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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                     STATE OF ARIZONA, Respondent,

                                        v.

                  DAVID SOLOMON SOVERO, Petitioner.

                         No. 1 CA-CR 15-0142 PRPC
                              FILED 4-27-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2009-109769-001
                 The Honorable Michael W. Kemp, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Arthur G. Hazelton, Jr.
Counsel for Respondent

David Solomon Sovero, Buckeye
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Judge James P. Beene joined.
                             STATE v. SOVERO
                            Decision of the Court

T H U M M A, Judge:

¶1             Petitioner David Solomon Sovero seeks review of an order
denying his petition for post-conviction relief, filed pursuant to Arizona
Rule of Criminal Procedure 32.1 (2017).1 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).
Finding no such error, this court grants review but denies relief.

¶2             In November 2010, Sovero pled guilty to two counts of first
degree murder and one count of aggravated assault, all dangerous but non-
repetitive offenses. Sovero stipulated to natural life sentences for the
murder convictions and to a prison term of years on the aggravated assault
conviction, with no agreements as to concurrency. As a part of the plea
agreement, the State dismissed five other felony counts and its notice of
intent to seek the death penalty for both murders. In January 2011, the court
sentenced Sovero to consecutive natural life prison terms for the murder
convictions and a consecutive 21-year prison term for the aggravated
assault conviction.

¶3            Sovero filed his petition for post-conviction relief in this case
on September 2014. Sovero claimed his pleas were not knowing, intelligent
and voluntary because he was taking psychotropic medication under a
doctor’s care at the time. In pressing this argument, Sovero failed to present
a colorable claim. Sovero offered nothing from a medical professional to
explain the effects of any relevant medication in general or its effects on him
specifically. Moreover, although he pled guilty in November 2010, the
medical records he provides (which show that he was taking psychotropic
medication at one time) end in May 2010, six months before the change-of-
plea hearing.

¶4            While Sovero said at the November 2010 change-of-plea
hearing that he was still taking medication for mental health issues, he did
not identify the medications and did not complain of their effects, but
explained to the court that the medications helped him think more clearly.
Sovero then went through the full colloquy with the court and stated he
understood all the terms of the plea agreement, including the full range of
penalties. Nothing about that colloquy suggests his pleas were not
knowing, intelligent and voluntary. Moreover, given the nature of his

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.



                                       2
                             STATE v. SOVERO
                            Decision of the Court

claims, because Sovero failed to present a colorable claim regarding his
pleas, he has also failed to present a colorable claim of ineffective assistance
of counsel based on the failure to raise this issue at the change-of-plea
hearing.

¶5            Sovero also argues the State failed to disclose the
supplemental report of an officer who investigated the aggravated assault,
which he claims proves he did not commit aggravated assault because it
states two witnesses did not see him point a gun at the victim. That two
witnesses did not see Sovero point a gun at the victim does not show he did
not point a gun at the victim. Nor does Sovero claim the report is newly
discovered evidence. Moreover, a plea agreement waives all non-
jurisdictional defenses, errors and defects that occurred before the plea,
meaning relief on this ground properly is denied. State v. Moreno, 134 Ariz.
199, 200 (App. 1982).

¶6             Sovero next argues ineffective assistance of trial counsel,
arguing his attorney failed to put adequate time into his case; failed to
investigate and interview witnesses and failed to request a hearing
pursuant to Arizona Rule of Evidence 609 regarding the impeachment at
trial of two witnesses with their prior felony convictions. To state a
colorable claim of ineffective assistance of counsel, a defendant must show
that counsel’s performance fell below objectively reasonable standards and
that the deficient performance prejudiced the defendant. Strickland v.
Washington, 466 U.S. 668, 687 (1984). On this record, relief properly was
denied because Sovero failed to present a colorable claim of ineffective
assistance of counsel.

¶7            First, Sovero’s argument about the amount of time his trial
attorney spent focuses on how much time counsel spent in the jail facility
visiting Sovero, the same subject of a motion to change counsel Sovero filed
nearly a year before he pled guilty. His argument does not challenge how
much time his attorney spent working on the case overall. To argue counsel
was not at the jail facility for as many hours as counsel claimed nearly a
year before Sovero pled guilty does not present a colorable claim that
counsel’s performance fell below objectively reasonable standards or that
Sovero suffered any prejudice.

¶8           Next, Sovero argues his trial attorney did not properly
investigate and/or interview witnesses. That argument, however, is not
supported by affidavits from those witnesses explaining what testimony
those witnesses could have offered. See State v. Borbon, 146 Ariz. 392, 399
(1985). Accordingly, relief properly was denied on that ground.


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                             STATE v. SOVERO
                            Decision of the Court

¶9            Sovero’s argument regarding a Rule 609 hearing similarly
shows no basis for relief. There was no reason to seek such a hearing unless
and until it became apparent that the matter would proceed to trial and
those witnesses would testify. Accordingly, relief properly was denied on
that ground.

¶10            Finally, Sovero argues his trial counsel was ineffective when
counsel failed to obtain the “law enforcement integrity files” of several
investigating officers; failed to depose investigators and failed to challenge
the grand jury proceedings. Sovero also argues the court erred when it
denied his request to assign a new judge to his post-conviction relief
proceedings. Sovero, however, did not raise these issues in his petition for
post-conviction relief. A petition for review may not present issues not first
presented to the superior court. See, e.g., State v. Bortz, 169 Ariz. 575, 577-78
(App. 1991); State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988); State v. Ramirez,
126 Ariz. 464, 468 (App. 1980); Ariz. R. Crim. P. 32.9(c)(1)(ii). Nor has Sovero
supported his argument that the assigned judge had a bias or prejudice
against him. Accordingly, this court will not address these issues.

¶11           For these reasons, this court grants review but denies relief.




                            AMY M. WOOD • Clerk of the Court
                            FILED: AA




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