State v. Pinedo2/27/2004
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
Petitioner Hector Manuel Pinedo pled guilty to one count of aggravated driving while under the influence of alcohol (DUI) while his driver's license was suspended, cancelled, or revoked, a class four felony. The state alleged that Pinedo had one prior felony conviction, which he admitted. The trial court sentenced Pinedo to a partially aggravated prison term of five years. He then filed a petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., 17 A.R.S., challenging the length of his sentence. This pro se petition for review followed the trial court's summary denial of relief. We will not disturb a trial court's ruling on a petition for post-conviction relief unless the court clearly has abused its discretion. State v. Watton, 164 Ariz. 323, 325, 793 P.2d 80, 82 (1990). The court did not abuse its discretion here.
Pinedo presents two issues in his petition for review. He first claims that trial courts treat indigent defendants disparately, arguing that his sentence was excessive because he was represented by appointed, rather than retained, counsel. Because Pinedo did not present this issue to the trial court in his Rule 32 petition, it is not properly before us and we cannot address it. Ariz. R. Crim. P. 32.9(c).
Pinedo also challenges the partially aggravated prison term, claiming that the court failed to give sufficient weight to the mitigating factors before it. How much weight to be given any factors asserted in aggravation or mitigation is a matter within the discretion of the sentencing court. State v. Towery, 186 Ariz. 168, 189, 920 P.2d 290, 311 (1996). The court has broad latitude in the exercise of that discretion. State v. Cameron, 146 Ariz. 210, 215, 704 P.2d 1355, 1360 (App. 1985). Rarely will we find an abuse of discretion if the trial court has fully considered the relevant sentencing factors presented, State v. Webb, 164 Ariz. 348, 355, 793 P.2d 105, 112 (App. 1990), and the sentence imposed is within the statutory parameters, as Pinedo's sentence is. See State v. Patton, 120 Ariz. 386, 390, 586 P.2d 635, 639 (1978).
As the court noted in its minute entry denying post-conviction relief, Pinedo did not allege that the sentencing court had failed to consider all of the mitigating evidence, only that it did not give these factors appropriate weight. The mitigating factors the court cited at sentencing were Pinedo's remorse, his family support, the support from and ties to the community, his military service and work ethic, and his severe addiction to alcohol. In aggravation, the court noted Pinedo's five prior DUI convictions, the danger and risk to the community posed by his drinking and driving, his failure to respond to prior rehabilitative efforts, his poor performance while previously on probation, his continued abuse of alcohol, and his most recent offense, which had taken place while Pinedo was on probation for a prior DUI offense.
At the sentencing hearing, the court noted that it had read the presentence report and the letters of support submitted on Pinedo's behalf and by Pinedo himself. The court also noted that it was not sentencing Pinedo because of his drinking problem; rather, it was sentencing him to protect the community and Pinedo from the danger of his driving while under the influence of alcohol. Moreover, we note that Pinedo's five-year sentence was within the 4.5-to-7.5-year sentencing range the court had told him to expect before he changed his plea. There simply is no evidence that the court did not consider the mitigating factors before it or that the sentence imposed was an abuse of the court's
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