Opinion
No. 1 CA-CR 18-0840 PRPC
09-17-2019
STATE OF ARIZONA, Respondent, v. ANTHONY L DIAZ, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By E. Catherine Leisch Counsel for Respondent Anthony L. Diaz, Florence 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2016-118830-001
The Honorable Dean M. Fink, Judge
REVIEW GRANTED AND RELIEF DENIED
COUNSEL Maricopa County Attorney's Office, Phoenix
By E. Catherine Leisch
Counsel for Respondent Anthony L. Diaz, Florence
Petitioner
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Jennifer M. Perkins and Judge David D. Weinzweig joined. HOWE, Judge:
¶1 Anthony L. Diaz petitions this Court for review from the dismissal of his petition for post-conviction relief ("PCR"), filed pursuant to Arizona Rule of Criminal Procedure ("Rule") 32. We have considered the petition for review and, for the reasons stated, grant review but deny relief.
FACTS AND PROCEDURAL HISTORY
¶2 Diaz pled guilty to one count of sexual exploitation of a minor, a class 2 felony and dangerous crime against children, and two counts of attempted sexual exploitation of a minor, class 3 felonies and dangerous crimes against children. The trial court imposed a 12-year mitigated prison term for the completed offense followed by lifetime probation for the attempted offenses.
¶3 Diaz then timely commenced Rule 32 proceedings. Assigned PCR counsel reviewed the record and other pertinent materials but was unable to discern any colorable PCR claims. On behalf of Diaz, PCR counsel filed a pro se petition in which Diaz claimed sentencing counsel provided ineffective assistance at sentencing by failing to request the trial court explain its reasons for not imposing the minimum sentence of 10 years' imprisonment. Diaz also requested a reduced sentence based on his rehabilitation during incarceration and other "mitigating factors." Diaz subsequently supplemented his brief and raised an ineffective assistance of counsel claim regarding PCR counsel, arguing she filed the "draft" petition against his instructions. The trial court considered the petition and supplements and summarily denied relief because Diaz failed to present any colorable claims.
DISCUSSION
¶4 On review, Diaz contends that sentencing counsel and PCR counsel ineffectively represented him by failing to request the trial court explain its rationale for its sentencing decision. Specifically, Diaz argues that sentencing counsel should have sought clarification regarding whether A.R.S. § 13-705(D) or A.R.S. § 13-706 applied to his sentencing. Diaz also argues sentencing counsel should have requested the court provide the legal basis for its considering "proportionality of the sentence with respect to others standing in a similar position." Finally, Diaz argues, for the first time on appeal, that both sentencing counsel and PCR counsel were ineffective by failing to subject the State to meaningful adversarial testing.
¶5 Absent an abuse of discretion or error of law, this Court will not disturb the trial court's ruling on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012). 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 resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). We review issues raised for the first time on appeal for fundamental error. State v. Bolton, 182 Ariz. 290, 297 (1995). To establish fundamental error, a defendant must establish that (1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice. State v. Smith, 219 Ariz. 132, 136 ¶ 21 (2008). Failure to argue a claim on appeal constitutes a waiver of that claim. Bolton, 182 Ariz. at 298.
¶6 Diaz's arguments are without merit. First, he pled guilty to violating A.R.S. § 13-3553, which expressly states that sexual exploitation of a minor is punishable under § 13-705. In his plea agreement, Diaz also agreed that the offense has a presumptive sentence of 17 years, a minimum sentence of 10 years, and a maximum sentence of 24 years as provided in § 13-705. See A.R.S. § 13-705(D). Nowhere in the charging documents, the plea agreement, or sentencing memoranda is there a reference to A.R.S. § 13-706. Further, the State requested a presumptive 17-year term at sentencing, and sentencing counsel argued for a minimum 10-year sentence. On this record, Diaz clearly was sentenced under § 13-705(D), and Diaz points to no authority that requires the court to explain its rationale for imposing a sentence under § 13-705(D). Accordingly, the trial court did not err in finding Diaz failed to show that sentencing counsel was objectively unreasonable by not requesting clarification for the court's statutory basis to impose a mitigated 12-year sentence.
Referring to the available minimum 10-year term, Diaz incorrectly characterizes his 12-year sentence as "aggravated" or "enhanced." Diaz points to nothing in the record to support his assertion that "[t]he court decided to sentence Appellant to a minimum of 10 years in prison in this case."
¶7 Second, sentencing counsel requested that the trial court consider proportionality as a mitigating factor at sentencing; thus, sentencing counsel cannot be faulted for failing to request the court explain its rationale for considering proportionality. Indeed, when the court considered proportionality, Diaz benefited by being sentenced to a mitigated term. The court, therefore, did not abuse its discretion in dismissing the ineffective assistance of counsel claim against sentencing counsel.
¶8 To the extent Diaz contends PCR counsel provided ineffective assistance by filing Diaz's "draft" Rule 32 petition, he fails to establish any resulting prejudice. In issuing its dismissal order, the trial court noted it reviewed not only the petition, but also Diaz's supplements thereto. Thus, whatever impropriety resulted from the "draft" filing, it did not prevent Diaz from providing the court with all his claims. No abuse of discretion occurred.
¶9 Lastly, Diaz fails to develop his argument that both sentencing counsel and PCR counsel failed to subject the State to meaningful adversarial testing. He presented no argument regarding how the error was fundamental or how he was prejudiced by the error. As a result, Diaz waives this argument on appeal. See Bolton, 182 Ariz. at 298.
¶10 Accordingly, we grant review but deny relief.