Opinion
No. 2 CA-CR 2020-0159-PR
09-30-2020
THE STATE OF ARIZONA, Respondent, v. JUAN ESPINO-TORRES, Petitioner.
Juan Espino-Torres, 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NOT FOR PUBLICATION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 Maricopa County
No. CR2008007464001DT
The Honorable Sally Schneider Duncan, Judge
REVIEW GRANTED; RELIEF DENIED
Juan Espino-Torres, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 Juan Espino-Torres seeks review of the trial court's ruling summarily dismissing his notice of post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Espino-Torres has not shown such abuse here.
Effective January 1, 2020, our supreme court amended the post-conviction relief rules. Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). The amendments apply to all cases pending on the effective date unless a court determines that "applying the rule or amendment would be infeasible or work an injustice." Id. "Because it is neither infeasible nor works an injustice here, we cite to and apply the current version of the rules." State v. Mendoza, 249 Ariz. 180, n.1 (App. 2020). --------
¶2 After a jury trial, Espino-Torres was convicted of five counts of sexual conduct with a minor and one count of sexual abuse. He was sentenced to consecutive twenty-year prison terms for two of the sexual conduct counts. For the remaining counts, the trial court suspended the imposition of sentence and placed Espino-Torres on lifetime probation. We affirmed his convictions and sentences on appeal. State v. Espino-Torres, No. 1 CA-CR 09-0212 (Ariz. App. Dec. 17, 2009) (mem. decision). Before this proceeding, Espino-Torres has sought and been denied post-conviction relief four times, most recently in 2016, after which this court denied relief pursuant to his petition for review. State v. Espino-Torres, No. 1 CA-CR 16-0309 PRPC (Ariz. App. July 6, 2017) (mem. decision).
¶3 In May 2019, Espino-Torres filed a notice of post-conviction relief asserting there had been a significant change in the law, specifically the legislature's 2018 modification of A.R.S. § 13-1407 removing an affirmative defense to sexual abuse and child molestation "that the defendant was not motivated by a sexual interest." 2018 Ariz. Sess. Laws, ch. 266 § 2. He also cited Rule 32.1(e) and (f) and asserted that "Arizona used unconstitutional statutes to convict and sentence [him]." The trial court summarily denied relief; this petition for review followed the court's denial of Espino-Torres's motion for rehearing.
¶4 On review, Espino-Torres first argues the trial court did not comply with Rule 32.4(b)(4) by sending his notice to various parties, waiting for the state to file a response as required by Rule 32.9(a)(1), or waiting until briefing was completed before ruling pursuant to Rule 4.5, Maricopa Cty. Super. Ct. Loc. R. P. Even if we agreed, however, that the court had not complied with these rules, Espino-Torres has not shown prejudice because his claims warranted summary rejection. And, for the same reason, we reject his argument that the court treated him "unequal[ly]" because courts in other counties had allowed "full briefing" before dismissal.
¶5 As the trial court correctly noted, Espino-Torres's constitutional claims are long precluded and cannot be raised in this successive and untimely proceeding. Ariz. R. Crim. P. 32.2(a)(3), 32.4(b)(3)(A). The court also correctly observed that Rule 32.1(f) does not apply to notices of post-conviction relief filed by non-pleading defendants like Espino-Torres, and that he had identified no newly discovered material facts that could entitle him to relief under Rule 32.1(e). Finally, his claim that the 2018 changes to § 13-1407 constitute a significant change in the law under Rule 32.1(g) is facially meritless. As Espino-Torres acknowledged in his notice below, the legislature did not expressly make the 2018 changes retroactive. "No statute is retroactive unless expressly declared therein." A.R.S. § 1-244.
¶6 We grant review but deny relief.