Opinion
2 CA-CR 2023-0067-PR
05-23-2023
The State of Arizona, Respondent, v. Fabian Ortiz, Petitioner.
MAYESTELLES PLLC, Phoenix By Candy Marrufo and Kaitlin S. DiMaggio Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20180515001 The Honorable Jeffrey T. Bergin, Judge
REVIEW GRANTED; RELIEF DENIED
MAYESTELLES PLLC, Phoenix
By Candy Marrufo and Kaitlin S. DiMaggio
Counsel for Petitioner
Judge Gard authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Vasquez concurred.
MEMORANDUM DECISION
GARD, JUDGE
¶1 Fabian Ortiz seeks review of the trial court's ruling summarily 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 abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Ortiz has not met his burden of establishing such abuse here.
¶2 After a jury trial, Ortiz was convicted of stalking, kidnaping, aggravated assault, and two counts of sexual assault. The trial court sentenced him to consecutive and concurrent prison terms totaling seventeen years. We affirmed Ortiz's convictions and sentences on appeal. State v. Ortiz, No. 2 CA-CR 2020-0045 (Ariz. App. Mar. 31, 2021) (mem. decision). Ortiz then sought post-conviction relief, raising multiple claims of ineffective assistance of trial counsel, including counsel's failure to introduce "essential" text message evidence at trial; properly preserve the record for appeal regarding alleged other-acts and character evidence; file a motion to sever; and, present a "legally sound argument" for the admission of photographic evidence. Ortiz also asserted counsel improperly introduced evidence that he was in jail at the time of the trial, and requested an evidentiary hearing.
¶3 In December 2022, the trial court summarily dismissed Ortiz's petition, concluding after "significant deliberation" that he had failed to raise a colorable claim of ineffective assistance. This petition for review followed. On review, Ortiz repeats his arguments and maintains the court abused its discretion in summarily dismissing his petition. He reasserts that the cumulative effect of counsel's errors rendered his trial unfair and requests that we remand for an evidentiary hearing or vacate his convictions and grant him a new trial.
¶4 We cannot say the trial court abused its discretion in denying Ortiz's petition for post-conviction relief. The court clearly identified Ortiz's claims and correctly resolved them in a thorough, well-reasoned ruling, which we adopt, with one exception. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993) (when trial court has correctly ruled on issues raised "in a fashion that will allow any court in the future to understand the resolution[, n]o useful purpose would be served by this court rehashing the trial court's correct ruling in a written decision").
The trial court's ruling contains a factual error, which does not affect the outcome. In rejecting Ortiz's claim that counsel was ineffective for presenting character testimony from a detention officer, thereby revealing that Ortiz was incarcerated, the court stated that the officer testified that Ortiz had "protected him during an altercation at the jail." The officer, however, did not testify regarding this incident, instead opining generally that Ortiz was respectful, well-behaved, and a person of good character. Excluding this factual error, we conclude that Ortiz failed to overcome the presumption that counsel acted reasonably by presenting brief testimony from the officer highlighting Ortiz's good character. See State v. Pandeli, 242 Ariz. 175, ¶ 7 (2017). Moreover, Ortiz has shown no reasonable probability that, but for counsel's alleged error, the result of the proceeding would have been different. See id. ¶ 6.
Insofar as Ortiz argues trial counsel failed to preserve the record for appeal regarding alleged other-acts and character evidence, requiring appellate counsel to "engage in an extensive fundamental error analysis," we note that on appeal this court concluded that permitting the victim to testify about that evidence did not constitute any error, much less fundamental error. Ortiz, No. 2 CA-CR 2020-0045, ¶¶ 39-42.
¶5 Although we adopt the trial court's ruling, we additionally comment on the court's correct conclusion that trial counsel was not ineffective for failing to file a motion to sever count one from counts two through five. Although count one (stalking) occurred on a different date than the other counts, as the court noted, the counts were properly joined under Rule 13.3, Ariz. R. Crim. P., and counsel's failure to file a motion to sever thus "was not objectively unreasonable." See Ariz. R. Crim. P. 13.3(a)(2), (3) (joinder proper where offenses leading to charges are "connected together in their commission" or are "alleged to have been a part of a common scheme or plan"). The court's ruling is supported by the history of the relationship between the victim and Ortiz, which is outlined in detail in our decision on appeal, Ortiz, No. 2 CA-CR 2020-0045, ¶¶ 2-14, 18-19. Notably, on appeal we also determined that, "All of this evidence that Ortiz had repeatedly 'behaved in an erratic, suicidal manner with a gun' was relevant to providing context for the jury and explaining why [the victim] would reasonably fear Ortiz's stalking threats and his behavior on the day of the kidnapping." Id. ¶ 41.
¶6 Accordingly, we grant review but deny relief.