Opinion
No. 2 CA-CR 2020-0149-PR
09-23-2020
THE STATE OF ARIZONA, Respondent, v. FRANK BONILLA, Petitioner.
Frank Bonilla, Mesa 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Maricopa County
No. CR2015107165001SE
The Honorable Cari A. Harrison, Judge
REVIEW GRANTED; RELIEF DENIED
Frank Bonilla, Mesa
In Propria Persona
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 Petitioner Frank Bonilla seeks review of the trial court's order dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court has abused its discretion. See State v. Bennett, 213 Ariz. 562, ¶ 17 (2006). Bonilla has not met his burden of establishing such abuse here.
Our supreme court amended the post-conviction relief rules, effective January 1, 2020. Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). Because it is neither infeasible nor works an injustice here, we cite to and apply the current version of the rules. State v. Mendoza, 249 Ariz. 180, n.1 (App. 2020) ("amendments apply to all cases pending on the effective date unless a court determines that 'applying the rule or amendment would be infeasible or work an injustice'" (quoting Ariz. Sup. Ct. Order R-19-0012)).
¶2 After a jury trial, Bonilla was convicted of possession of a dangerous drug (methamphetamine). The trial court sentenced him to six years' imprisonment. This court affirmed Bonilla's conviction and sentence on appeal. State v. Bonilla, No. 1 CA-CR16-0432 (Ariz. App. July 27, 2017) (mem. decision).
¶3 Thereafter, Bonilla initiated a proceeding for post-conviction relief, and appointed counsel subsequently filed a notice stating he could find no colorable issues to raise in a Rule 32 petition. Bonilla filed a pro se petition, but upon his request the trial court dismissed it with leave to refile. Several months later, Bonilla filed a motion to dismiss his conviction with prejudice, which the court treated as a petition for post-conviction relief and ordered him to refile in compliance with Rule 32.7(d). Bonilla filed his revised petition late, but the court nonetheless accepted it.
¶4 In his petition, Bonilla argued that "[t]he traffic stop that resulted in [his] conviction was illegal because it was not supported by probable cause" and "[t]he stop exceeded its scope and duration." He further asserted that the prosecutor and the police had committed "misconduct" and that the trial court had "committed a 'non-judicial act'" by misapplying court rules and "litigating on behalf of the prosecutor." In addition, Bonilla asserted various claims of ineffective assistance of trial, appellate, and Rule 32 counsel.
¶5 The trial court summarily dismissed Bonilla's petition. It determined that Bonilla's "substantive legal arguments regarding search and seizure" were precluded, as were any evidentiary issues or trial errors that were not raised at trial or on appeal. The court concluded that Bonilla had not "established any colorable claim for misconduct on the part of the prosecutor, the police officer, or the judges/courts" because his "assertions [were] conclusory in nature and the record [did] not support his claims." The court further determined that Bonilla had "failed to demonstrate by a preponderance of the evidence that his counsel's representation at either the trial court or appellate level fell below an objective standard of reasonableness," as required by Strickland v. Washington, 466 U.S. 668 (1984). In addition, the court explained that Bonilla's claims of ineffective assistance were not colorable because he had not established a "reasonable probability that the outcome of the case would have been different," pointing out that Bonilla had "dropped his jacket containing methamphetamine in full view of the arresting officers." Bonilla filed a motion for rehearing, requesting an evidentiary hearing; however, the court denied the request. This petition for review followed.
¶6 If the trial court determines that no claim raised in a petition for post-conviction relief "presents a material issue of fact or law that would entitle the defendant to relief under [Rule 32], the court must summarily dismiss the petition." Ariz. R. Crim. P. 32.11(a). Put another way, a defendant is entitled to an evidentiary hearing only if a material issue of fact exists. Ariz. R. Crim. P. 32.13(a).
¶7 On review, Bonilla again challenges the constitutionality of the traffic stop, arguing that the "[v]iolation of [the] Fourth Amendment protections requires reversal of [his] conviction." He contends that the reason for the stop was "pretextual" and that the length of the stop exceeded that necessary to address the traffic violation. He maintains the trial court "ignore[d] the [c]onstitutional violation" by "erroneously concluding the issue was not raised." However, the transcript that he points us to as proof that the issue was raised below does not support his position. That transcript is from the hearing on Bonilla's motions in limine to preclude the state from introducing evidence of a canine unit at the traffic stop and evidence that Bonilla was seen at a residence "known to have high-drug related activity." The record does not show that Bonilla filed any motion to suppress based on a purported Fourth Amendment violation. See State v. Lelevier, 116 Ariz. 37, 38 (1977) (motion to suppress challenges constitutionality of obtaining of evidence by state).
