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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BROKALE LYTTE MARQUES, Petitioner.

No. 1 CA-CR 17-0657 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2013-003804-001 DT

The Honorable David O. Cunanan, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Lisa Marie Martin

Counsel for Respondent

Brokale Lytte Marques, Florence

Petitioner

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, 

in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.

FILED 4-26-2018
STATE v. MARQUES

Decision of the Court

2

W I N T H R O P, Presiding Judge:

¶1 Brokale Lytte Marques petitions this court for review of the 

dismissal of his petition for post-conviction relief. We have considered the 

petition for review and, for the reasons stated, grant review but deny relief.

¶2 In 2013, Marques was indicted on alternative counts of first 

degree murder (Count I) and second degree murder (Count II), each a class 

one felony, dangerous crime against children, and domestic violence 

offense. He was also indicted on Count III, child abuse, a class two felony, 

dangerous crime against children, and domestic violence offense.

¶3 After an evidentiary hearing on the voluntariness of his 

incriminating statements—which were deemed admissible—and a 

settlement conference, Marques agreed to plead guilty to amended Count 

I, child abuse, a class two felony and dangerous crime against a child, and 

amended Count III, attempted child abuse, a class three felony and 

dangerous crime against a child. The superior court dismissed Count II.

¶4 Although the presumptive term for Count I was seventeen 

years, the plea provided for a term of twenty-three years’ imprisonment for 

Count I, with a consecutive term of probation for Count III. The court 

sentenced Marques to twenty-three years’ imprisonment and a consecutive 

term of three years’ probation.

¶5 After appointed Rule 32 counsel filed a notice of completion 

of review, Marques filed a timely “of right” pro per petition for postconviction relief (“PCR”), claiming ineffective assistance of counsel, his 

sentence violated the Eighth Amendment and equal protection, the 

sentence was otherwise unlawful based on the factors considered, his plea 

violated double jeopardy, and his plea was not voluntary. The superior 

court summarily denied his petition.

¶6 A plea agreement waives all non-jurisdictional defenses, 

errors, and defects that occur before the plea. See, e.g., State v. Toulouse, 122

Ariz. 275, 277 (1979). After a settlement conference, Marques entered a plea 

and advised the superior court during the plea colloquy that his plea was 

voluntary, and not the result of any force or threats. Generally, statements 

to the court at a change of plea regarding voluntariness are binding on a 

defendant. See State v. Hamilton, 142 Ariz. 91, 93 (1984).

¶7 Additionally, when Marques originally sought to avoid his 

plea agreement just before sentencing via his own pro per request, the 

superior court made a finding on the record, again, that his plea was 
STATE v. MARQUES

Decision of the Court

3

voluntary, and found no “manifest injustice” to permit him to withdraw his 

guilty plea. What is clear from the record is that Marques sought to 

reinstate another plea offer, and nothing supports his claim that the plea 

was not his decision. The superior court did not abuse its discretion in 

finding no “manifest injustice” sufficient to permit withdrawal, or in

denying his PCR seeking to invalidate his plea on voluntariness grounds.

¶8 Marques’ argument that the murder charges constituted 

overcharging of the case, which forced him to plead, is a corollary to his 

claim of an involuntary plea and has no merit. Arizona Rule of Criminal 

Procedure 12.9 exists to challenge any proceedings held before the grand 

jury. Marques did not so challenge the indictment. Once he pled guilty, he 

agreed to modify the indictment to the offenses to which he pled. He also 

agreed to waive or give up any probable cause determinations to which he 

pled. Therefore, he has waived any such challenges.

¶9 Because Marques has pled to and been sentenced for a noncapital offense, we view his case to determine if his sentence is “grossly 

disproportionate” to the crime. State v. Berger, 212 Ariz. 473, 475-76, ¶¶ 10-

11 (2006). Pursuant to Berger, we first find the sentencing structure that led 

to Marques’ sentence is an appropriate response to the crime of child abuse. 

