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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

IVAN ALVARADO, Appellant/Petitioner.

No. 1 CA-CR 16-0415

 1 CA-CR 16-0384 PRPC

 (Consolidated)

Appeal/Petition for Review from the Superior Court in Yavapai County

No. V1300CR820060768

The Honorable Michael R. Bluff, Judge

SENTENCE AFFIRMED; REVIEW GRANTED, RELIEF DENIED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Elizabeth B.N. Garcia

Counsel for Appellee

Yavapai County Attorney’s Office, Prescott

By Dana E. Owens

Counsel for Respondent

David Goldberg Attorney at Law, Fort Collins, CO

By David Goldberg

Counsel for Appellant/Petitioner
STATE v. ALVARADO

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Kent E. Cattani and Chief Judge Michael J. Brown joined.

W I N T H R O P, Judge:

¶1 Ivan Alvarado appeals his sentence for promoting prison 

contraband. He also petitions for review of the denial of his claim of 

ineffective assistance of counsel with respect to plea negotiations. For the 

reasons that follow, we affirm his sentence and grant review of his petition 

for review, but deny relief.

BACKGROUND

¶2 Alvarado was charged with promoting prison contraband, a 

class 2 felony; possession of marijuana, a class 6 felony; possession of drug 

paraphernalia, a class 6 felony; and criminal impersonation, a class 6 felony. 

A jury acquitted Alvarado of criminal impersonation, but found him guilty 

as charged on the other three counts. Before sentencing, however, the trial

court granted Alvarado’s renewed motion for judgment of acquittal on the 

charge of promoting prison contraband.

1

¶3 The State appealed the order granting the motion for acquittal 

and succeeded in having the conviction reinstated. See State v. Alvarado, 219 

Ariz. 540, 546, ¶ 19, 200 P.3d 1037, 1043 (App. 2008). On remand, the trial

court sentenced Alvarado to a presumptive 11.25-year prison term on the 

conviction for promoting prison contraband, which included a two-year

sentence enhancement for committing the offense while on pretrial felony 

release. The sentence was affirmed on appeal, as modified to reflect credit 

for one additional day of presentence incarceration. See State v. Alvarado, 1 

CA-CR 14-0801, 2015 WL 3869742 (Ariz. App. June 23, 2015).

¶4 Alvarado thereafter filed a petition for post-conviction relief,

raising a claim of ineffective assistance of counsel with regard to both 

sentencing and plea negotiations. Following an evidentiary hearing, the 

parties agreed Alvarado was entitled to be resentenced without the two-

 

1 Alvarado was placed on probation on the other two convictions, and 

those convictions and disposition are not at issue in this appeal.
STATE v. ALVARADO

Decision of the Court

3

year sentencing enhancement, and the trial court granted relief on that 

claim, but denied relief on Alvarado’s claim that he was deprived of a 

favorable plea offer due to ineffective assistance of counsel.

¶5 At resentencing, the trial court imposed a mitigated sevenyear prison term. Alvarado filed a timely notice of appeal from his

resentencing and also petitioned for review of the denial of his claim of 

ineffective assistance of counsel with respect to plea negotiations. This 

court granted Alvarado’s motion to consolidate the petition for review with 

his appeal. We have jurisdiction over Alvarado’s appeal pursuant to Article 

6, Section 9, of the Arizona Constitution and Arizona Revised Statutes 

(“A.R.S.”) sections 13-4031 (2010)2 and 13-4033 (2010), and jurisdiction over 

Alvarado’s petition for review pursuant to A.R.S. § 13-4239(C) (2010) and

Arizona Rule of Criminal Procedure 32.9(c).

ANALYSIS

I. Sentencing

A. Right to Equal Protection

¶6 The charge of promoting prison contraband resulted from a 

small container that held 790 milligrams of marijuana being discovered in 

one of Alvarado’s pockets while he was being booked into jail on the other 

offenses. As charged in this case, a person commits promoting prison 

contraband by “knowingly taking contraband into a correctional facility or 

the grounds of such facility.” A.R.S. § 13-2505(A)(1) (2001).

3 The offense is 

a class 2 felony if the contraband involved is a deadly weapon, dangerous 

instrument, explosive, dangerous drug, narcotic drug, or marijuana. A.R.S. 

§ 13-2505(C). In all other cases, the offense is a class 5 felony. Id.

¶7 Alvarado argues that punishing him for promoting prison 

contraband as a class 2 felony offense violates his right to equal protection 

 

2 We cite the current version of the applicable statutes unless changes 

material to our decision have occurred since the relevant date.

