Opinion
1 CA-CR 21-0386 PRPC
03-29-2022
STATE OF ARIZONA, Respondent, v. JORGE ALBIZURES ALEGRIA, Petitioner.
Maricopa County Attorney's Office, Phoenix By Amanda M. Parker Counsel for Respondent Jorge Albizures Alegria, Eloy Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2018-131001-001 The Honorable Ronee Korbin Steiner, Judge.
Maricopa County Attorney's Office, Phoenix
By Amanda M. Parker
Counsel for Respondent
Jorge Albizures Alegria, Eloy
Petitioner
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Cynthia J. Bailey and Judge D. Steven Williams joined.
MEMORANDUM DECISION
SWANN, Judge.
¶1 Petitioner Jorge Albizures Alegria asks this court to review the dismissal of his notice requesting post-conviction relief filed under Arizona Rule of Criminal Procedure ("Rule") 33. We have considered the petition for review and, for the reasons stated, grant review and grant relief in part.
FACTS AND PROCEDURAL HISTORY
¶2 Petitioner was indicted for kidnapping and molestation of a child. Pursuant to an agreement with the state, he pleaded guilty to amended charges of attempted kidnapping and attempted molestation of a child. Petitioner acknowledged in the written agreement that his admission of guilt could affect his immigration status and result in deportation.
¶3 On July 2, 2019, the superior court placed Petitioner on lifetime probation for his convictions. That same day, Petitioner signed a "Notice of Rights of Review After Conviction and Procedure" that informed him he could challenge the disposition of his case only by petitioning for post-conviction relief. The notice further provided that if Petitioner wished to seek post-conviction relief, he should file a notice "within 90 days of the entry of judgment and sentence" and that the failure to do so might deprive him of "another opportunity to have any errors made in [his] case corrected by another court."
¶4 Petitioner filed a notice requesting post-conviction relief on February 17, 2021. He acknowledged that his notice was untimely but disclaimed fault. He asked for an attorney and indicated that he intended to raise claims of ineffective assistance of counsel, newly discovered material facts, and actual innocence. He stated that though his trial attorney had advised him that signing the plea agreement would not subject him to immigration consequences, he was immediately turned over to Immigrations and Customs Enforcement and placed in removal proceedings. He further stated that though his trial counsel continued to represent him in the immigration proceedings and told him "not to worry," immigration courts at the trial and appellate level ultimately ruled that he was "ineligible for relief for which [his attorney] had represented that [he] would be eligible." Petitioner stated that he would not have pleaded guilty had his attorney provided accurate advice about the immigration consequences of his plea, and he contended that the "bad . . . advice" constituted newly discovered evidence warranting relief. With respect his actual innocence claim, Petitioner asserted that the fact he was "never alone with" the victim and only touched the victim "on the abdomen in a nonsexual manner" constituted "substantial evidence" that he committed no crime.
¶5 The superior court summarily dismissed Petitioner's notice and denied his request for counsel. The court reasoned that Petitioner did not provide a sufficient basis to excuse the untimeliness of his Rule 33.1(a) ineffective-assistance claim because he had notice of the 90-day deadline and he admitted that he was placed in removal proceedings before the deadline expired. The court also rejected Petitioner's contention that adverse rulings in his immigration proceedings constituted newly discovered material facts warranting relief under Rule 33.1(e). The court dismissed Petitioner's Rule 33.1(h) actual-innocence claim based on its finding that Petitioner did not allege facts meeting the standard for relief under the rule.
¶6 Petitioner sought an extension to seek reconsideration, and on the same day filed a "Motion for Reconsideration" with a declaration attached. He stated that his trial attorney continued to represent him in the immigration proceedings "for a substantial amount of time" and "continued to tell" him during that time that he was "still eligible for relief from removal" because he had not been convicted of "aggravated felonies" and the immigration courts had "misinterpreted the law." Petitioner said when he informed the attorney he desired to take back his plea after having spent a few weeks in immigration detention, the attorney told him that the plea "could not be changed under any circumstances." Petitioner said that his family had "[o]nly recently" retained a new attorney to represent him in the immigration proceedings, and until he secured new counsel his trial attorney "continued to tell [him] that it was the immigration court system that misinterpreted the law."
