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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JEREMY ALAN OFFUTT, Petitioner.

No. 1 CA-CR 18-0691 PRPC

Petition for Review from the Superior Court in Yavapai County

No. P1300CR201600095

The Honorable Tina R. Ainley, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Yavapai County Attorney’s Office, Prescott

By Joshua I. Fisher

Counsel for Respondent

Jeremy Alan Offutt, Kingman

Petitioner

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.

FILED 3-26-2019
STATE v. OFFUTT

Decision of the Court

2

C R U Z, Judge:

¶1 Jeremy Alan Offutt petitions this court for review from the 

dismissal of his petition for post-conviction relief of-right (“PCR”) filed 

pursuant to Arizona Rule of Criminal Procedure (“Rule”) 32.1. We have 

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

and deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 In 2016, Offutt pled guilty to four counts of attempted 

molestation of a child, each a class 3 felony and dangerous crime against 

children subject to enhancement under Arizona Revised Statutes (“A.R.S.”)

section 13-705 (Supp. 2018). In addition, Offutt agreed to a term of 

imprisonment for count 1 and thereafter lifetime probation for counts 2-4.

¶3 Consistent with the plea agreement, the superior court 

sentenced Offutt to a presumptive term of ten years’ imprisonment as to

count 1, followed by lifetime probation as to counts 2-4. Offutt then timely 

petitioned for post-conviction relief. Appointed counsel notified the court 

that he found no colorable claims for relief, and Offutt filed a pro per PCR 

arguing that: (1) the State unlawfully held him without bond before trial;

(2) the statute proscribing molestation of a child, A.R.S. § 13-1410 (2010), is 

unconstitutional because it unlawfully places the burden of proof on the 

defendant to prove a lack of sexual intent; (3) he never waived his right to 

have a jury determine any sentence enhancement; (4) the State failed to 

provide adequate notice of the charges against him; (5) the age of a victim, 

alone, fails to provide a sufficient factual basis to enhance a sentence 

pursuant to the dangerous crimes against children sentencing scheme;

(6) the superior court failed to adequately inform him that the plea 

agreement provided for an enhanced sentence; (7) the dangerous crimes 

against children sentencing scheme is unconstitutional “because it violates 

a defendant’s right to a jury trial”; (8) the punishment set forth in the statute 

proscribing molestation of a child is unconstitutionally vague; (9) the 

superior court erred by failing to sentence him, a first-time offender, 

pursuant to A.R.S. section 13-702 (2010); and (10) trial counsel was 

ineffective by: (a) failing to request a bond hearing; (b) encouraging Offutt 

to accept the plea offer; and (c) failing to object when the superior court 

imposed an enhanced sentence.

¶4 The superior court summarily dismissed the PCR, and this 

petition for review followed. Absent an abuse of discretion or error of law, 

this court will not disturb a superior court’s ruling on a petition for 
STATE v. OFFUTT

Decision of the Court

3

post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). The 

petitioner bears the burden to show the superior court abused its discretion. 

See State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011).

DISCUSSION

¶5 On review, Offutt contends that: (1) the superior court erred 

by failing to conduct fundamental error review of the PCR; (2) the State 

failed to provide adequate notice that he was charged with offenses 

designated as dangerous crimes against children and subject to 

enhancement; and (3) the age of a victim, alone, fails to provide a sufficient 

factual basis to enhance a sentence pursuant to the dangerous crimes 

against children sentencing scheme. In addition, he asserts that trial 

counsel was ineffective by: (1) failing to request a bond hearing;

(2) encouraging him to accept the plea offer; and (3) failing to object to the 

sentence, notwithstanding the absence of a sufficient factual basis.

¶6 As a preliminary matter, Offutt has abandoned all PCR claims 

not reasserted in his petition for review, and we therefore do not address 

them. See State v. Rodriguez, 227 Ariz. 58, 61 n.4, ¶ 12 (App. 2010) (declining 

to address arguments not raised in petition for review). Therefore, he has 

waived his claims of ineffective assistance of counsel predicated on 

counsel’s: (1) failure to request a bond hearing; and (2) encouragement to 

accept the plea offer.1

 

1 To the extent Offutt argues that his right to challenge trial counsel’s 

failure to seek a bond hearing survives his guilty plea, we note that none of 

the cases he relies on support that proposition. See Mitchell v. United States, 

526 U.S. 314, 322-25 (1999) (holding a defendant’s guilty plea and 

statements at plea colloquy did not function as a waiver of her right to 

remain silent at sentencing); Menna v. New York, 423 U.S. 61, 62-63 (1975)

(holding a guilty plea does not preclude a defendant from raising a double 

jeopardy claim on review); Blackledge v. Perry, 417 U.S. 21, 30-31 (1974)

(holding a guilty plea does not preclude a petitioner from raising a 

prosecutorial vindictiveness claim in a federal habeas corpus proceeding); 

Stewart v. Smith, 202 Ariz. 446, 450, ¶ 12 (2002) (holding a petitioner may 

raise an ineffective assistance of counsel claim for the first time in a 

successive petition for post-conviction relief if the nature of the right 

allegedly affected by counsel’s ineffective performance “is of sufficient 

constitutional magnitude to require personal waiver by the defendant and 

there has been no personal waiver”).
STATE v. OFFUTT

Decision of the Court

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¶7 By entering a guilty plea, Offutt waived “all nonjurisdictional defects and defenses, including claims of ineffective 

assistance of counsel, except those that relate to the validity of [his] plea.” 