¶8 Rule 32.2(a)(3) precludes constitutional claims "waived at trial or on appeal." Cf. State v. Macias, ___ Ariz. ___, ¶ 20, 469 P.3d 472, 478 (App. 2020) (challenge to constitutionality of statutes waived when not raised at trial or on appeal). Because it was not raised at trial or on appeal, see Bonilla, No. 1 CA-CR 16-0432, ¶¶ 6, 9, any claim of error in regard to a purported Fourth Amendment violation is precluded. No abuse of discretion occurred.
¶9 Next, Bonilla contends that "[t]here was intentional misconduct," rendering his conviction a "miscarriage of justice." He maintains that "the judge, prosecutor, and defense counsel all acted in concert to conceal from the record and the jury the fact the entirety of the State's case was based upon a Constructional violation which fatally infected the entirety of the proceedings." In support of his argument, Bonilla claims his trial counsel "conspir[ed]" with the prosecutor and the trial court during the hearing on the motions in limine by "discuss[ing] at length how they would keep the pretextual nature of the traffic stop from the fact finder." However, Bonilla misapprehends the discussion. The parties were debating the preclusion of irrelevant, potentially prejudicial information, consistent with the rules of evidence, which presumably benefitted Bonilla. See Ariz. R. Evid. 401, 402, 403.
¶10 Bonilla's misconduct claim appears to arise under Rule 32.1(a), and, as such, it is precluded as waived because it was not raised at trial or on appeal. See Ariz. R. Crim. P. 32.2(a)(3). Even assuming the claim were not precluded, however, Bonilla has failed to explain why the trial court erred in finding this claim not colorable. See Ariz. R. Crim. P. 32.16(c)(2)(D) (petition for review must include reasons why appellate court should grant relief). Instead, his argument seems to depend upon the finding of a Fourth Amendment violation, which, as explained above, is precluded. And, as the trial court noted, conclusory assertions of misconduct are insufficient. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (claim waived where defendant cites no relevant authority and fails to develop argument in meaningful way). The court thus did not abuse its discretion in summarily dismissing this claim.
¶11 Last, Bonilla argues the trial court "misapplied the facts and law related to the ineffective assistance of counsel." He contends that this case is controlled by United States v. Cronic, 466 U.S. 648 (1984), not Strickland, because defense counsel "chose to act in the role of a second prosecutor." We disagree.
¶12 In Cronic, the Supreme Court determined that "if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." 466 U.S. at 659. While the Court concluded that such a denial had not occurred in Cronic, it nonetheless provided that the defendant could assert a claim of ineffective assistance of counsel "by pointing to specific errors." Id. at 666. Similarly, here, Bonilla was not denied the right to counsel. The record shows that Bonilla had trial counsel, who filed various pleadings and argued on Bonilla's behalf.
¶13 As the trial court correctly pointed out, Strickland is the standard for claims of ineffective assistance of counsel. To state a colorable claim, a defendant must establish that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant. Strickland, 466 U.S. at 687; see also Bennett, 213 Ariz. 562, ¶ 21. "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Bennett, 213 Ariz. 562, ¶ 21.
¶14 Bonilla provided no affidavits or other evidence in the trial court suggesting that his trial, appellate, or Rule 32 counsel's conduct fell below reasonable standards. See Ariz. R. Crim. P. 32.7(e) ("The defendant must attach to the petition any affidavits, records, or other evidence currently available to the defendant supporting the allegations in the petition."). His bald assertions that counsel erred are insufficient to sustain his burden of proof. See State v. Donald, 198 Ariz. 406, ¶ 21 (App. 2000) (to warrant evidentiary hearing, Rule 32 claim "must consist of more than conclusory assertions"). In addition, Bonilla has failed to show prejudice. The trial court therefore did not err in summarily dismissing these claims.
Bonilla asserts that he "repeatedly directed" his trial counsel to file a motion to suppress and a motion to dismiss but "counsel refused." He has attached to his petition a motion to suppress, which he claims he filed pro se but his counsel and the trial court "ignored." However, the motion does not bear a stamp showing that it was filed with the court, and it does not appear in the record. See Ariz. R. Crim. P. 32.16(d) (petition must contain specific references to record to support factual statements).
¶15 Accordingly, we grant review but deny relief.