Opinion
No. 2 CA-CR 2019-0233-PR
06-02-2020
THE STATE OF ARIZONA, Respondent, v. MANUEL MARTINEZ, Petitioner.
COUNSEL Kent P. Volkmer, Pinal County Attorney By Geraldine L. Roll, Deputy County Attorney, Florence Counsel for Respondent Manuel Martinez, Buckeye 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NOT FOR PUBLICATION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. S1100CR201201533
The Honorable Kevin D. White, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Kent P. Volkmer, Pinal County Attorney
By Geraldine L. Roll, Deputy County Attorney, Florence
Counsel for Respondent Manuel Martinez, Buckeye
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. EPPICH, Presiding Judge:
¶1 Petitioner Manuel Martinez seeks review of the trial court's ruling dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court has abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). Martinez has not met his burden of establishing 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.
¶2 After a jury trial, Martinez was convicted of first-degree burglary, three counts of second-degree burglary, theft, and two counts of criminal damage. The trial court sentenced him to time served for the two criminal damage convictions and to a combination of consecutive and concurrent prison terms totaling thirty-eight years for the remaining convictions. On appeal, this court vacated one of Martinez's criminal damage convictions based on the trial court's failure to sever; we otherwise affirmed his convictions and sentences. State v. Martinez, No. 2 CA-CR 2016-0385 (Ariz. App. June 8, 2018) (mem. decision).
¶3 Martinez initiated a proceeding for post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record but had found no colorable claims to raise in a Rule 32 petition. In his subsequently filed pro se petition, Martinez asserted numerous claims, including that trial counsel had been ineffective in failing to 1) advise him regarding a plea agreement; 2) raise issues regarding the destruction of a pair of shoes seized as evidence and other evidence gathered by a crime-scene technician who resigned in lieu of being terminated from the police department after an internal investigation in an unrelated case; 3) file various motions, including a renewal of the request to sever and motions related to DNA testing of evidence; 4) investigate, subpoena witnesses, and present a defense; and 5) retain a mitigation specialist. He also raised constitutional challenges, including that the denial of his motion for change of judge violated his due process rights.
During the pretrial, trial, and sentencing proceedings, Martinez was represented by four attorneys. We refer to them collectively here.
¶4 The trial court summarily dismissed Martinez's petition. It found certain claims precluded "because they could have been raised on appeal" and the remainder of the claims "not colorable." This petition for review followed.
¶5 On review, Martinez repeats several of his claims of ineffective assistance of trial counsel. Specifically, he argues that counsel was ineffective in failing to advise him regarding the plea, to raise issues related to the pair of shoes and a hat seized as evidence, to renew the motion to sever, to challenge evidence gathered by the crime-scene technician who resigned, to secure defense witnesses, and to retain a mitigation specialist. He does not, however, identify any legal or factual error in the trial court's rejection of those claims.
¶6 In its thorough, well-reasoned ruling, the trial court clearly identified Martinez's ineffective assistance of counsel claims and correctly resolved them in a manner that will allow any court in the future to understand. Because the court's findings and conclusions are supported by the record before us, we need not repeat that analysis here and, instead, adopt it. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993).
In its ruling, the trial court noted there was a hearing during which Martinez "acknowledged he understood the plea offer, and he expressly rejected it." The court, however, cited an incorrect date; that hearing was held on November 1, 2013. --------
¶7 Martinez also argues that trial counsel was ineffective in failing to challenge his indictment as duplicitous and to investigate his competency to stand trial. He also seems to suggest the state did not comply with disclosure requirements under Rule 15.1, Ariz. R. Crim. P. However, Martinez did not raise these arguments below. We therefore do not consider them for the first time on review. See Ariz. R. Crim. P. 32.16(c)(2)(b) (appellate court reviews issues presented to trial court); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (appellate court will not address arguments asserted for first time in petition for review).
¶8 Lastly, Martinez contends the judge who presided over his trial was biased and should have recused himself. To the extent this argument is based on the denial of his motion for change of judge, we agree with the trial court that any such claim is precluded. See Ariz. R. Crim. P. 32.1(a), 32.2(a)(3). However, to the extent Martinez is asserting a standalone claim of judicial bias because the same judge ruled on his Rule 32 proceeding, he has not indicated under which Rule 32.1 ground for relief his claim falls. And although Rule 32.10(a) allows a defendant to request a change of judge in post-conviction proceedings, it does not apply here, where the sentencing judge presides over those proceedings. See Ariz. R. Crim. P. 10.1, 32.10(a).
¶9 Accordingly, we grant review but deny relief.