found that Rojo was on release from the concurrent 

2012 case when Rojo committed sale or transportation of a dangerous drug. 

The court was bound by the statutory sentencing guidelines and explained 

this to Rojo, in great detail, at the settlement conference. Rojo has failed to 

demonstrate that the trial court abused its discretion by imposing a slightly 

aggravated sentence.

¶6 Rojo’s claim of ineffective assistance of counsel on review 

differs from the claim raised in his petition for post-conviction relief. 

Below, Rojo alleged that trial counsel failed to explain the merits of the plea 

agreement and on review, Rojo claims that trial counsel was ineffective for 

failing to advise Rojo of his right to an aggravation and mitigation hearing. 

Rojo’s third claim, that the trial court erred in failing to conduct a hearing 

to establish and determine the aggravating and mitigating factors, is also a 

new issue which was not previously raised below. A petition for review 

may not present issues not first presented to the trial court. State v. Ramirez, 

126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980); State v. Wagstaff, 161 Ariz. 

66, 71, 775 P.2d 1130, 1135 (App. 1988); State v. Bortz, 169 Ariz. 575, 577-78, 
STATE v. ROJO

Decision of the Court

4

821 P.2d 236, 238-39 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii). See also

Swoopes, 216 Ariz. at 403, ¶ 41, 166 P.3d at 958; Smith, 184 Ariz. at 459, 910 

P.2d at 4. The reviewing court will not consider meritorious issues not first

presented to the trial court. Wagstaff, 161 Ariz. at 71, 775 P.2d at 1135. 

Further, “compliance with Rule 32 is not a mere formality.” Canion v. Cole, 

210 Ariz. 598, 600, ¶ 11, 115 P.3d 1261, 1263 (2005). A petitioner must 

“strictly comply” with Arizona Rule of Criminal Procedure 32 to be entitled 

to relief. Id. A 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.” Ariz. R. Crim. P. 32.9(c)(1)(ii). Rojo’s petition for review does

not comply because it raises new arguments. 

¶7 Rojo not only fails to meet his burden to sustain a colorable 

claim for which this court may grant relief, but his petition for review also

fails to comply with Rule 32 and therefore, he is not entitled to relief on two 

of the issues presented.

¶8 For the reasons stated, we grant review but deny relief.