3 With respect to A.R.S. § 13-2505, we cite and quote the version of the 

statute in effect at the time the crime occurred. The statute has twice been 

amended since Alvarado’s crime, and although the changes are not material 

to our analysis, they have resulted in relettering of the statute. For example, 

former subsection (C), to which we refer in our decision, may currently be 

found in subsection (G) of the statute.
STATE v. ALVARADO

Decision of the Court

4

under the Fourteenth Amendment to the United States Constitution. 

Specifically, he argues that, given the nature of his conduct and the small 

amount of marijuana involved, it makes no sense for him to be punished 

more severely than a person who commits the same offense with non-class 

2 felony contraband that presents a greater danger to the safety, security, or 

preservation of order in the correctional facility.

¶8 Although he did not raise this argument below, Alvarado 

asserts the argument is not waived because imposition of an illegal sentence 

constitutes fundamental error. See generally State v. Henderson, 210 Ariz. 561,

567, ¶ 19, 115 P.3d 601, 607 (2005) (holding that an issue not raised below is 

reviewed for fundamental error). We agree. See State v. Alvarez, 205 Ariz. 

110, 116, ¶ 18, 67 P.3d 706, 712 (App. 2003) (recognizing that an illegal 

sentence is fundamental error, which is not waived by the failure to raise it 

below (citation omitted)).

¶9 The “specification of punishment for crime is peculiarly a 

question of legislative policy.” State v. Arnett, 119 Ariz. 38, 47, 579 P.2d 542, 

551 (1978) (citations omitted). We review de novo the constitutionality of a 

sentencing statute. State v. Davolt, 207 Ariz. 191, 214, ¶ 99, 84 P.3d 456, 479 

(2004). We presume a statute to be constitutional, and the party challenging

a statute’s constitutionality has the burden to prove it is unconstitutional. 

State v. Tocco, 156 Ariz. 116, 119, 750 P.2d 874, 877 (1988).

¶10 The equal protection clause of the Fourteenth Amendment 

generally requires that the law treat all similarly situated persons alike. See 

Crerand v. State, 176 Ariz. 149, 151, 859 P.2d 772, 774 (App. 1993); see also 

Aegis of Ariz., L.L.C. v. Town of Marana, 206 Ariz. 557, 570, ¶ 54, 81 P.3d 1016, 

1029 (App. 2003) (“To establish an equal protection violation, a party must 

. . . show that it was treated differently than other people in the same 

‘similarly situated’ class.” (citation omitted)). The right to equal protection, 

however, does not prohibit all classification of persons; only classification 

that is “unreasonable.” State v. Lowery, 230 Ariz. 536, 541, ¶ 13, 287 P.3d 

830, 835 (App. 2012). Where, as in this case, the classification in question 

does not implicate a suspect class or a fundamental right, a denial of equal 

protection will be found only if there is no rational basis for the 

classification. See Kahn v. Thompson, 185 Ariz. 408, 413, 916 P.2d 1124, 1129

(App. 1995).

¶11 The rational basis test does not require the legislature to 

choose the least intrusive, or the most effective, means of achieving its 

goals. State v. Hammonds, 192 Ariz. 528, 532, ¶ 15, 968 P.2d 601, 605 (App. 

1998). A challenger of a statute’s constitutionality may overcome the
STATE v. ALVARADO

Decision of the Court

5

presumption that the statute is rational “only by a clear showing of 

arbitrariness or irrationality.” Id. at 531, ¶ 9, 968 P.2d at 604 (citation 

omitted). Only if a statute “is ‘wholly irrelevant’ to the achievement of a 

legitimate governmental objective” will it violate equal protection. Id. at 

532, ¶ 15, 968 P.2d at 605 (quoting McGowan v. Maryland, 366 U.S. 420, 425

(1961)); see also Ariz. Downs v. Ariz. Horsemen’s Found., 130 Ariz. 550, 555, 

637 P.2d 1053, 1058 (1981) (holding that a statute that does not impact upon 

a fundamental right or suspect class “will be upheld if it has any 

conceivable rational basis to further a legitimate governmental interest” 

(citations omitted)).