See generally id. at 477, ¶ 17. This advances the goal of preventing and 

deterring individuals from causing death or serious injury to children. See

State v. Poehnelt, 150 Ariz. 136, 143 (App. 1985) (“The special interest in 

protecting children is another factor affording broader leeway to legislation

directed to that end.” (citation omitted)). Additionally, a prison sentence is 

not grossly disproportionate to the crime committed if it arguably furthers 

the State’s penological goals, thus reflecting a rational legislative judgment 

entitled to deference. Berger, 212 Ariz. at 477, ¶ 17 (citation and quotation

marks omitted).

¶10 Marques stipulated to the term of imprisonment he received 

for his plea to class two felony child abuse, in lieu of receiving a possible 

term of thirty-five years to life if convicted at trial for the death of his child. 

The facts do not reflect that his sentence was a violation of the Eighth 

Amendment, “cruel and unusual,” or “grossly disproportionate.”

¶11 The transcripts of his settlement conference and evidentiary 

hearing, the pre-sentence report, and the State’s response to his PCR show 

Marques left his one-year-old child unattended in a running vehicle for 

approximately two hours, took the child to lunch, then again left him in the 

same vehicle for almost three hours—with no air conditioning on a very hot 

day. When Marques realized what had occurred, he lied about what led to 
STATE v. MARQUES

Decision of the Court

4

the child’s injuries to mall security guards who initially contacted him and

the child, and then lied to the doctor and police before changing his story. 

His child’s temperature had reached at least 106 degrees.

¶12 Two days after being placed on life support, the victim was 

“removed from life support and declared deceased as a result of the injuries 

sustained after being left in a hot car for multiple hours.” Given the actions 

of Marques, and the extent of the harm caused by his actions—to which he 

fully admitted—we do not conclude either the sentencing structure or his

sentence is unconstitutional.

¶13 Marques also refers to anecdotal evidence in his PCR and 

petition for review to argue his sentence violates equal protection based on 

dispositions in other cases. Because no inference of gross 

disproportionality exists, however, no intra- or inter-jurisdictional analysis 

is required. See State v. Mott, 187 Ariz. 536, 547 (1997). His claim is without 

merit.

¶14 Marques claims the superior court relied on an improper 

aggravating factor when it referred to “the nature of the offense” in 

reaching the stipulated sentence. He complains as well that the court did 

not appropriately weigh any mitigating factors, other than remorse, in 

reaching a sentence. The weight to be given any mitigating circumstance 

rests within the superior court’s sound discretion. State v. Cazares, 205 Ariz. 

425, 427, ¶ 8 (App. 2003). A court is not required to make its sentencing 

decision based on the mere number of aggravating or mitigating 

circumstances. State v. Marquez, 127 Ariz. 3, 7 (App. 1980). Provided the 

superior court fully considers the factors relevant to imposing sentence, as 

the court did in this case, we will not find an abuse of discretion. See id.

¶15 Before Marques’ stipulated plea, the State alleged the victim

suffered serious physical injury and physical harm. At sentencing, the 

superior court found the aggravated sentence was appropriate based on 

“the nature of the offense, the harm to the victim that outweigh[s] any 

mitigating factors of remorse; [and] therefore[,] that 23-year sentence is 

appropriate.” (Emphasis added.) Therefore, the court enumerated an 

appropriate factor in accordance with Arizona Revised Statutes (“A.R.S.”) 

section 13-701(D)(9).1

 

1 We cite the version of the statutes in effect at the time the crimes 

occurred.
STATE v. MARQUES

Decision of the Court

5

¶16 Additionally, because the victim suffered serious injury, then 

died, substantial evidence in the record supports the harm to the victim as 

including “serious physical injury.” The “nature of the offense” would 

have incorporated the “harm” that occurred, as well as the very young age 

of the child. The superior court enumerated the factor or factors it 

depended on to justify the stipulations in the plea, and this was based on 

evidence in the record. See A.R.S. §§ 13-701(C), -705(D).

