State v. Rojo, 1 CA-CR 15-0761-PRPC

Israel Antonio Rojo was indicted for sale/transportation of methamphetamine (over threshold) and possession of drug paraphernalia; the State alleged multiple sentencing enhancements and aggravating factors.
Rojo pleaded guilty to sale/transportation as a non-dangerous, non-repetitive offense under a plea agreement providing a slightly aggravated "flat time" sentence of 12 years; the court awarded pre-incarceration credit.
Rojo filed a timely Rule 32 post-conviction relief (PCR) petition claiming (1) his sentence was improperly aggravated and (2) trial counsel failed to explain the plea stipulating to a 12-year flat sentence.
The superior court dismissed the PCR petition after identifying and ruling on the raised issues; the court had previously found aggravating circumstances (e.g., Rojo on misdemeanor probation and on release from a concurrent case when offense occurred) and had explained sentencing guidelines at settlement conference.
On petition for review, Rojo raised three issues, including two new arguments not presented below: ineffective assistance for failing to advise of a right to an aggravation/mitigation hearing, and that the trial court erred by not holding such a hearing.
The Court of Appeals granted review but denied relief, concluding Rojo failed to show abuse of discretion, and declined to consider issues not raised in the trial court under Rule 32.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court committed fundamental error by imposing an aggravated sentence without proper findings	Rojo: sentence was improperly aggravated without properly determined aggravating factors	State: court made specific factual findings supporting slight aggravation and followed statutory guidelines	No abuse of discretion; court properly found aggravating circumstances and explained sentencing
Whether counsel was ineffective for failing to explain plea stipulation to 12-year flat sentence (as raised below)	Rojo: counsel failed to explain merits of plea and the stipulated 12-year flat time	State: record shows court explained sentencing and plea at settlement; Rojo failed to prove ineffective assistance	PCR court properly rejected claim; Rojo did not meet burden to show ineffective assistance
Whether counsel was ineffective for failing to advise Rojo of right to aggravation/mitigation hearing (new on review)	Rojo: counsel did not advise him of right to mitigation/aggravation hearing	State: issue was not raised below; Rule 32 bars new issues on review	Not considered—issue is unpreserved and fails Rule 32 compliance
Whether trial court erred by not holding an aggravation/mitigation hearing (new on review)	Rojo: court erred by failing to hold a hearing to determine aggravating/mitigating factors	State: no hearing claim was presented below; sentencing findings were made and explained	Not considered—unpreserved; review denied under Rule 32

State v. Swoopes, 216 Ariz. 390 (App. 2007) (standard for overturning PCR rulings: abuse of discretion)
State v. Smith, 184 Ariz. 456 (1996) (no fundamental-error review in PCR proceedings)
State v. Schrock, 149 Ariz. 433 (1986) (trial court discretion in granting or denying Rule 32 relief)
State v. Ramirez, 126 Ariz. 464 (App. 1980) (issues on review must first be presented to the trial court)
State v. Wagstaff, 161 Ariz. 66 (App. 1988) (reviewing court will not consider issues not raised below)
State v. Bortz, 169 Ariz. 575 (App. 1991) (Rule 32 exhaustion requirement for issues to be considered on review)
Canion v. Cole, 210 Ariz. 598 (2005) (strict compliance required with Rule 32 procedural requirements)