¶12 The offense of promoting prison contraband is directed at 

individuals who are incarcerated or in control of a correctional facility, and 

the penalties seek to promote safety, security, and the preservation of order 

in a correctional facility. State v. Roman, 200 Ariz. 594, 596, ¶ 9, 30 P.3d 661, 

663 (App. 2001). In enacting A.R.S. § 13-2505(C), the legislature divided the 

offense for punishment purposes into two classes: those involving a deadly 

weapon, dangerous instrument, explosive, dangerous drug, narcotic drug, 

or marijuana, and those involving all other contraband. The legislature 

could reasonably conclude that items like deadly weapons and illegal 

drugs, including marijuana, present a greater threat to the security and 

order of correctional facilities than other types of contraband, and that 

harsher punishment is appropriate for offenders who introduce these more 

harmful items or substances into correctional facilities. See Olsen v. DEA, 

878 F.2d 1458, 1462 (D.C. Cir. 1989) (“[E]very federal court that has 

considered the matter, so far as we are aware, has accepted the 

congressional determination that marijuana poses a real threat to 

individual health and social welfare.” (citation omitted)), cited in State v. 

Hardesty, 222 Ariz. 363, 367, ¶ 17, 214 P.3d 1004, 1008 (2009).

¶13 The fact that some class 5 felony contraband might be viewed 

as equally dangerous as, or more dangerous than, marijuana does not make

the classifications in A.R.S. § 13-2505(C) unconstitutional. “[A]bsolute 

equality and complete conformity of legislative classifications are not 

required.” City of Tucson v. Grezaffi, 200 Ariz. 130, 137, ¶ 18, 23 P.3d 675, 682 

(App. 2001) (citation omitted). “Even if the classification results in some 

inequality, it is not unconstitutional if it rests on some reasonable basis.” 

Fisher v. Edgerton, 236 Ariz. 71, 80, ¶ 28, 336 P.3d 167, 176 (App. 2014) 

(citation omitted). There is nothing unreasonable in the legislature 

specifying harsher punishment for promoting prison contraband when the 

offense involves the types of dangerous contraband listed in A.R.S. § 13-

2505(C).
STATE v. ALVARADO

Decision of the Court

6

¶14 The legislature properly exercised its law-making power and 

did not offend constitutional requirements in creating the two classes of 

offense for promoting prison contraband based on the nature of the 

contraband involved. Thus, the classification system established in A.R.S. 

§ 13-2505(C) for the offense of promoting prison contraband does not 

violate the right of equal protection on its face or as applied to Alvarado.

B. Consideration of Mitigation Evidence

¶15 Alvarado also contends the trial court erred in imposing 

sentence by failing to consider evidence of mitigation. According to 

Alvarado, if the superior court had fully considered the evidence of 

mitigation submitted, the court would have found the absolute minimum 

sentence appropriate. Because Alvarado failed to object to his sentence in 

the superior court, our review is limited to fundamental error. See 

Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. “Before we may engage 

in a fundamental error analysis, however, we must first find that the trial 

court committed some error.” State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 

333, 342 (1991) (citation omitted).

¶16 The trial court has broad discretion in imposing sentence. 

State v. Stotts, 144 Ariz. 72, 87, 695 P.2d 1110, 1125 (1985). “[A]n abuse of 

discretion in sentencing will not be found absent a decision characterized 

by arbitrariness, capriciousness, or failure to conduct an adequate 

investigation into the facts relevant to sentencing.” Id. (citation omitted).

¶17 In imposing sentence, the trial court shall consider the various 

mitigating circumstances identified by the defendant. A.R.S. § 13-701(E) 

(Supp. 2015). A sentencing court, however, “is not required to find that 

mitigating circumstances exist merely because mitigating evidence is 

presented; the court is only required to give the evidence due 

consideration,” and the weight to be given any mitigating evidence “rests 

within the trial court’s sound discretion.” State v. Cazares, 205 Ariz. 425, 427, 

¶ 8, 72 P.3d 355, 357 (App. 2003); accord State v. Webb, 164 Ariz. 348, 355, 793 

P.2d 105, 112 (App. 1990) (“The consideration of mitigating circumstances 

is solely within the discretion of the trial court.” (citation omitted)). Further, 

the trial court is not required to make any factual findings as to mitigating 

factors that it does not find or that will not be relied upon in sentencing, 

and we presume the trial court considered any evidence relevant to 

sentencing before it. State v. Cid, 181 Ariz. 496, 501, 892 P.2d 216, 221 (App. 

