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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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IN THE 

## A RIZONA 

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D IVISION O NE

IN RE NICHOLAS L.

No. 1 CA

- JV 15

- 0088

Appeal from the Superior Court in Mohave County

No s . L8015JV201307076 and L8015JV201207072

The Honorable Richard D. Lambert

, Judge

AFFIRMED

COUNSEL

Law Offices of Heather C. Wellborn, P.C.

, Lake Havasu City By Heather C. Wellborn Counsel for Appellant Nicholas L.

Mohave County Attorney’s Office

, Kingman By Deborah L. Herbert

C ounsel for Appellee

MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.IN RE NICHOLAS L.

Decision of the Court

2 G E M M I L L

, Judge:

¶1 Nicholas L. (“ Nicholas ”) appeals from the juvenile court’s disposition order committing him to the Arizona Department of Juvenile Corrections (“ADJC”). Two issues are presented for review : First, whether

Nicholas received ineffective assistance of counsel regarding certain

di sposition agreements ; s econd, whether the juvenile court abused its discretion when sentencing Nicholas to the ADJC without having explored

less restrictive alternatives . For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In September 2012

, Nicholas first appeared in juvenile court

when he was adjudicated delinquent of possession of marijuana, possession of marijuana in a drug free school zone, and possession of drug paraphernalia, each a class six felony

. At the adjudicatory hearing,

Nicholas entered into a disposition a greement , admitting to possession of drug paraphernalia. As a result, Nicholas was placed on standard probation for a period of one year

, in the custody of his mother.

¶3 I n May 2013, Nicholas was ordered to serve two days in the Mohave County Juvenile Detention Center as an intermediate sanction for violating the terms of his probation. This order came after Nicholas received six days of out

- of

- school suspension and failed to complete any community resti tution hours for three months.

¶4 I n September 2013, a Petition to Revoke Probation was filed

and Nicholas was detained

. 1 Nicholas entered into a nother disposition

a greeme nt, which provided for reinstatement to probation with the length, type, and terms of the probation to be determined by the juvenile court in

its discretion

. Additionally, the disposition a greement stated that Nicholas would be screened for Juvenile Intensive Probation Supervision (“JIPS”).

He was reinstated to standard probation.

¶5 I n early March 2014, a petition was filed alleging additional probation violati ons. Nicholas waived the right to a status hearing and

1 Beginning i n appro xi mately September 2013

, Nicholas became the subject of two juvenile delinquency proceedings. T he juvenile court treated both of Nicholas’ cases as if they were consolidated, al though our record does

not reveal a formal order of consolidation. See Ariz. Rev. Stat. (“A.R.S.”) §

8

- 202 (C)

. In t his appeal, the two cases are also treate d as if consolidated.IN RE NICHOLAS L.

Decision of the Court

3 accepted the intermediate sanction of serving nine days in the Mohave County Juvenile Detention Center. Later that month

, Nicholas was ordered to participate in the Moha ve County Drug Court Program.

¶6 I n April 2014, a Petition to Revoke Probation was filed and

Nicholas entered into a nother disposition a greement, admitting violations of probation. The violations included an assault offe nse, the receipt of one day of in

- school suspension, and the receipt of nine days of out

- of

- school suspension for throwing a rock at another student’s head and causing an injury

. At the disposition h earing, Nicholas was again reinstated on standard probation for one year.

¶7 I n early November 2014, a Petition to Revoke Probation was

filed. On December 16, 2014, Nicholas entered into a nother disposition

a greement, admitting violations of probatio n , and the juvenile court set a

d isposition hearing for February 2015. Prior to the scheduled disposition

h earing, a Petition to Revoke Probation was filed alleging additional probation violations. At the adjudicatory h earing on January 27, 2015, the juvenile court found that the parties had reached a disposition a greement, which was signed by Nicholas on January 26, 2015. The juvenile court directed the submission of a Disposition Report. Th e Disposition Report, dated February 24, 2015, reported that Nicholas scored a twenty with a fifty

five percent chance of recidivism, which is considered a high risk on the Arizona Youth Assessment System

. After consideration of Nichol as’ past record in the juvenile court, his actions in the current matter, the recommendation of his probation officer, and the recommendations of his

counsel , the juvenile court determined that commitment to the ADJC was appropriate , explaining as follows:

Probation is basically telling me it’s not so much that they don’t want to offer JIPS to you, it’s just that they’ve exhausted the resources. They’ve given you e verything they could give

you.

¶8 Accordingly, t he juven ile court committed Nicholas to the ADJC until his eighteenth birthday. Nicholas timely appeal s . We have jurisdiction in accordance with Arizona Revised Statute s (“A.R.S.”) section

8

- 235(A) and Arizona Rule of Procedure f or the Juvenile Court 103

.IN RE NICHOLAS L.

Decision of the Court

4 ANALYSIS

I. Alleged Ineffective Assistance of Counsel

¶9 Nicholas contends that he was denied eff ective assistance of

counsel. While c laims of ineffective assistan ce of counsel in adult criminal cases will not be addressed on direct appeal absent a prior proceeding in

which the claims are pursued under Rule 32 of the Arizona Rules of
Criminal Procedure, see State v. Spreitz , 202 Ariz. 1, 2, ¶ 4 (2002), there is no corollary proce eding under the Rules of Procedure for Juvenile Court . W e will thus address asserted claims of ineffective assistance of counsel in a juvenile delinquency appeal. See Maricopa Cty. Juv. Action No. JV

- 511576

, 186 Ariz. 604, 606

– 07 (App. 1996). If, howe ver, as in this case, an ineffective assistance claim has not been presented to the juvenile court, our review is limited to determining whether there is a colorable claim. If a colorable

claim is asserted , we will remand for fact finding by the juvenile court.

