Opinion
No. 2 CA-CR 2017-0356-PR
05-23-2018
THE STATE OF ARIZONA, Respondent, v. GILBERT YBARRA PENA, Petitioner.
COUNSEL Kent P. Volkmer, Pinal County Attorney By Geraldine L. Roll, Deputy County Attorney, Florence Counsel for Respondent Joe Saienni P.C., Phoenix By Joe Saienni Counsel for Petitioner
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NOT FOR PUBLICATION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. S1100CR201600444
The Honorable Joseph R. Georgini, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Kent P. Volkmer, Pinal County Attorney
By Geraldine L. Roll, Deputy County Attorney, Florence
Counsel for Respondent
Joe Saienni P.C., Phoenix
By Joe Saienni
Counsel for Petitioner
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred.
BREARCLIFFE, Judge:
¶1 Gilbert Pena seeks review of the trial court's order denying his petition for post-conviction relief and his "Motion for Rehearing and Motion for Transfer" filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb those orders unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Pena has not shown such abuse here.
¶2 Pena pled guilty to attempted child molestation and attempted sexual assault. For attempted sexual assault, the trial court sentenced Pena to a 4.5-year prison term. For attempted child molestation, the court suspended the imposition of sentence and placed Pena on lifetime probation.
¶3 Pena sought post-conviction relief, arguing the trial court had demonstrated "bias and prejudice" against him during sentencing. The trial court summarily denied relief. Pena then filed a "Motion for Rehearing and Motion for Transfer," asserting the court had erred because it failed to give specific reasons for its decision rejecting his claim, and requesting the case be transferred to another judge pursuant to Rule 32.4(e) because the trial court's "testimony regarding the sentence he delivered would assuredly be relevant in any post-conviction proceedings." The court denied the motion, and this petition for review followed.
¶4 On review, Pena repeats his claim that the trial court was biased, complaining about the court's management of the sentencing hearing and the fact the court imposed a sentence greater than the presumptive. He asserts he presented a colorable claim, and is entitled to an evidentiary hearing. To be entitled to an evidentiary hearing, Pena must have "alleged facts which, if true, would probably have changed the verdict or sentence." State v. Amaral, 239 Ariz. 217, ¶¶ 10-11 (2016).
¶5 Pena has not made a colorable claim. First, even if the trial court's management of the sentencing hearing demonstrated bias, which it plainly does not, Pena did not object below. Thus, to the extent his
argument relies on the court's conduct before it announced Pena's sentence, it is precluded as waived. See Ariz. R. Crim. P. 32.2(a)(3).
¶6 Pena additionally argues the trial court was biased because it imposed a prison term greater than the presumptive despite the presence of mitigating factors. "It is well established . . . that a 'trial judge is presumed to be free of bias and prejudice.'" State v. Medina, 193 Ariz. 504, ¶ 11 (1999), quoting State v. Rossi, 154 Ariz. 245, 247 (1987). And, judicial rulings alone do not support a finding of bias without a showing of an extrajudicial source of bias. See State v. Ellison, 213 Ariz. 116, ¶ 40 (2006). Pena has not attempted to make the required showing.
¶7 Nor has he demonstrated the trial court abused its discretion in weighing aggravating and mitigating factors in imposing sentence. See State v. Harvey, 193 Ariz. 472, ¶ 24 (App. 1998) ("The trial court has the discretion to weigh aggravating and mitigating factors."). And, although Pena asserts "an aggravated sentence is appropriate only when the judge does not find any mitigating factors," he appears to misapprehend A.R.S § 13-701. Section 13-701(F) provides that the court must impose an aggravated sentence if it "finds aggravating circumstances and the court does not find any mitigating circumstances." No portion of our sentencing statutes prohibits a court from imposing an aggravated sentence merely because it found mitigating factors. Indeed, § 13-701(F) expressly states otherwise.
¶8 Pena additionally argues the trial court's rulings in his Rule 32 proceeding also "call into question [the court's] impartiality." He first asserts the court's summary denial of his petition, without a specific explanation, was improper. This argument is meritless. Rule 32.6 does not require the court to articulate specific reasons for summary disposition. The only authority Pena cites in support of this argument is an unpublished memorandum decision. Not only does the decision not stand for the proposition Pena advances, he has not complied with Rule 111(c)(3), Ariz. R. Sup. Ct., by providing "either a copy of the decision or a hyperlink to the decision where it may be obtained without charge." Thus, we do not address this issue further. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (argument lacking citation to relevant authority waived on review).
¶9 Finally, Pena complains that the trial court erred by failing to transfer his motion for rehearing to another court pursuant to Rule 32.4(f). That subsection states "[t]he presiding judge must, if possible, assign a proceeding for post-conviction relief to the sentencing judge. If the
sentencing judge's testimony will be relevant, the case must be reassigned to another judge." Id. Even if we disregard that Pena's request for transfer was clearly untimely, having been filed after the trial court had denied his petition for post-conviction relief, Rule 32.4(f) does not apply. As we have explained, Pena's claim was not colorable, and the sentencing court's testimony was thus not relevant.
¶10 We grant review but deny relief. In doing so, we remind counsel of his obligation to raise only those claims for which "there is a good faith basis in law and fact for doing so that is not frivolous." Ariz. R. Sup. Ct. 42, ER 3.1.