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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANIEL CAMPOS, Petitioner. 

No. 1 CA-CR 21-0214 PRPC

Petition for Review from the Superior Court in Maricopa County

Nos. CR 2017-151875-001 and CR 2019-124969-001 

The Honorable Richard J. Hinz, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED IN PART AND 

GRANTED IN PART; REMANDED IN PART

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Robert E. Prather

Counsel for Respondent 

Daniel Campos, Kingman

Petitioner

FILED 3-29-2022
STATE v. CAMPOS

Decision of the Court

2 

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey, Judge Peter B. Swann and Judge D. 

Steven Williams delivered the decision of the Court. 

PER CURIAM: 

¶1 Daniel Campos petitions this court for review from the 

summary dismissal of his request for post-conviction relief (“PCR”) under

Arizona Rule of Criminal Procedure (“Rule”) 33. We have considered the 

petition for review and, for the reasons stated, grant review and partial 

relief, and remand case number CR2017-151875 (“2017 case”) for 

resentencing. 

FACTS AND PROCEDURAL HISTORY

¶2 In April 2018, Campos pled guilty in the 2017 case to one 

count of failure to register as a sex offender, a class four felony. Consistent 

with the plea agreement’s stipulations, the superior court suspended the 

imposition of sentence and placed him on ten years of supervised

probation. 

¶3 In July 2019, Campos pled guilty in case number CR2019-

124969 (“2019 case”) to one count of interference with monitoring devices, 

a class four felony, and based on his guilty plea, the court further found he 

had violated his probation grant in the 2017 case. The plea agreement 

contained the following pertinent stipulations: (1) in the 2019 case, Campos 

would serve a prison term between the minimum term of 1.5 years and the 

maximum term of 3 years, see Arizona Revised Statutes (“A.R.S.”) section

13-702(D) (establishing sentencing ranges for a class four felony); (2) the 

2019 case’s sentence would run consecutively to any prison term imposed 

in the 2017 case; and (3) the State agreed to dismiss one count of seconddegree escape and not to allege his prior felony convictions and probationer 

status for sentence-enhancement purposes. 

¶4 At the sentencing and disposition hearing, the superior court 

identified as aggravating circumstances (“aggravators”), inter alia, 

Campos’s prior felony convictions; his age, noting his convictions “spanned 

three to four different decades”; his previous prison terms; that he 

committed a new offense while on probation; his prior probation violations; 
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Decision of the Court

3 

“the nature of the underlying offenses and the specific facts” of his prior 

convictions; and in the 2017 case, the need to protect the community

because of his failure to comply with his probation conditions and the 

resulting “risk of creating additional victims in the community.” The court

accepted as mitigating circumstances (“mitigators”) Campos’s age, 

remorse, and traumatic childhood experiences. Finding the aggravators 

outweighed the mitigators, the court sentenced Campos to 3 years’

imprisonment in the 2019 case and a consecutive aggravated prison term of 

3.75 years in the 2017 case. 

¶5 Campos timely filed a PCR notice, and the superior court 

appointed counsel to represent him. After PCR counsel informed the court

that she could find no colorable PCR claim to pursue, Campos filed a PCR 

petition in propria persona raising the following claims: (1) in both cases, the 

court unlawfully sentenced him to greater-than-presumptive terms 

because, he maintained, the sentences were not justified by proper 

aggravators; (2) he received ineffective assistance of counsel because trial 

counsel purportedly failed to advise him that at sentencing, the court could

consider as aggravators his prior felony convictions and probationer status

despite the State’s agreement not to enhance his sentence based on those 

facts; (3) the court infringed on his due process rights by considering his

criminal history in imposing sentence; (4) the court lacked subject matter 

jurisdiction to hear the 2019 case on the grounds that the electronic

monitoring requirement “was not valid under the law” and that § 13-3725, 

the statute of conviction, was unduly vague; and (5) the court violated 

Anders v. California, 386 U.S. 738 (1967), by “not requiring [PCR] counsel to 

file . . . a brief referring to anything in the record that might arguably 

support the appeal and that she believes the case to be wholly frivolous” 

and by not independently “search[ing] the record for non-frivolous claims.” 

¶6 We have jurisdiction over Campos’s appeal under Article 6, 

Section 9 of the Arizona Constitution, A.R.S. § 13-4239(C) and Rule 

33.16(a)(1). 