State v. Leyva, 241 Ariz. 521, 527, ¶ 18 (App. 2017) (citation and internal 

quotation omitted). To state a colorable claim of ineffective assistance of 

counsel, a defendant must show that counsel’s performance fell below 

objectively reasonable standards and that the deficient performance 

prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687-88 

(1984); State v. Nash, 143 Ariz. 392, 397-98 (1985). To demonstrate prejudice, 

a defendant must show that there is a “reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have 

been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id. If a 

defendant fails to make a sufficient showing on either prong of the 

Strickland test, the court need not determine whether the defendant satisfied 

the other prong. State v. Salazar, 146 Ariz. 540, 541 (1985).

¶8 Offutt does not allege that he lacked the mental capacity to 

knowingly, intelligently, and voluntarily enter the plea. The change of plea 

hearing transcript reflects Offutt “displayed normal communication skills 

and thought processes” and demonstrated “an understanding of his rights 

and the consequences of his waiver.” State v. Brewer, 170 Ariz. 486, 496 

(1992). Equally important, Offutt has not contested his mental fitness or 

otherwise argued that his decision to plead guilty was involuntary or 

coerced. Therefore, Offutt has failed to establish a colorable claim for relief 

with respect to his capacity to enter the plea agreement.

¶9 Turning to the remaining issues, Offutt first contends the 

superior court erred by summarily dismissing his PCR without conducting 

fundamental error review akin to the process required for direct appeals 

under Anders v. California, 386 U.S. 738 (1967). As recently held by this 

court, however, the current Rule 32 procedure does not require the superior 

court to conduct such a review. State v. Chavez, 243 Ariz. 313, 

318-19, ¶ 17 (App. 2017).

¶10 Second, Offutt seemingly challenges the validity of his plea 

by arguing the State failed to provide him with adequate notice that he was 

charged with offenses designated as dangerous crimes against children and 

subject to sentencing enhancement. To provide sufficient notice, an 

indictment must: (1) contain the elements of the offense charged; (2) set 

forth “a plain, concise statement of the facts” that form the basis of the 

charged offense; and (3) cite “the statute, rule, regulation or other provision 
STATE v. OFFUTT

Decision of the Court

5

of law the defendant allegedly violated.” Ariz. R. Crim. P. 13.1(a), (d); see 

also Hamling v. United States, 418 U.S. 87, 117 (1974).

¶11 Here, the State charged Offutt by indictment with one count 

of sexual conduct with a minor (alleging he knowingly engaged in sexual 

intercourse or oral sexual contact with a minor under fifteen years old) and 

one count of continuous sexual abuse of a child (alleging he engaged in 

sexual conduct with a minor under fourteen years old over a four-month 

period). For each count, the State alleged that Offutt violated A.R.S. 

§ 13-705, the dangerous crimes against children sentencing statute. In 

addition, the plea agreement expressly identified each count as a dangerous 

crime against children in the third degree and stated that each offense was 

committed in violation of A.R.S. section 13-705. Therefore, contrary to 

Offutt’s contention, the State provided constitutionally-adequate notice 

that he was charged with offenses designated as dangerous crimes against 

children and subject to sentencing enhancement.

¶12 Third, citing State v. Williams, 175 Ariz. 98 (1993), Offutt 

argues that the age of a minor victim, alone, fails to provide a sufficient 

factual basis for sentencing enhancement pursuant to A.R.S. section 13-705. 

In Williams, the defendant, “while drunk, rammed his pickup truck into the 

back of a station wagon,” injuring a fourteen-year-old boy. 175 Ariz. at 99. 

Vacating the enhanced sentence imposed by the superior court, Arizona

Supreme Court held that the dangerous crimes against children sentencing 

enhancement applies only to defendants who “prey upon helpless 

children,” not those “who fortuitously injure children by their unfocused 

conduct.” Id. at 103.

¶13 “A factual basis can be established by ‘strong evidence’ of 

guilt and does not require a finding of guilt beyond a reasonable doubt.” 

State v. Salinas, 181 Ariz. 104, 106 (1994) (citation omitted). “[E]vidence of 

guilt may be derived from any part of the record including presentence 

reports, preliminary hearing transcripts, or admissions of the defendant.” 

Id. (citation omitted).

¶14 In this case, Offutt pled guilty to repeatedly attempting to 

molest a child, age thirteen during the relevant period, and specifically 

acknowledged at the plea hearing that he knew the victim’s age when he 

committed the offenses. Thus, unlike the defendant in Williams, whose 

reckless driving presented a danger to everyone in his vicinity regardless 

of age, here, Offutt specifically targeted a child for the purpose of sexual 

activity. Therefore, the underlying offenses clearly fall within the conduct 

subject to enhanced punishment by the dangerous crimes against children 
STATE v. OFFUTT

Decision of the Court

6

sentencing scheme, the sentence is supported by a sufficient factual basis, 

and trial counsel was not deficient by failing to object to the enhanced 

sentence imposed.

CONCLUSION

¶15 For these reasons, we grant review and deny relief.