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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MATTHEW MORENO, Petitioner.

No. 1 CA-CR 15-0289 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2010-123998-001

The Honorable Janet E. Barton, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By E. Catherine Leisch

Counsel for Respondent

Matthew Moreno, Buckeye

Petitioner
STATE v. MORENO

Decision of the Court

2

MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which 

Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.

N O R R I S, Judge:

¶1 Petitioner Matthew Moreno petitions this court for review 

from the summary dismissal of his petition for post-conviction relief

of-right. We grant review, but deny relief.

¶2 Moreno pled guilty to second degree murder and arson of an 

occupied structure. The superior court sentenced Moreno to an aggravated 

term of 22 years’ “flat time” for second degree murder and a consecutive, 

aggravated term of 12.5 years’ for arson, as stipulated in the plea agreement.

¶3 In his petition for review, Moreno first argues the superior 

court should have given him a “mitigation/aggravation hearing.”

Although a defendant has a right to a pre-sentence hearing if he or she

requests one, Ariz. R. Crim. P. 26.7(a), the record does not reflect Moreno, 

who was represented by counsel throughout the proceedings, requested a 

pre-sentence hearing. Therefore, he was not entitled to a pre-sentence 

hearing. Further, the sentencing transcript shows the superior court took

Moreno’s age and his lack of criminal history into account when sentencing 

him. The superior court stated, “[W]hile there is clearly mitigation in this 

case, which would be the defendant’s age and his lack of a criminal history, 

I simply could not find that the mitigation in this case outweighed the 

aggravation in light of the brutality and violence that was involved in this 

event.” 

¶4 Additionally, before the superior court accepted Moreno’s 

guilty plea, it advised him that if he pled guilty the court, and not a jury, 

would determine any aggravating factors. Specifically, at the change-ofplea hearing the superior court informed Moreno, “You are giving up your 

right to a jury trial and the right to have a jury determine . . . any factors 

that could aggravate your sentence. The Court will now determine 

aggravating factors, if any.” Moreno then confirmed he understood that by 

pleading guilty he was giving up his right to have a jury determine any 

aggravating factors. Thus, Moreno waived his right to a hearing on any 

aggravating factors. Cf. State v. Brown, 212 Ariz. 225, 229, ¶¶ 16-18, 129 P.3d 
STATE v. MORENO

Decision of the Court

3

947, 951 (2006) (defendant entitled to jury trial on aggravating factors 

because he expressly reserved right to challenge aggravating factors in plea 

agreement).

¶5 Moreno next argues his aggravated, consecutive sentences are 

too harsh because of his minimal participation in the crime. Moreno 

stipulated to the aggravated, consecutive sentences, his sentences are 

within the available range of punishment, and at the change-of-plea hearing

he admitted he helped beat the victim and set the victim’s house on fire. See

Ariz. Rev. Stat. (“A.R.S.”) § 13-710(A) (Supp. 2016) (sentences for second 

degree murder); A.R.S. § 13-702(D) (2010) (sentences for class 2 felony for 

first time offender); A.R.S. § 13-1704(B) (2010) (arson of an occupied 

structure is a class 2 felony); A.R.S. § 13-711(A) (2010) (imposition of 

consecutive sentences).

1 Therefore, we reject this argument.

¶6 Moreno also argues his post-conviction relief counsel was 

ineffective when he failed to raise these issues and instead filed a notice that 

he had been unable to find any colorable claims for post-conviction relief.

Because these claims are not colorable, however, post-conviction counsel 

was not ineffective in not raising them.

¶7 Finally, while Moreno’s petition for review briefly mentions

additional claims of ineffective assistance of counsel, he provides no 

substantive argument, no citation to or application of legal authority and 

no citation to the record to support those claims. “Merely mentioning an 

argument is not enough . . . .” State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 

94 P.3d 1119, 1147 n.9 (2004) (citation omitted). If Moreno meant to 

incorporate by reference the issues and arguments he made in the superior 

court, he may not do so. A petition for review may not present issues 

through mere incorporation by reference. Ariz. R. Crim. P. 32.9(c)(1)(iv)

(petition must contain “[t]he reasons why the petition should be granted” 

and either an appendix or “specific references to the record,” but “shall not 

incorporate any document by reference, except the appendices”); Ariz. R. 

Crim. P. 32.9(c)(1)(ii) (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”); State v. Rodriguez, 227 Ariz. 58, 61 n.4, ¶ 12, 251 P.3d 1045, 

 

1With one exception we have cited to the statutes in effect as 

of the date of Moreno’s offense. The Legislature amended A.R.S. § 13-710, 

in 2012, but the amendment is immaterial to this decision. 
STATE v. MORENO

Decision of the Court

4

1048 n.4 (App. 2010) (declining to address argument not presented in 

petition).2

¶8 Thus, for the foregoing reasons, although we grant review, we 

deny relief.

 

2The superior court addressed but rejected the additional 

arguments Moreno failed to properly present to this court.