1995); see also State v. Medrano, 185 Ariz. 192, 196, 914 P.2d 225, 229 (1996)

(“Judges are presumed to know and follow the law and to consider all 

relevant sentencing information before them.” (citations omitted)).
STATE v. ALVARADO

Decision of the Court

7

¶18 Here, the record reflects that in preparation for the 

resentencing, the trial court read the entire file, including both the original 

and new presentence reports, and also reviewed the letters filed on behalf 

of Alvarado and sentencing memoranda submitted by his counsel. In 

addition, the court heard the testimony of witnesses and the arguments of 

counsel offered in support of mitigation at the sentencing hearing. The fact 

the court found only one mitigating factor does not mean it did not consider

the evidence of other mitigating factors presented; rather, the court simply 

did not find the other factors presented to be mitigating under the 

circumstances of Alvarado’s case. Moreover, Alvarado had three felony 

convictions at the time he was tried and sentenced for the offense in this 

case. On this record, there was no abuse of discretion by the trial court in 

imposing sentence.

C. Request for Sentence Reduction

¶19 Finally, Alvarado requests in the alternative that this court 

exercise its authority under A.R.S. § 13-4037(B) (2010) to reduce his 

sentence. The statutory power to reduce a sentence as excessive under § 13-

4037(B) is to be exercised with great caution. State v. La Mountain, 125 Ariz. 

547, 552, 611 P.2d 551, 556 (1980). Sentencing is within the sound discretion 

of the trial court, and a sentence will not be modified or reduced absent a 

clear abuse of discretion. State v. Patton, 120 Ariz. 386, 388, 586 P.2d 635, 

637 (1978). There being no abuse of discretion in the imposition of 

Alvarado’s sentence, we deny the request.

II. Petition for Review

¶20 Alvarado also argues the trial court erred in denying relief on 

his claim of ineffective assistance of counsel with respect to plea 

negotiations. We review for an abuse of discretion a denial of a petition for 

post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19, 278 P.3d 

1276, 1280 (2012).

¶21 To obtain relief on a 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. See Strickland v. Washington, 466 U.S. 668, 687 (1984). “To 

establish deficient performance during plea negotiations, a petitioner must 

prove that the lawyer either (1) gave erroneous advice or (2) failed to give 

information necessary to allow the petitioner to make an informed decision 

whether to accept the plea.” State v. Donald, 198 Ariz. 406, 413, ¶ 16, 10 P.3d 

1193, 1200 (App. 2000). “To establish prejudice in the rejection of a plea 
STATE v. ALVARADO

Decision of the Court

8

offer, a defendant must show ‘a reasonable probability that, absent his 

attorney’s deficient advice, he would have accepted the plea offer’ and 

declined to go forward to trial.” Id. at 414, ¶ 20, 10 P.3d at 1201 (citations 

omitted).

¶22 When the trial court finds a claim colorable and conducts an 

evidentiary hearing, the defendant has the burden of proving all factual 

allegations by a preponderance of the evidence. Ariz. R. Crim. P. 32.8(c). 

After an evidentiary hearing, our review of the trial court’s factual findings 

“is limited to a determination of whether those findings are clearly 

erroneous.” State v. Sasak, 178 Ariz. 182, 186, 871 P.2d 729, 733 (App. 1993). 

If the court’s ruling is based on substantial evidence, we will affirm. Id.

¶23 In his petition for post-conviction relief, Alvarado alleged his 

trial counsel was ineffective in advising him to reject a favorable plea offer 

because counsel was confident Alvarado would prevail on the charge of 

promoting prison contraband at trial or, if convicted, would be exonerated 

on appeal. The trial court denied relief on this claim based on findings that 

Alvarado failed to prove either deficient performance on the part of his trial 

counsel or that Alvarado would have accepted the plea offer presented.

¶24 On review, Alvarado argues that the trial court abused its 

discretion by not finding his counsel provided ineffective assistance with 

respect to plea negotiations. The court found credible the testimony at the 

evidentiary hearing supporting the findings that counsel provided effective 

assistance with respect to the plea offer and that, in any event, Alvarado 

would not have accepted the offer, and found Alvarado’s testimony to the 

contrary not credible. Credibility determinations in post-conviction relief 

proceedings rest solely with the trial judge, State v. Fritz, 157 Ariz. 139, 141, 

755 P.2d 444, 448 (App. 1988), and it is for the trial court to resolve 

conflicting testimony, State v. Alvarado, 158 Ariz. 89, 92, 761 P.2d 163, 166 

(App. 1988). Because the testimony at the evidentiary hearing provides 

substantial evidence to support the court’s findings, no basis exists for 

disturbing the ruling that Alvarado failed to sustain his burden of proving 

he was entitled to relief on his claim of ineffective assistance of counsel with

respect to plea negotiations.
STATE v. ALVARADO

Decision of the Court

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CONCLUSION

¶25 For the foregoing reasons, we affirm Alvarado’s sentence on 

his conviction for promoting prison contraband, and grant review, but deny 

relief, on his petition for review.