Opinion
2 CA-CR 2023-0150-PR
11-13-2023
The State of Arizona, Respondent, v. Louis J. Leonard, Petitioner.
Louis J. Leonard, Eloy In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20195353001 The Honorable Howard Fell, Judge Pro Tempore
Louis J. Leonard, Eloy In Propria Persona
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vasquez and Judge Gard concurred.
MEMORANDUM DECISION
EPPICH, PRESIDING JUDGE
¶1 Louis Leonard seeks review of the superior court's order dismissing his petition for post-conviction relief filed pursuant to Rule 33, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Leonard has not met his burden of establishing such abuse here.
¶2 Leonard pled guilty to first-degree burglary, attempted first-degree murder, and two counts of aggravated assault with a deadly weapon or dangerous instrument. His convictions stemmed from an incident in October 2019 in which he broke into the home of his former girlfriend A.C., stabbed her father repeatedly, and fought with A.C. and her mother while wielding a knife. For the two assaults and attempted murder, the superior court sentenced Leonard to concurrent, aggravated prison terms, the longest of which is sixteen years for attempted murder. The court found as aggravating factors that there were multiple victims; that Leonard had caused "extremely serious injuries," particularly to A.C.'s father, "financial harm to the family," and emotional trauma; that Leonard was "a danger to the community" and had violated an order of protection; and that a minor (A.C.) was present. For burglary, the court suspended the imposition of sentence and placed Leonard on a seven-year term of probation. It also imposed restitution, ordering Leonard to pay $6,500 to the victims and $25,000 to the victims' compensation fund.
¶3 Leonard sought post-conviction relief, arguing the superior court had erred in considering Leonard's infliction of injuries to A.C.'s father as an aggravating factor for Leonard's sentence for attempted murder because that fact was "utilized to enhance the range of punishment under A.R.S. § 13-704." He further argued the court apparently "did not factor the enhanced range into its sentencing decision" because it "never explicitly addressed or acknowledged" his sentences "were already at the enhanced range." He also asserted the court did not give sufficient weight in mitigation to Leonard's diagnosis with PTSD and background of abuse. Last, Leonard claimed the restitution award was improper in light of a $1,000,000 civil settlement against him in favor of the victims. In response, the state argued the aggravated sentences were proper and asked the court to set a restitution hearing. The court set a hearing and, after argument and taking restitution evidence, affirmed its previous restitution awards and Leonard's sentences. This petition for review followed.
¶4 On review, Leonard argues that the superior court "erred in its determination and balancing of aggravating and mitigating factors" and that its "restitution order was improper." As he acknowledges, however, the bulk of his arguments regarding his aggravated sentences were not raised in the superior court. He correctly points out that we generally do not address claims raised for the first time on review; we decline his invitation to do so here and limit our review to the arguments raised below. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (appellate court will not address arguments asserted for first time in petition for review).
Specifically, we do not address his arguments regarding the following aggravating and mitigating factors: the presence of a minor, multiple victims, financial harm, danger to the community, and his age.
¶5 Leonard reasserts on review his claim that the superior court erred by finding the infliction of serious physical injury as an aggravating factor in imposing the sentence for attempted murder. He reasons that factor was unavailable for aggravation because it and his use of a weapon were alleged in support "of [the] dangerous nature of the offense." Section 13-704 provides the sentencing range for dangerous offenses as defined by A.R.S. § 13-105(13): "an offense involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person." The use of a deadly weapon and infliction of serious injury are also statutory aggravating factors but may not be considered if they are "an essential element of the offense of conviction or ha[ve] been utilized to enhance the range of punishment under § 13-704." A.R.S. § 13-701(D)(1), (2).
¶6 We find no error in Leonard's sentence for attempted murder. Neither the use of a weapon nor the infliction of serious physical injury are essential elements of that offense. See A.R.S. §§ 13-1001(A), 13-1105(A)(1). And, because § 13-105(13) is disjunctive, either circumstance is sufficient to support an enhanced sentence under § 13-704. See State v. Bowsher, 225 Ariz. 586, ¶ 7 (2010) ("The word 'or' generally means '[a] disjunctive particle used to express an alternative or to give a choice of one among two or more things.'" (alteration in Bowsher) (quoting Black's Law Dictionary 1095 (6th ed. 1990))). Thus, the superior court was free to consider the remaining circumstance as an aggravating factor under § 13-701(D).
And, in any event, the superior court made clear it would have imposed the same sentence absent that factor.
¶7 Leonard also renews his argument that the restitution award was improper because the victims had already received a civil settlement. But, at the restitution hearing held after Leonard filed his petition below, he largely abandoned this argument. He acknowledged at that hearing that it was proper for the superior court to order as restitution the $25,000 the victims had received from the victims' compensation fund. And, although he asserted that part of the $6,500 might be improper because it was for new security screens and "not a replacement of screens," he does not develop this specific argument on review. Accordingly, we do not address it further. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim). We also do not address Leonard's claim that he is entitled to have property returned to his family. Even were that a proper post-conviction claim, it was not raised below. See Ramirez, 126 Ariz. at 468.
¶8 We grant review but deny relief.