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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS
D IVISION O NE

S TATE OF ARIZONA
, Respondent
,

v.

D ANIEL CAMPOS
, Petitioner

.

No. 1 CA-CR 21-0214 PRPC

P etition for Review from the Superior Court in Maricopa County No s. CR 2017-151875-001 and CR 2019-124969-001 The Honorable Richard J. Hinz
, Judge Pro Tempore

REVIEW GRANTED ; RELIEF DENIED IN PART AND GRANT ED IN PART ; REMANDED IN PART

COUNSEL
Maricopa County Attorney ’ s Office , Phoenix By Robert E. Prather Counsel for Respondent

D aniel Campos
, Kingman Petitioner FILED 3-29-2022STATE 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 reques t for po st

- 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”) f or 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 b ased 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) th e 2019 case’s sentence would run consecutive ly to any prison term imposed in the 2017 case ; and (3) t he State agreed to dismiss one count of second

degree escape and not to allege his prior felony convictions and probation er statu s for sentence

- enhancement purposes

. ¶4 At the sentenc ing and disposition hearing , the superior court identified as aggr avating circumstances (“aggravators”), inter alia
, Campos’s prior felony conviction s; his age, noting his convictions “ spanned three to four different decades ”; his pr evious prison terms ; that he committed a new offense while on probation ; his prior probation violations ;STATE v. CAMPOS Decision of the Court

3 “the nature of the underlying offense s 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 aggravat ors outweighed the mitigat ors , 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 rais ing the following claims: (1) in both cases, the
court unlawfully sentenced him to greater

- than

- presumptive terms b ecause , he maintained, the sentences were not justified by proper aggravat ors ; (2 ) he received ineffective assistance of counsel because trial counsel purportedly failed to advise him that at sentencing, the court could consider as aggravat ors 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 consider ing his criminal history i n 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 un duly 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, argu ing 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 presen ts a colorabl e claim
, State v. D’Ambrosio , 156 Ariz. 71, 73 (1988), which is one that if true
, would have probabl y 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 establishesSTATE v. CAMPOS Decision of the Court

4 an abuse of discretion

. S tate v. Poblete
, 227 Ariz. 5 3 7, 5 3 8, ¶ 1 ( App. 2011). We address Campos’s claims in turn.

I. Illegal Sentenc es
¶8 Campos first contends the superior court illegally sentence d him in both cases

. See Ariz. R. Crim. P. 33.1( c) . As he did in the superior court, he asserts (1) insufficient aggravat ors supported his greater

- than

presumptive sentences ; (2) the court erred by consider ing his criminal history in imposing his sentences , given that the State ha d agreed not to enhance his sentence s 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 A ggravators
¶9 Section 13 -701(D) explicitly enumerates 26 aggravators that
court s may use to increase a defendant’s se ntence, 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 ” provisio n, 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.” C ourt s may impose the maximum prison term only if one or more aggravat ors 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) . C ourts are prohibited from imposing a greater

than

- presumptive sentence based solely on “ catch -all” aggravators, but

once one of the enumerated aggravators have been properly identified
, cour t s are then free to use the “ catch

- all ” pr o vision “to impose a sentence up to the statutory maximum .” State v. B onfiglio , 231 Ariz. 371, 373 , ¶ ¶ 9-10 (2013).

¶10 Applying th os e principles here
, the maximum sentence in the 2019 case was justified because the superior court properly found one enumerated aggravat or: Campos ’s felony conviction (the 2017 case) within ten years of his ne w offense

. See A.R.S. § 13

- 701(D)(11). H aving found an enumerated aggravator , t he court thus permissibl y considered additional

“ catch

- all ” aggravators in imposing his sentence s. T o the extent Campos asks us to reweigh th ose aggravat ors and mitigat ors , we will not do so

. State v. Harvey , 193 Ariz. 472, 477, ¶ 24 (App. 1998).STATE v. CAMPOS Decision of the Court

5 ¶11 Turning to the 2017 case, however, the superior court did not find any enumerated aggravator and was th erefore prohibited from increasing Campos ’s sentence beyond the presumptive ter m. Because the court impermissibly relied solely on “catch

- all” factors to sentence Campos
to the aggravated term , he is entitl ed to relief under Rule 33.1( c) ; consequently, the court abused its discretion in dismissing th at 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 judg e relies on inappropriate factors

. . . the case must be remanded for resentencing.” ).

