Opinion
No. 2 CA-CR 2014-0241-PR
08-13-2013
THE STATE OF ARIZONA, Respondent, v. GLENN MICHAEL PERALTA, Petitioner.
Glenn Michael Peralta, 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 NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Mohave County
No. CR20091010
The Honorable Derek Carlisle, Judge
REVIEW GRANTED; RELIEF DENIED
Glenn Michael Peralta, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Vásquez concurred. ESPINOSA, Judge:
¶1 Glenn Peralta seeks review of the trial court's order 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 clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). No such abuse exists here.
¶2 Peralta was convicted of manslaughter after entering a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). As part of his plea agreement, he also admitted several aggravating factors and the trial court subsequently sentenced him to an aggravated, ten-year prison term. He thereafter filed a notice of post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record but had determined "there were no[] grounds to file a Rule 32 Petition."
"Alford stands for the proposition that a trial court may, without violating the Constitution, accept a plea of guilty from a defendant who maintains that he did not commit a crime." Duran v. Super. Ct., 162 Ariz. 206, 207, 782 P.2d 324, 325 (App. 1989).
¶3 Peralta then filed a pro se petition for post-conviction relief asserting his trial counsel had been ineffective for "fail[ing] to bring in expert witnesses that could ha[ve] cleared [him]" or to present witnesses on his behalf at sentencing. He further claimed counsel should have argued the trial court could not impose an aggravated sentence pursuant to Blakely v. Washington, 542 U.S. 296 (2004). He also maintained counsel had not adequately informed him about the strength of the state's case because counsel "had not received full discovery," had not adequately investigated the case, and failed "to challenge [the] sufficiency of evidence supporting [the] . . . guilty plea." He asserted "appellate counsel" had been ineffective in failing to raise a claim of "factual innocence" and a claim that his sentence was improper under Blakely.
¶4 The trial court summarily dismissed Peralta's petition. It concluded he had not adequately supported his claims. For example, he provided no indication what testimony witnesses would have offered that could have affected his sentence. Nor does he assert he would have not pled guilty and instead gone to trial had he received more information about the strength of the state's case. The court additionally concluded Peralta had waived his right to a jury determination of aggravating factors under Blakely. This petition for review followed.
¶5 On review, Peralta repeats his claim that trial counsel was ineffective both in preparing for his case and in advising him about whether to enter a no-contest plea. "To state a colorable claim of ineffective assistance of counsel," Peralta was required to "show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him]." State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006), citing Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate resulting prejudice, Peralta had to show a reasonable probability that the outcome would have been different absent counsel's ineffectiveness. See State v. Nash, 143 Ariz. 392, 398, 694 P.2d 222, 228 (1985). A claim for relief is colorable, and a defendant is therefore entitled to an evidentiary hearing, when the "allegations, if true, would have changed the verdict" or sentence. State v. Krum, 183 Ariz. 288, 292, 903 P.2d 596, 600 (1995).
Peralta also raises several claims not asserted below, including that there was insufficient evidence to support his conviction, that counsel was ineffective in "having [him] waive his Blakely" rights, that his sentence violates the Eighth Amendment, and that he is actually innocent and the court "failed to move [the] case to a neutral city." We do not address claims raised for the first time on review. See Ariz. R. Crim. P. 32.9(c)(1)(ii); State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980).
¶6 Peralta does not address the trial court's determination that he did not adequately support his claims in his petition for post-conviction relief. Although he generally asserts he is innocent and would have prevailed at trial, he identifies no specific witnesses counsel should have interviewed or evidence counsel should have uncovered. See State v. Borbon, 146 Ariz. 392, 399, 706 P.2d 718, 725 (1985) (trial court properly dismissed claim of ineffective assistance based on counsel's failure to call witnesses when petitioner failed to identify witnesses or provide affidavits containing "testimony they would have offered"); see also Ariz. R. Crim. P. 32.5 ("Affidavits, records, or other evidence currently available to the defendant supporting the allegations of the petition shall be attached to it."). To warrant an evidentiary hearing, a Rule 32 claim "must consist of more than conclusory assertions." State v. Donald, 198 Ariz. 406, ¶ 21, 10 P.3d 1193, 1201 (App. 2000). Thus, the trial court did not err in summarily rejecting his claims.
¶7 Although review is granted, relief is denied.