¶17 To the extent Marques claims the court could not aggravate 

his sentence with the ultimate harm to his child, or the “nature of the 

offense” (i.e., circumstances surrounding the offense), his claim lacks merit. 

He pled to “intentionally or knowingly” acting “[u]nder circumstances 

likely to produce death or serious physical injury.” A.R.S. § 13-3623(A)(1). 

The actual injuries to his child constituted both serious physical injury and 

suffering that ultimately resulted in death. It is not “double counting,” as 

he claims.

¶18 Marques did not need to intend or know his actions would 

likely produce death or serious physical injury, but must have intentionally 

or knowingly committed the “circumstances” that could have produced the 

result. See State v. Payne, 233 Ariz. 484, 505-06, ¶¶ 68-73 (2013). In the 

instant case, Marques met the requirement of intentionally or knowingly 

placing his child in the position wherein the injuries occurred. The result 

went beyond “likelihood” and became the horrific reality of the death of 

the young child. The use of the harm to the child was appropriate as an 

aggravator. We also note, although not enumerated by the court, the record 

clearly supports the age of the child as an aggravating factor, which would 

encompass the “nature of the offense” cited by the superior court and 

would fall within the statute’s “catchall” provision. See A.R.S. § 13-

701(D)(24).

¶19 Marques claims as a mitigating circumstance—and as a basis 

for ineffective assistance of counsel for failing to investigate and produce 

mitigating circumstances—alleged cognitive injuries as the result of an 

automobile accident years before. The superior court was aware of the 2002 

accident, however, which occurred approximately eleven years before 

Marques’ charges. However, nowhere in the record, including in the thirdparty letters attached to his amended PCR, is there objective third-party 

evidence of cognitive dysfunction, or an inability to conform to the dictates 

of the law, and Marques attaches no expert reports to support his claim. See

Ariz. R. Crim. P. 32.5(d) (eff. Jan. 1, 2018).
STATE v. MARQUES

Decision of the Court

6

¶20 Marques’ claim of double jeopardy is also without support. 

The record reflects he admitted two separate incidents of child abuse. The 

first (represented by Count III) was when he left his child in the car in the 

morning for two hours while he went to work. The second, directly 

resulting in death, was when—after he took the child to lunch, then 

returned—he again left the child alone in the car. The record reflected at 

his change of plea that Marques was aware he was admitting two distinct 

incidents based on his actions.

¶21 A defendant may waive double jeopardy just as he may waive 

other constitutional rights. Dominguez v. Meehan, 140 Ariz. 329, 332 (App. 

1983). “[W]aiver of the prohibition against double jeopardy must be 

express rather than implied.” State v. Millanes, 180 Ariz. 418, 420 (App. 

1994) (citation omitted). A defendant waives double jeopardy by a plea of 

guilty. Dominguez, 140 Ariz. at 332. Based on the evidence of record, during 

the colloquy it was made clear—and Marques agreed—he was pleading to 

separate offenses. Additionally, in his plea agreement, Marques indicated

he waived and gave up “any and all motions, defenses, objections, or 

requests” that he either made or could have raised. Therefore, he waived 

this claim.

¶22 Moreover, it is irrelevant the acts were committed within a 

relatively short time span. See State v. Griffin, 148 Ariz. 82, 86 (1986). Even 

assuming his claim was not waived, the incidents are distinct and separate, 

and appropriately subject him to separate punishments. The record reflects 

he twice left his child unattended in his car on a hot day. There is a clear 

separation of actions that supports two charges and two sentences.

¶23 Because none of his claims has merit, it follows there is no 

evidence of deficient performance of counsel resulting in prejudice. See 

Strickland v. Washington, 466 U.S. 668, 687 (1984), superseded by statute on 

other grounds, Antiterrorism and Effective Death Penalty Act of 1996, Pub. 

L. No. 104-132, 110 Stat. 1214 (1996).

¶24 Accordingly, we grant review but deny relief.