Opinion
2 CA-CR 2024-0059-PR
08-01-2024
The State of Arizona, Respondent, v. Braden Xavier Archer, Petitioner.
Braden Xavier Archer, Tempe In Propria Persona.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2018100639001DT The Honorable Mark H. Brain, Judge.
Braden Xavier Archer, Tempe In Propria Persona.
Judge Kelly authored the decision of the Court, in which Presiding Judge O'Neil and Judge Vasquez concurred.
MEMORANDUM DECISION
KELLY, JUDGE.
¶1 Petitioner Braden Archer seeks review of the superior court's ruling summarily dismissing his petition for post-conviction relief filed pursuant to Rule 33, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). Archer has not met his burden of establishing such abuse here.
¶2 Pursuant to a plea agreement, Archer was convicted of two counts of aggravated assault. The superior court sentenced him to concurrent prison terms of 3.5 years each. Thereafter, Archer initiated a proceeding for post-conviction relief, and appointed counsel filed a notice that she had reviewed the record but was "unable to find any claims for relief." Archer then filed a pro se petition, which the court dismissed in June 2020. Shortly thereafter, Archer filed a motion for rehearing.
¶3 In August 2023, more than three years later, Archer sought to amend his Rule 33 petition, alleging a claim of newly discovered evidence. The superior court denied his request to amend but nonetheless assumed the filing was a second Rule 33 proceeding and denied relief. Archer then filed a motion requesting that the court rule on his motion for rehearing as to the June 2020 dismissal. In November 2023, the court denied the motion for rehearing, observing that the motion "was never presented to the Court when it was filed." This petition for review followed.
This court dismissed Archer's initial petition for review as untimely, but the superior court subsequently granted Archer an extension of time in which to file his petition.
¶4 On review, Archer first seems to challenge the validity of his plea agreement, suggesting that the only reason he signed it was because the superior court had indicated it "was not going to give a self-defense instruction at trial." But Archer misconstrues the record. See State v. Donald, 198 Ariz. 406, ¶ 17 (App. 2000) (to state colorable claim for relief, defendant must "provide specific factual allegations that, if true, would entitle him to relief"). At the change of plea hearing, the court indicated that it would not give a self-defense instruction as part of the preliminary instructions, but it nonetheless observed that Archer could argue for inclusion of a self-defense instruction as part of the final instructions. Moreover, Archer stated at the change of plea hearing that he was entering into the plea agreement of his "own freewill . . . even though [he didn't] like it very much." The record thus belies Archer's claim, and the court did not err in rejecting it. See Martinez, 226 Ariz. 464, ¶ 6.
¶5 Archer also challenges a police report, grand jury testimony, and an "unlawful" withdrawal from his first trial counsel. In addition, he asserts that he received ineffective assistance from his second trial counsel. However, a pleading defendant, like Archer, "waives the right to assert on review all non-jurisdictional defenses, including deprivations of constitutional rights." State v. Chavez, 243 Ariz. 313, ¶ 14 (App. 2017); see also State v. Reed, 121 Ariz. 547, 548 (App. 1979). This waiver includes Archer's claims of ineffective assistance of trial counsel, none of which relate to the validity of his plea. See State v. Leyva, 241 Ariz. 521, ¶ 18 (App. 2017). The superior court therefore did not err in summarily rejecting these claims. See Martinez, 226 Ariz. 464, ¶ 6.
Archer also alleges a claim of judicial misconduct. But it does not appear that this claim was raised below. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (court of appeals does not address issues raised for first time in petition for review); see also Ariz. R. Crim. P. 33.16(c)(2)(B) (petition for review must contain "issues the trial court decided that the defendant is presenting for appellate review"). In any event, he fails to meaningfully support his argument on review. See Ariz. R. Crim. P 33.16(c)(2)(D) (petition for review must include "reasons why the appellate court should grant the petition"); State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (claim waived on review when defendant does not develop argument in meaningful way).
¶6 Accordingly, we grant review but deny relief.