Opinion
No. 1 CA-CR 16-0624 PRPC
10-31-2017
STATE OF ARIZONA, Respondent, v. GREGORY KENNY, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Lisa Marie Martin Counsel for Respondent Law Offices of Trent R. Buckallew PC, Mesa By Trent R. Buckallew Counsel for Petitioner
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Petition for Review from the Superior Court in Maricopa County
No. CR2013-004351-001
The Honorable Michael W. Kemp, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Maricopa County Attorney's Office, Phoenix
By Lisa Marie Martin
Counsel for Respondent Law Offices of Trent R. Buckallew PC, Mesa
By Trent R. Buckallew
Counsel for Petitioner
MEMORANDUM DECISION
Chief Judge Samuel A. Thumma delivered the decision of the court in which Presiding Judge Kenton D. Jones and Judge Jon W. Thompson joined. THUMMA, Chief Judge:
¶1 Petitioner Gregory Kenny seeks review of the superior court's order denying his petition for post-conviction relief, filed pursuant to Arizona Rule of Criminal Procedure 32.1 (2017). Absent an abuse of discretion or error of law, this court will not disturb a superior court's ruling on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012). Because Kenny has shown no such error, this court grants review but denies relief.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. --------
¶2 In January 2015, Kenny pled guilty to sexual conduct with a minor under age 15 (Victim A), a Class 2 felony and a dangerous crime against children (DCAC) in the first degree; attempted molestation of a child, a Class 3 felony and a DCAC in the second degree (Victim A) and attempted molestation of a child, a Class 3 felony and a DCAC in the second degree (Victim B), each committed on or between September 1, 2012 and December 20, 2012. The written plea agreement stipulated that, for the Class 2 felony conviction, Kenny would be sentenced to prison (with a presumptive term of 20 years and a range of 13 to 27 years) and that he would be placed on lifetime probation for the other two convictions. It also stipulated that all three offenses "resulted in emotional harm to the victim."
¶3 At sentencing, the superior court found the following mitigating factors: lack of a criminal record and remorse. The court discussed the following aggravating factors: the harm to the victims as stipulated in the plea, and the "violation of trust" in relation to the victims. The court also noted the "vulnerable" age of the 10-year old victims, giving substantial weight to the "significant impact this has had on the victims." The court sentenced Kenny to a "slightly aggravated" term of 22 years in prison for the Class 2 felony conviction and placed him on lifetime probation for the other two convictions.
¶4 In February 2016, Kenny timely filed his "of right" petition for post-conviction relief, alleging that the sentence imposed was unlawful, as the superior court did not give due consideration to additional mitigating factors Kenny presented. After receiving a response and reply, the superior court summarily denied the petition. Kenny's timely petition for review by this court followed.
¶5 A sentencing court is not required to find that mitigating circumstances exist merely because mitigating circumstances are presented; the court is only required to give the evidence due consideration. State v. Fatty, 150 Ariz. 587, 592 (App. 1986). When a sentence is within statutory limits, it will not be modified on review unless it clearly appears that the superior court abused its discretion. Id. The weight to be given to any mitigating circumstance rests within the superior court's sound discretion. State v. Cazares, 205 Ariz. 425 ¶8 (App. 2003). Moreover, a superior court is not required to make its sentencing decision based upon the number of aggravating or mitigating circumstances. State v. Marquez, 127 Ariz. 3, 7 (App. 1980). Provided the superior court fully considers the factors relevant to imposing sentence, as occurred here, there has been no abuse of discretion. State v. Webb, 164 Ariz. 348, 354 (App. 1990).
¶6 The superior court that took the plea, and later imposed the sentence, also presided over the settlement conference, and there were discussions on the record relating to a settlement memorandum that contained mitigation information. The superior court also noted at sentencing that it had reviewed the presentence report, the defense sentencing memorandum (including the attachments) and letters from the victims. The victims and their parents spoke at sentencing of the impact of Kenny's actions. In addition, Kenny stipulated to one aggravating factor in the plea agreement (harm to the victims), which authorized a sentence greater than presumptive. See Ariz. Rev. Stat. § 13-701(C). The superior court expressly enumerated the factors it considered in rendering its sentencing decision, clearly giving substantial weight to the harm and impact upon the victims. On this record, Kenny has shown no abuse of discretion by the superior court either in imposing sentence or by dismissing his petition for post-conviction relief.
¶7 For these reasons, this court grants review but denies relief.