DISCUSSION

¶7 On review, Campos repeats the claims he raised in the 

superior court, arguing the court erred by finding he had not established a 

colorable claim for relief. A defendant is entitled to an evidentiary hearing 

only if the PCR petition presents a colorable claim, State v. D’Ambrosio, 156 

Ariz. 71, 73 (1988), which is one that if true, would have probably changed 

the verdict or sentence, State v. Kolmann, 239 Ariz. 157, 160, ¶ 8 (2016). We 

will not disturb the superior court’s ruling unless the petitioner establishes
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an abuse of discretion. State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011). 

We address Campos’s claims in turn.

I. Illegal Sentences

¶8 Campos first contends the superior court illegally sentenced 

him in both cases. See Ariz. R. Crim. P. 33.1(c). As he did in the superior 

court, he asserts (1) insufficient aggravators supported his greater-thanpresumptive sentences; (2) the court erred by considering his criminal 

history in imposing his sentences, given that the State had agreed not to 

enhance his sentences based on his prior felony convictions and probationer

status; (3) and the State breached the plea agreement by “alleging [his] prior 

felony convictions and that he was on probation at the time of the offense, 

and facts related to those [factors].” 

A. Insufficient Aggravators 

¶9 Section 13-701(D) explicitly enumerates 26 aggravators that 

courts may use to increase a defendant’s sentence, including a prior felony 

conviction within the ten years immediately preceding the date of the new 

offense. A.R.S. § 13-701(D)(11). Section 13-701(D)(27) provides the so-called 

“catch-all” provision, authorizing the trier of fact to consider “[a]ny other 

factor that the [S]tate alleges is relevant to the defendant’s character or 

background or to the nature or circumstances of the crime.” Courts may 

impose the maximum prison term only if one or more aggravators have 

been found or admitted, and a sentence to the aggravated term must be 

supported by two or more aggravators. A.R.S. § 13-701(C); State v. Allen, 248 

Ariz. 352, 368, ¶ 62 (2020). Courts are prohibited from imposing a greaterthan-presumptive sentence based solely on “catch-all” aggravators, but 

once one of the enumerated aggravators have been properly identified, 

courts are then free to use the “catch-all” provision “to impose a sentence 

up to the statutory maximum.” State v. Bonfiglio, 231 Ariz. 371, 373, ¶¶ 9-10 

(2013). 

¶10 Applying those principles here, the maximum sentence in the 

2019 case was justified because the superior court properly found one

enumerated aggravator: Campos’s felony conviction (the 2017 case) within 

ten years of his new offense. See A.R.S. § 13-701(D)(11). Having found an 

enumerated aggravator, the court thus permissibly considered additional

“catch-all” aggravators in imposing his sentences. To the extent Campos 

asks us to reweigh those aggravators and mitigators, we will not do so. State 

v. Harvey, 193 Ariz. 472, 477, ¶ 24 (App. 1998). 
STATE v. CAMPOS

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5 

¶11 Turning to the 2017 case, however, the superior court did not 

find any enumerated aggravator and was therefore prohibited from 

increasing Campos’s sentence beyond the presumptive term. Because the 

court impermissibly relied solely on “catch-all” factors to sentence Campos

to the aggravated term, he is entitled to relief under Rule 33.1(c); 

consequently, the court abused its discretion in dismissing that claim. 

Accordingly, we vacate Campos’s sentence in the 2017 case and remand the 

matter for resentencing. See State v. Ojeda, 159 Ariz. 560, 561 (1989) (“In the 

sentencing context, if the judge relies on inappropriate factors . . . the case 

must be remanded for resentencing.”).

B. Campos’s Additional Sentencing Claims

¶12 Campos’s remaining challenges to his sentences lack merit. 

First, despite his contrary assertion, courts may consider as aggravators a 

defendant’s prior felony convictions and probationer status even when the 

State has stipulated in a plea agreement not to apply those facts for 

sentence-enhancement purposes. See State v. Jackson, 130 Ariz. 195, 196 

(App. 1981) (holding dismissal of a prior conviction allegation in a plea 

agreement did not preclude the sentencing judge from considering that 

conviction as an aggravator); see also State v. Shattuck, 140 Ariz. 582, 584 n.1 

(1984) (collecting cases and explaining “the sentencing judge [may] impose 

an aggravated sentence based on prior conduct even if a conviction for that 

conduct has not been alleged”). Stated differently, Campos erroneously

conflates the sentence-enhancement scheme with the statutory provisions

permitting a court to increase or decrease a sentence within a specified

range. Compare A.R.S. § 13-703 (enhancing sentences for repetitive 

offenders), and A.R.S. § 13-708 (enhancing sentences for offenses committed 

while a defendant was released from confinement) with A.R.S. § 13-701(C) 

(authorizing the maximum sentence upon finding one or more 

aggravators), and A.R.S. § 13-702(B) (authorizing, inter alia, the aggravated 

sentence for first-time offenders under § 702(D) upon finding two or more 

aggravators). 

