Opinion
No. 2 CA-CR 2017-0238-PR
01-04-2018
THE STATE OF ARIZONA, Respondent, v. ROBERT ALLISON, Petitioner.
COUNSEL Kent K. Volkmer, Pinal County Attorney By Geraldine L. Roll, Deputy County Attorney, Florence Counsel for Respondent Robert Allison, Florence In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pinal County
No. S1100CR201402963
The Honorable Kevin D. White, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Kent K. Volkmer, Pinal County Attorney
By Geraldine L. Roll, Deputy County Attorney, Florence
Counsel for Respondent
Robert Allison, Florence
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Espinosa and Judge Brearcliffe concurred.
STARING, Presiding Judge:
¶1 Robert Allison seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court clearly abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Allison has not demonstrated such abuse here.
¶2 Allison pled guilty to three counts of sexual assault, three counts of sexual exploitation of a minor, and one count of voyeurism. For the sexual assaults, voyeurism, and one of the counts of sexual exploitation, the trial court sentenced him to consecutive prison terms totaling 27.5 years. For the remaining counts of sexual exploitation, the court suspended the imposition of sentence and placed Allison on lifetime probation.
¶3 Allison sought post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but was "unable to find any meritorious or colorable claims for relief." Allison then filed a pro se petition, arguing he had been "unlawfully detained" while being questioned and a police officer had unlawfully entered his home without a warrant. He also argued trial counsel had been ineffective for failing to raise those issues, suggested the state and court had violated his due process rights by not excluding the evidence, and asserted the factual basis for his plea was insufficient without the "tainted evidence" uncovered in the search. The trial court summarily denied relief, concluding that Allison had waived the bulk of his claims by pleading guilty and that he had not "provided . . . specific facts" demonstrating "counsel's performance fell below objectively reasonable standards" or shown resulting prejudice. This petition for review followed the court's denial of Allison's motion for reconsideration.
¶4 On review, Allison first argues the trial court erred by concluding he had waived his arguments by pleading guilty. He acknowledges the general rule that, "[b]y entering a guilty plea, a defendant
waives all non-jurisdictional defects and defenses." State v. Leyva, 241 Ariz. 521, ¶ 18 (App. 2017), quoting State v. Banda, 232 Ariz. 582, ¶ 12 (App. 2013). He asserts, however, that "this level of waiver was never addressed during the plea deal proceedings" and, thus, he could not have waived "issues that could otherwise have been raised in a later collateral proceeding." But Allison's plea agreement specifically provided that he "waives and gives up any and all motions, defenses, objections, or requests which he has made or raised, or could assert hereafter, to the court's entry of judgment against him and imposition of a sentence upon him consistent with this agreement." Allison has not explained how this provision does not encompass the claims raised in his petition for post-conviction relief.
¶5 Allison further asserts he made a colorable claim of ineffective assistance of counsel. But his waiver of rights includes claims of ineffective assistance of counsel "except those that relate to the validity of a plea." Id., quoting Banda, 232 Ariz. 582, ¶ 12. "A plea is valid if it was entered voluntarily, knowingly and intelligently, and with the competent advice of counsel, and there is strong evidence of guilt." State v. Hamilton, 142 Ariz. 91, 94 n.3 (1984) (citations omitted). Allison does not develop any argument that counsel's conduct rendered his plea invalid—his claim centers solely on his allegation that counsel should have raised arguments seeking suppression of evidence. Thus, the trial court did not err in summarily rejecting this claim.
¶6 We grant review but deny relief.