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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GABRIEL MAURICAO GARCIA, Petitioner.

No. 1 CA-CR 19-0359 PRPC

Appeal from the Superior Court in Maricopa County

No. CR1996-000100

The Honorable John R. Doody, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Gabriel Garcia, Kingman

Petitioner

Maricopa County Attorney’s Office, Phoenix

By Amanda M. Parker

Counsel for Respondent

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in 

which Judge Randall M. Howe and Judge Jennifer M. Perkins joined.

FILED 4-30-2020
STATE v. GARCIA

Decision of the Court

2

T H U M M A, Judge:

¶1 Gabriel Mauricao Garcia petitions this court for review of the 

superior court’s order summarily dismissing his petition for postconviction relief, filed pursuant to Arizona Rule of Criminal Procedure 32

(2020).

1 Absent an abuse of discretion or error of law, this court will not 

disturb a superior court’s ruling on a petition for post-conviction relief. See 

State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012). Because Garcia has shown 

no such error, this court grants review but denies relief.

¶2 In January 1997, Garcia pled guilty to molestation of a child, 

a Class 2 felony and dangerous crime against children, as well as two counts 

of attempted child molestation, Class 3 felonies and dangerous crimes 

against children. Garcia was sentenced to a 17-year prison term on the 

molestation conviction and placed on lifetime probation (later reduced to 

five years of probation) on the attempt convictions, to start upon the 

absolute discharge of his prison term. Garcia’s probation grants began in 

September 2013. 

¶3 In March 2017, his probation officer filed a petition to revoke 

alleging several violations of his probation grant. Garcia admitted to 

violating probation in May 2017, and he was reinstated on probation 

through October 2018.

¶4 In September 2017, his probation officer filed another petition 

to revoke. In October 2017, after a proper plea colloquy, including being 

advised that he could be sentenced for up to 10 years in prison, Garcia 

“knowing[ly], intelligent[ly], and voluntar[ily]” admitted that he had 

violated his probation grants. 

¶5 At the disposition hearing held later in October 2017, the court 

revoked Garcia’s probation, and after weighing the mitigating and 

aggravating circumstances, sentenced him to concurrent, presumptive 10-

year prison terms for the attempt convictions. Before doing so, the court 

stated it considered Garcia’s age when he committed the offenses and that 

he had not committed similar crimes as mitigating circumstances and, as 

aggravating circumstances, the harm to the victims, age of the victims, and 

that Garcia was in a position of trust.

1Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated.
STATE v. GARCIA

Decision of the Court

3

¶6 In September 2018, Garcia timely sought post-conviction 

relief, claiming ineffective assistance of counsel resulting in: (1) a violation 

of his 6th Amendment right to a jury determination regarding aggravating 

circumstances, and (2) a lack of adequate notice of the aggravating 

circumstances relied upon by the court. The superior court summarily 

dismissed the petition, finding that “[t]he court has no reason to believe that 

the result would have been more favorable to the defendant even if defense 

counsel’s alleged errors had been cured in the manner alleged in the 

defendant’s Rule 32 petition.” This timely petition for review followed.

¶7 Garcia bears the burden of establishing error of law or an 

abuse of discretion. See State v. Cowles, 207 Ariz. 8, 9 ¶ 3 (App. 2004). Garcia 

has failed to meet this burden. In his October 1996 plea, Garcia waived his 

right to a jury trial and was informed that he could be sentenced to up to 10 

years on the attempt counts. The plea was made knowingly, voluntarily 

and intelligently, and Garcia has provided no grounds to challenge that 

plea. 

¶8 Similarly, Garcia was sentenced to presumptive prison terms, 

not terms greater than presumptive, a fact his arguments do not appear to 

acknowledge. Because the presumptive sentences were within the statutory 

range, and Garcia waived his jury trial rights, he has shown no error of law 

or abuse of discretion, lack of constitutionally required notice or ineffective

assistance of counsel. 

¶9 Garcia takes issue with the court’s weighing the aggravating 

circumstances, believing without their consideration, he would be entitled 

to a lesser sentence. Specifically, Garcia contends that the court should not 

have weighed any aggravating circumstances, especially harm to the 

victim, because no evidence was presented and “the state never alleged any 

aggravators on the record or by pleading, thus it is unclear how the court 

assumed a prosecutorial role and alleged a harm or what type of harm.” 

However, factors that could be considered aggravating, such as the harms 

alleged in the probation violation report, were presented to the judge, who 

had discretion to weigh all relevant factors. Accordingly, this assertion by 

Garcia provides no basis for relief. 
STATE v. GARCIA

Decision of the Court

4

¶10 For these reasons, this court grants review but denies relief 

because Garcia failed to demonstrate that the superior court abused its 

discretion by summarily dismissing his petition for post-conviction relief.