¶13 Equally unavailing are Campos’s arguments that the superior 

court improperly considered felony convictions that were more than ten 

years old and impermissibly relied on “catch-all” aggravators not alleged

by the State. Although § 13-701(D)(11) requires the superior court to 

consider any felony conviction within the ten years immediately preceding 

the new offense, nothing in the statute prohibits the court from considering 

older felony convictions under the “catch-all” provision. State v. Romero, 173 

Ariz. 242, 243 (App. 1992); see also A.R.S. § 13-701(F) (“If the trier of fact finds

at least one aggravating circumstance, the trial court may find by a 
STATE v. CAMPOS

Decision of the Court

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preponderance of the evidence additional aggravating circumstances.”). 

Further, courts do not err by sua sponte finding aggravators that the State

“had neither alleged nor attempted to separately prove.” State v. Marquez, 

127 Ariz. 3, 5-6 (App. 1980); see also Shattuck, 140 Ariz. at 584 n.1; State v. 

Williams, 134 Ariz. 411, 413-14 (App. 1982) (permitting courts to consider a 

defendant’s criminal history and criminal character in imposing a 

sentence). Therefore, Campos has not shown the superior court erred in 

considering the challenged aggravators. 

II. Lack of Subject Matter Jurisdiction

¶14 The superior court correctly rejected Campos’s assertion that 

the court lacked subject matter jurisdiction to hear the 2019 case. See Ariz. 

R. Crim. P. 33.1(b). “[T]he existence of subject matter jurisdiction is 

determined by the general nature of the charge contained in the complaint.” 

State v. Foster, 191 Ariz. 355, 357, ¶ 6 (App. 1998) (citation and quotation 

marks omitted). The Arizona Constitution confers “original jurisdiction” 

to the superior court to adjudicate felony offenses. Ariz. Const. art. 6, 

§ 14(4); see State v. Maldonado, 223 Ariz. 309, 311, ¶ 14 (2010) (“‘[S]ubject 

matter jurisdiction’ refers to a court’s statutory or constitutional power to 

hear and determine a particular type of case.”). Thus, once the State filed a 

direct complaint initiating a prosecution against Campos for felony offenses 

committed in Arizona, the superior court thereafter properly exercised its 

jurisdiction over the criminal proceedings. Campos does not argue, let 

alone demonstrate, otherwise. 

¶15 Moreover, Campos mischaracterizes his claim as one relating 

to subject matter jurisdiction under Rule 33.1(b). His claim instead 

constitutes a constitutional challenge to § 13-3725, which he waived by 

pleading guilty, along with all other constitutional challenges to the 

resulting conviction. See State v. Leyva, 241 Ariz. 521, 527, ¶ 18 (App. 2017) 

(noting that pleading guilty waives constitutional defects and defenses 

except those relating to the plea’s validity); see also State v. Crocker, 163 Ariz. 

516, 517 (App. 1990) (“[A] challenge to the constitutionality of a statute is a 

nonjurisdictional defense.”). We further note that he provides no authority, 

and we find none, supporting the proposition that § 13-3725 is 

unconstitutional. See State v. Stefanovich, 232 Ariz. 154, 158, ¶ 16 (App. 2013) 

(holding appellant waived claim on review for insufficient argument and 

failure to cite supporting legal authority). He has thus not shown an abuse 

of discretion. 
STATE v. CAMPOS

Decision of the Court

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III. IAC Claim 

¶16 Campos next argues he received ineffective assistance of 

counsel (“IAC”) because trial counsel did not advise him that the superior 

court could consider his prior felony convictions and probationer status 

when imposing his sentences, further asserting he would have rejected the 

State’s plea offer and proceeded to trial had he been so informed.1 See Ariz. 

R. Crim. P. 33.1(a). To establish a colorable IAC claim, the defendant “must 

show both that counsel’s performance fell below objectively reasonable 

standards and that this deficiency prejudiced the defendant.” State v. 

Bennett, 213 Ariz. 562, 567, ¶ 21 (2006). “To be colorable, the claim must 

have the appearance of validity, a determination that the trial court is in a 

better position to make than this court.” State v. Boldrey, 176 Ariz. 378, 380 

(App. 1993). A claim has the appearance of validity if the appellant’s 

contentions, taken as true, successfully show ineffective assistance of 

counsel. State v. Suarez, 23 Ariz. App. 45, 46 (1975). 

