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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

STATE OF ARIZONA , Respondent
,

v.

ANDREI LELE , Petitioner

.
No. 1 CA

- CR 19

- 0039 PRPC FILED 2

- 20

- 2020

Petition for Review from the Superior Court in Maricopa County

No. CR 2013

- 003607

- 001 The Honorable John R. Doody
, Judge Pro Tempore

REVIEW GRANTED; RELIEF GRANTED IN PART AND DENIED IN PART

COUNSEL
Maricopa County Attorney’ s Office , Phoenix By Adena J. Astrowsky Counsel for Respondent

Maricopa County Office of the Legal Advocate
, Phoenix By Colin F. Stearns C ounsel for PetitionerSTATE v. LELE Decision of the Court

2 MEMORANDUM DECISION
Chief Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Paul J. McMurdie and Judge Samuel A. Thumma joined.

S W A N N , Chief Judge :

¶1 In late 2013, Andrei Lele pled guilty to two counts of attempt ed sexual abuse against adult victims

. The plea agreement provided that “ [p] ursuant to A.R.S. § 13

- 3821, imposition of sex offender registration is within the discretion of the Court.” T he superior court imposed a ten

- year probation term without a registration condition.

¶2 In 2016, the s tate filed a petition to revoke Lele’s probation. Lele admitted that he had violat ed a condition of probation . T he superior
court revoked his probation and imposed prison terms. The court also required Lele to register as a sex offender under § 13

- 3821 , which provides :

A. A person who has been convicted of . . . a violation or attempted violation of any of the following offenses . . . within ten days after the conviction . . . , shall register with the sheriff of that county:

. . . 3. Sexual abuse pursuant to § 13

- 1404 if the victim is under eighteen years of age.

...
C. Notwithstanding subsection A of this section, the judge who sentences a defendant for any violation of chapter 14 or 35.1 of this title [ ] or for an offense for which there was a finding of sexual motivation pursuant to § 13

- 118 may require the person who committed the offense to register pursuant to this section.
( E mphas e s added

. )

¶3 Lele pursued post

- conviction relief
, contending that the superior court erred by ordering registration under § 13

- 3821 , and that his appointed lawyer ’s failure to object to the registration order constitutedSTATE v. LELE Decision of the Court

3 ineffective assistance of counsel. The court summarily denied relief
, concluding that Lele’s convictions subjected him to the court’s discretionary authority to order registration under § 13

- 3821(C)

. Lele pet itions this court for review. We grant review
, and we grant relief in part.

¶4 As an initial matter, Lele was not subject to mandatory registration under § 13

- 3821(A) because his victims were adults

. See A.R.S. § 13

- 3821(A)(3). Further, the court lacked di scretion to order registration under § 13

- 3821(C). Section 13

- 3821(C) permits such an order in two circumstances: (1) when the defendant is sentenced for a violation of an offense set forth in chapters 14 or 35.1 of Title 13 of the Arizona Revised Statutes ; or (2) when there was a finding of sexual motivation under § 13

- 118. Here, though Lele initially was charged with sexual abuse, a chapter

14 offense, he ultimately pled guilty to and was sentenced for attempted sexual abuse , a chapter

- 10 offense

. See A.R.S. § 13

- 1001. Section 13

- 3821(C) does not authorize a registration order when the defendant is sentenced for an attempt ed violation of chapter 14. See State v. Peek , 219 Ariz. 182, 184

– 85 , ¶ ¶ 12

– 20 (2008)

. The court therefore lacked discretio n to order registration based on the nature of the offense. Further, the court lacked discretion to order registration based on sexual motivation

. Sexual motivation is not an element of the attempted offense
, State v. Holle , 240 Ariz. 300, 307, ¶ 34 (2016), and the court made no finding of sexual motivation under § 13

- 118. N otwithstanding the language of the plea agreement, t he registration order was contrary to law and void

. See Coy v. Fields , 200 Ariz. 442, 444

– 46
, ¶ ¶ 4

– 14 (App. 200 1). We therefore grant relief in part by vacat ing the registration order.STATE v. LELE Decision of the Court

4 ¶5 Lele has not , however, demonstrated ineffective assistance of counsel. T o state a colorable claim for ineffective assistance of counsel
, a petitioner must show that his or her counsel ’ s performance fell below objectively reasonable standards and that the deficient performance prejudiced him. Strickland v. Washington , 466 U.S. 668, 687

– 88 (1984) ; State v. Nash , 143 Ariz. 392, 397 (1985). “ [T] he [petitioner’s] showing must be that of a provable reality, not mere speculation.” State v. Rosario , 195 Ariz. 264, 268, ¶ 23 (App. 1999). Lele provides nothing , other than the fact of the unlawful registration requirement, to substantiate his assertion of ineffective a ssistance of counsel

. We therefore detect no error in the superior court ’s summary denial of relief on that claim , and we deny relief with respect to that portion of the superior court’s ruling

.