B. Campos’s Additional Sentencing Claims

¶12 Campos’s re maining challenges to his sentences lack merit

. First, despite hi s contrary assertion, courts may consider as aggravat ors 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, 19 6 (App. 1981) ( holding dismiss al of a prior conviction allegation in a plea agreement did not preclude the sentencing judge from considering that conviction as an aggravat or ); 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 sentenc e- 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 Eq ually unavailing are Campos’s argument s that the superior
court improperly considered felony convictions that were more than ten years old and impermissibly relied on “ catch

- all ” aggravat ors 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 prohibi ts 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 -70 1(F) (“If the trier of fact finds at least one aggravating circumstance, the trial court may fin d by aSTATE v. CAMPOS Decision of the Court

6 preponderance of the evidence additional aggravating circumstances. ”)

. Furthe r, courts do not err by sua sponte finding aggravat ors 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 s uperior court erred in considering the c hallenged aggravators

.
II. Lack of Subject M atter Jurisdiction

¶14 T he 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. 3 55, 357, ¶ 6 ( App. 1998 ) (citation and quotation marks omitted). T he Ar izona Constitution confers “original jurisdiction” to the superior court to adjudicate felony offenses

. Ariz. Const. art. 6
, § 14(4) ; see S tate 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 initiat ing a prosecution against Campos for fe lony 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 mis characterizes his claim as one relating
t o subject matter juri s diction under Rule 33.1(b). His claim instea d constitutes a constitutional challenge to § 13 -3725, which he waived by pleading guilty, along with all other constitutional challenges to the resulting conviction

. S ee S tate v. Leyva , 241 Ariz. 521, 527, ¶ 1 8 (App. 201 7) ( 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 S tate v. Stefanovich , 232 Ariz. 154, 158 , ¶ 16 ( App. 2013 ) ( holding appellant waiv ed 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

7 III. IAC Claim

¶16 Campos next a rgue s 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 sentence s, 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 .” Stat e v. Boldrey , 176 Ariz. 378, 380 (App. 1993)

. A claim has t he 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

. S ee , e.g., State v. Goswick
, 142 Ariz. 582, 585 (1984) ( explaining a verments in the petitioner’s “self

- serving affidavit” did not alone provide a “ sufficient factual basis ” to support his IAC claim); see also S tate 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

. S ee 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. Sprei tz , 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) (r ev iewing court will not consider even meritorious issues that were not first presented to the superior court)

.STATE v. CAMPOS Decision of the Court

8 20 (App. 1993) ( finding the petitioner’s own affidavit was insufficient to overcome inferenc e of waiver).

¶18 Here, Campos has not carried his burden of demonstrat ing the superior court abused its discretion in concluding the record did not sufficiently support hi s allegations to require an evidentiary hearing

. As the court explained in its dismissal order, t he 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 content s,” 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, voluntar ily, 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 a nd the plea agreement in the new case.” Nevertheless, when Campos later gave his allocution , he made no inquir y into , much less protest, the court’s consider ation of his criminal history. And after the court explicit ly f ound

— without objection

— that his prior felony convictions and probationer status constituted aggravators , he s ought no clarification regarding the propriety of the court’s reliance on those fact s.
¶19 A bsent some showing in the record to support Campos’s

a verments in his affidavit
, his IAC claim do es not have the required appearance of validit y

. S ee S uarez , 23 Ariz. App. at 46 ; Boldrey , 176 Ariz. at 380; se e 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. ”). T he superior court t h erefore reasonably reject ed his claim that due to ineffective assistance, he lacked the information necessary to make a knowing and intelligent decision to plead guilty. S ee S tate v. Borbon , 146 Ariz. 392, 399

- 400 (1985) ( explaining c ourt s need not conduct an evidentiary hearing based on mere generalizations and unsubstantiated IAC claims ). B ecause Campos has fail ed to overcome the strong presumption that trial counsel rendered effective assistance
, Kolmann , 239 Ariz. at 160, ¶ 10, h is IAC claim does not warrant relief

.STATE v. CAMPOS Decision of the Court

9 IV. Anders Claim

¶20 Finally, we reject Campos’ s c ontention that the superior court violated Anders , given that d e fendant s are not e n titled to Anders

- type review s in Arizona PCR proceeding s. 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 re view , and grant partial relief by
vacat ing Campos’s sentence in the 2017 case and remand ing th at case to the superior court for resentencing in accordance with this decision. We otherwise deny relief.