¶10 T o prevail on a claim of ineffective assistance of counsel, an appellant must show (1) deficient representation and (2) that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have be en different. State v. Gerlaugh , 144 Ariz. 449, 455 (1985) ( citing Strickland v. Washington , 466 U.S. 668, 694 (1984))

. Deficient representation is proved “only if, after examining all the circumstances existing at the time of the alleged act of ineffect ive assistance, we conclude that counsel’s actions fell below objective standards of reasonable representation.” Id. The acts or omissions constituting ineffective assistance of counsel must be specified and must amount to

more than mere speculation. St ate v. Rosario , 195 Ariz. 264, 268, 987 P.2d 226, 230 (App. 1999).

¶11 Nicholas first argues that he received ineffective assistance of

counsel when he “did not have an opportunity to confer w ith his attorney regarding the D isposition A greement until approximately five (5) minutes prior to the hearing on December 16, 2014.” Neither Nicholas nor his counsel submitted an affidavit or declaration under oath attesting to these
facts, however, and the record does not support this allegation. The disposition a greement, which was signed by Nicholas on December 16,
2014, explicitly states that he has read the agreement with the assistance of counsel, understands its terms, and agrees to be bound. Further, at the

December 16, 2014 adjudicatory hearing, the juvenile court recited the terms of the disposition a greement and advised Nicholas of the possible

consequences re sulting from entering into the d isposition a greement

. TheIN RE NICHOLAS L.

Decision of the Court

5 court then asked Nicholas whether he a dmitted the allegations contained in the petition. Nicholas answered in the affirmative. We therefore find this argument unpersuasive.

¶12 N icholas next argues that he received ineffective assistance of

counsel the day before the January 27, 2015 adjudicatory hearing when he signed the disposition a greement and spoke with his counsel. As with his prior contention , Nicholas has not presented any sworn testimony supporting the asserted facts and the record does not supp ort his allegations. The d isposition a greement explicitly states that Nicholas read the agreement with the assistance of counsel, understands its terms, and

agrees to be bound by its provisions. During the adjudicatory hearing,

Nicholas was asked whether he had read the disposition agreement, signed the disposition a greement, and whether he agreed to give up his rights and enter into the disposition a greement. Nicholas answered each question in

the affirmative. Accordingly, after review of the record and the circumstances existing at the time of the alleged acts of ineffective assistance
of counsel, we conclude that Nicholas has failed to raise a colorable claim.

II. Less Restrictive Alternatives to Placement in the ADJC

¶13 Nicholas next asserts that the juvenile court abused its

discretion when it committed him to the ADJC. Specifically, Nicholas

argues that the juvenile court failed to explore less restrictive alternatives

to commitmen t because it did not place him on JIPS

. The juvenile court has broad discretion to determine an appropriate disposition for a delinquent juvenile , and we will not alter that disposition absent an abuse of discretion

. In re Niky R. , 203 Ariz. 387, 390, ¶ 10 (App. 2002).

¶14 P ursuant to a mandate by the legislature, t he Arizona Supreme Court developed guidelines in order to assist juvenile courts in determining whether commitment is an appropriate disposition. A.R.S. §

8

- 246(C)

. The guidelines are used “in conjunction with any other factors relevant to the commitment of a juvenile to the care and custody of the ADJC.” Ariz. Code of Judicial Admin. § 6

- 304 (B)(2)

. The commitment guidelines are not mandatory , however, and do not co nstrain the juvenile

court’s broad discretion

. Pinal Cty. Juv. Delinquency Action No. JV

- 9404492

, 186 Ariz. 236, 238 (App. 1996). Further, the juvenile court is not required to

make specific findings or a record showing that it has explored all of the

al ternatives to the ADJC prior to commitment. See Niky R. , 203 Ariz. at 392, ¶ 21. Instead, the statute requires only that the court consider the guidelines. JV

- 9404492, 186 Ariz. at 238.IN RE NICHOLAS L.

Decision of the Court

6 ¶15 H ere, the juvenile court considered Nicholas’ criminal history

as w ell as his actions in the present matter. The court explicitly considered

Nicholas’ counsel’s recommendation for less restrictive alternatives

, including JIPS, and stated that “the Court has taken into consideration the arguments of counsel.” In ordering Nicholas committed to the ADJC,

moreover , the court found that probation had “exhausted the resources”

available to assist him. The court also found that Nicholas had been provided many opportunities in the past to rehabilitate, he had failed to take advantage of those opportunities, and commitment to the ADJC was required to get Nicholas the help that could not be provided by Mohave County.

¶16 I n light of Nicholas’ repeated violations of probation and criminal history

, the juvenile court did not abuse its discretion by committing Nicholas to the ADJC rather than placing him on JIPS

.

CONCLUSION

¶17 F or these reasons, the juvenile court’s adjudication and disposition are affirmed

.