¶7 The superior court construed Petitioner's motion as one for rehearing and denied it as untimely and, in the alternative, for the reasons set forth in its original decision. Petitioner seeks review.
DISCUSSION
¶8 We grant review. We review the superior court's denial of post-conviction relief for an abuse of discretion, and will uphold its decision "if it is legally correct for any reason." State v. Roseberry, 237 Ariz. 507, 508, ¶ 7 (2015). The court abuses its discretion if it "makes an error of law or fails to adequately investigate the facts necessary to support its decision." State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017). We review the court's interpretation of rules and statutes de novo. State v. Gutierrez, 229 Ariz. 573, 576, ¶ 19 (2012).
¶9 Petitioner contends that the superior court misapplied the law and erroneously deprived him of an opportunity to prepare a petition assisted by appointed counsel. We agree that the record shows an abuse of discretion as to the dismissal of Petitioner's Rule 33.1(a) claim, but we find no abuse in the court's dismissal of his Rule 33.1(e) and (h) claims.
¶10 To raise a Rule 33.1(a) claim that a plea was obtained unconstitutionally, the defendant must file a notice requesting postconviction relief "within 90 days after the oral pronouncement of sentence." Rule 33.1(a), 33.4(b)(3)(A). But under Rule 33.4(b)(3)(D), "[t]he court must excuse an untimely notice requesting post-conviction relief [under Rule 33.1(a)] . . . if the defendant adequately explains why the failure to timely file a notice was not the defendant's fault."
The rules governing post-conviction relief were amended effective January 1, 2020, and apply to "all actions filed on or after January 1, 2020" and "all other actions pending on January 1, 2020, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies." Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). Pursuant to the above order, we cite and apply the current rules.
¶11 The superior court's dismissal of Petitioner's Rule 33.1(a) claim is flawed in that it reflects no consideration of Rule 33.4(b)(3)(D) or Petitioner's avowals that his trial attorney continued to represent him and to render allegedly deficient advice during the immigration proceedings. The court's reliance on State v. Botello-Rangel, 248 Ariz. 429, 434 (App. 2020), and State v. Poblete, 227 Ariz. 537 (App. 2011), was misplaced. As an initial matter, Poblete was decided before Rule 33.4(b)(3)(D) was adopted, and our supreme court vacated Botello-Rangel and remanded the matter with instructions to consider Rule 33.4(b)(3)(D). Further, unlike here, neither decision involved ongoing deficient advice regarding immigration consequences. We remand for an evidentiary hearing to permit the court to substantiate Petitioner's avowals and decide whether his untimely Rule 33.1(a) claim was excused under Rule 33.4(b)(3)(D).
¶12 The superior court's dismissal of Petitioner's notice of claims under Rules 33.1(e) and (h), on the other hand, was permissible. Claims asserting newly discovered evidence under Rule 33.1(e) or actual innocence under Rule 33.1(h) are not subject to the 90-day deadline applicable to Rule 33.1(a) claims, but notice of such claims must be filed "within a reasonable time after [the defendant discovers] the basis for the claim." Rule 33.4(b)(3)(B). The superior court may summarily dismiss notice of such claims "[i]f the notice does not provide sufficient reasons why the defendant did not raise the claim in a previous notice or petition, or in a timely manner." Rule 33.2(b)(1).
¶13 Here, the superior court dismissed Petitioner's notice of claims under Rules 33.1(e) and (h) because the allegations he presented to support those claims did not meet the standards for relief under the rules. The court's decision shows no abuse of discretion. Legal rulings in Petitioner's immigration proceedings do not constitute "newly discovered material facts" for purposes of Rule 33.1(e). And Rule 33.1(h) requires a defendant to "demonstrate[ ] by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find the defendant guilty of the offense beyond a reasonable doubt." Petitioner does not contend that his plea lacked an adequate factual basis, nor does he otherwise present facts showing his innocence by "clear and convincing evidence." His allegations merely establish that more than a year and a half after admitting he committed the amended charges, he decided to contest those admissions.
CONCLUSION
¶14 We remand for an evidentiary hearing to allow the superior court to consider whether Petitioner's notice of a Rule 33.1 claim was excusably late under Rule 33.4(b)(3)(D). We otherwise deny relief.