¶17 In the PCR petition, Campos supported his IAC claim by 

attaching his own affidavit stating that he “was not aware that the court on 

its own may still find [his prior felony convictions and probationer status 

as] aggravating factors to increase [his] sentences in spite of the [S]tate’s 

promise not to allege those very aggravating factors” and that he would not 

have pled guilty had he been so aware. When evaluating whether an IAC 

claim is colorable, although a court must accept as true the facts alleged in 

a petitioner’s affidavit, a petitioner’s self-serving assertions do not bind the 

court, particularly when the record does not substantiate the allegations. 

See, e.g., State v. Goswick, 142 Ariz. 582, 585 (1984) (explaining averments in 

the petitioner’s “self-serving affidavit” did not alone provide a “sufficient 

factual basis” to support his IAC claim); see also State v. Wilson, 179 Ariz. 17, 

1 Campos did not raise an IAC claim based on trial counsel’s failure to 

object to the superior court’s imposition of an aggravated sentence based 

solely on “catch-all” aggravators; therefore, he has waived any such claim. 

See Ariz. R. Crim. P. 33.2(a)(3) (precluding petitioner from obtaining relief 

on a constitutional claim waived in a previous PCR proceeding); State v. 

Spreitz, 202 Ariz. 1, 2, ¶ 4 (2002) (precluding successive IAC claims when 

they were, or could have been, raised in a prior PCR proceeding); see also

Ariz. R. Crim. P. 33.16(c)(2)(B) (limiting review to “issues the trial court

decided”); State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988) (reviewing court 

will not consider even meritorious issues that were not first presented to 

the superior court). 
STATE v. CAMPOS

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20 (App. 1993) (finding the petitioner’s own affidavit was insufficient to 

overcome inference of waiver). 

¶18 Here, Campos has not carried his burden of demonstrating

the superior court abused its discretion in concluding the record did not 

sufficiently support his allegations to require an evidentiary hearing. As 

the court explained in its dismissal order, the record reflects that during the 

change-of-plea colloquy, Campos acknowledged that he had “read [the]

plea agreement in its entirety and that [he] understood its contents,” that 

he had “discussed [the] plea agreement with [his] attorney,” and that his 

attorney had “answered all of [his] questions.” See State v. Hamilton, 142 

Ariz. 91, 93 (1984) (entitling courts to rely on a defendant’s responses at the

change-of-plea hearing in determining whether a defendant knowingly, 

voluntarily, and intelligently entered a guilty plea). Furthermore, at the 

beginning of the sentencing hearing, the superior court noted that it had 

“reviewed a copy of the presentence report, the State’s written 

recommendation, the Defendant’s criminal history and the plea agreement 

in the new case.” Nevertheless, when Campos later gave his allocution, he 

made no inquiry into, much less protest, the court’s consideration of his 

criminal history. And after the court explicitly found—without objection—

that his prior felony convictions and probationer status constituted

aggravators, he sought no clarification regarding the propriety of the 

court’s reliance on those facts. 

¶19 Absent some showing in the record to support Campos’s 

averments in his affidavit, his IAC claim does not have the required 

appearance of validity. See Suarez, 23 Ariz. App. at 46; Boldrey, 176 Ariz. at 

380; see also State v. Pritchett, 27 Ariz. App. 701, 703 (1976) (“A defendant’s 

mistaken subjective impressions gained from discussions with his lawyer, 

absent substantial objective evidence showing such impressions to be 

reasonably justified, do not constitute sufficient grounds upon which to set 

aside his guilty plea.”). The superior court therefore reasonably rejected his 

claim that due to ineffective assistance, he lacked the information necessary 

to make a knowing and intelligent decision to plead guilty. See State v. 

Borbon, 146 Ariz. 392, 399-400 (1985) (explaining courts need not conduct an 

evidentiary hearing based on mere generalizations and unsubstantiated

IAC claims). Because Campos has failed to overcome the strong 

presumption that trial counsel rendered effective assistance, Kolmann, 239 

Ariz. at 160, ¶ 10, his IAC claim does not warrant relief. 
STATE v. CAMPOS

Decision of the Court

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IV. Anders Claim

¶20 Finally, we reject Campos’s contention that the superior court 

violated Anders, given that defendants are not entitled to Anders-type 

reviews in Arizona PCR proceedings. State v. Chavez, 243 Ariz. 313, 317, 

¶ 12 (App. 2017). PCR counsel was thus not required to file an Anders brief

in Campos’s case, nor was Campos “entitled to a review of the record by 

the superior court for arguable issues.” Chavez, 243 Ariz. at 314, ¶ 1. 

CONCLUSION

¶21 For these reasons, we grant review, and grant partial relief by

vacating Campos’s sentence in the 2017 case and remanding that case to the 

superior court for resentencing in accordance with this decision. We 

otherwise deny relief.