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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE NICHOLAS L.

No. 1 CA-JV 15-0088

Appeal from the Superior Court in Mohave County

Nos. 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

Counsel 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

disposition agreements; second, 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 agreement, 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 In 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 restitution hours for three months.

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

and Nicholas was detained.

1 Nicholas entered into another disposition 

agreement, 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 agreement stated that Nicholas 

would be screened for Juvenile Intensive Probation Supervision (“JIPS”). 

He was reinstated to standard probation. 

¶5 In early March 2014, a petition was filed alleging additional 

probation violations. Nicholas waived the right to a status hearing and 

 

1 Beginning in approximately September 2013, Nicholas became the subject 

of two juvenile delinquency proceedings. The juvenile court treated both 

of Nicholas’ cases as if they were consolidated, although our record does 

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

8-202(C). In this appeal, the two cases are also treated 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 Mohave County Drug Court Program.

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

Nicholas entered into another disposition agreement, admitting violations 

of probation. The violations included an assault offense, 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 hearing, Nicholas was again reinstated on 

standard probation for one year.

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

filed. On December 16, 2014, Nicholas entered into another disposition 

agreement, admitting violations of probation, and the juvenile court set a 

disposition hearing for February 2015. Prior to the scheduled disposition 

hearing, a Petition to Revoke Probation was filed alleging additional 

probation violations. At the adjudicatory hearing on January 27, 2015, the 

juvenile court found that the parties had reached a disposition agreement, 

which was signed by Nicholas on January 26, 2015. The juvenile court 

directed the submission of a Disposition Report. The Disposition Report, 

dated February 24, 2015, reported that Nicholas scored a twenty with a fiftyfive percent chance of recidivism, which is considered a high risk on the 

Arizona Youth Assessment System. After consideration of Nicholas’ 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 everything they could give 

you.

¶8 Accordingly, the juvenile court committed Nicholas to the 

ADJC until his eighteenth birthday. Nicholas timely appeals. We have 

jurisdiction in accordance with Arizona Revised Statutes (“A.R.S.”) section

8-235(A) and Arizona Rule of Procedure for the Juvenile Court 103.
IN RE NICHOLAS L.

Decision of the Court

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ANALYSIS

I. Alleged Ineffective Assistance of Counsel

¶9 Nicholas contends that he was denied effective assistance of 

counsel. While claims of ineffective assistance 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 proceeding under the Rules of Procedure for Juvenile Court. We 

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, however, 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 To 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 been 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 ineffective 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. State 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 with his attorney 

regarding the Disposition Agreement 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 agreement, 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 agreement and advised Nicholas of the possible 

consequences resulting from entering into the disposition agreement. The 
IN RE NICHOLAS L.

Decision of the Court

5

court then asked Nicholas whether he admitted the allegations contained 

in the petition. Nicholas answered in the affirmative. We therefore find 

this argument unpersuasive.

¶12 Nicholas next argues that he received ineffective assistance of 

counsel the day before the January 27, 2015 adjudicatory hearing when he

signed the disposition agreement 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 support his 

allegations. The disposition agreement 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 agreement, and whether he agreed to give up his rights and 

enter into the disposition agreement. 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 commitment 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 Pursuant to a mandate by the legislature, the 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 constrain 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 

alternatives 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.

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¶15 Here, the juvenile court considered Nicholas’ criminal history 

as well 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 In 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 For these reasons, the juvenile court’s adjudication and 

disposition are affirmed.