Opinion
No. 2 CA-CR 2014-0001-PR
05-16-2014
THE STATE OF ARIZONA, Respondent, v. RICARDO JOSE CARRILLO, Petitioner.
Ricardo Jose Carrillo, 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NOT FOR PUBLICATION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 Cochise County
No. CR201000554
The Honorable Karl D. Elledge, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Ricardo Jose Carrillo, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Petitioner Ricardo Carrillo was convicted after a jury trial of multiple counts of aggravated driving under the influence of an intoxicant (DUI), driving with a blood alcohol concentration of more than .08, and driving with a drug metabolite in his body. On appeal, this court vacated two of the counts and affirmed the remaining convictions and the sentences imposed. State v. Carrillo, No. 2 CA-CR 2011-0168 (memorandum decision filed Feb. 28, 2012). In his petition for review, Carrillo challenges the trial court's order summarily denying relief on claims he raised in a pro se petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., filed after counsel submitted a notice stating he had reviewed the record and found no issue to raise. We will not disturb the court's ruling unless it clearly abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We see no such abuse.
¶2 In his pro se petition for review, Carrillo contends the trial court erred in denying relief on a variety of claims he raised below, including that he was denied the right to a twelve rather than eight-person jury and that trial counsel was ineffective for failing to raise this issue. Additionally, he maintains the court erred in denying relief on his claim that trial counsel did not (1) challenge evidence that resulted from the seizure of a sample of his blood obtained at the hospital after the accident; or (2) argue Carrillo's Fifth Amendment rights and the prohibition against double punishment were violated when the court considered his prior DUI convictions as aggravating circumstances for sentencing purposes.
¶3 Carrillo also asserts the trial court erred in denying relief on his claims of ineffective assistance of appellate and Rule 32 counsel. He claims appellate counsel was ineffective in failing to (1) challenge on appeal the unconstitutional, warrantless seizure of his blood sample; (2) argue the state had failed to "notify or assist [him] in his right to collect exculpatory evidence," because it did not inform him of his right to obtain a separate blood sample for independent testing or assist him in obtaining that sample; (3) assert his Miranda rights were violated by the admission of involuntary statements he made; and (4) argue that admission of two officers' "testimony or opinions should have been suppressed or precluded." Carillo appears to argue Rule 32 counsel was ineffective for not asserting these claims on his behalf in this post-conviction proceeding.
Miranda v. Arizona, 384 U.S. 436 (1966).
¶4 To establish a claim of ineffective assistance of counsel entitling him to relief, Carrillo was required to show counsel's performance fell below prevailing professional standards and that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). "To avoid summary dismissal and achieve an evidentiary hearing on a post-conviction claim of ineffective assistance of counsel," a defendant must raise a colorable claim on both parts of the Strickland test. State v. Fillmore, 187 Ariz. 174, 180, 927 P.2d 1303, 1309 (App. 1996). And to warrant an evidentiary hearing, the claim "must consist of more than conclusory assertions." State v. Donald, 198 Ariz. 406, ¶ 21, 10 P.3d 1193, 1201 (App. 2000).
¶5 On the record before us, we cannot say the trial court abused its discretion in finding Carrillo had failed to "present a material fact that would entitle [him] to relief under Rule 32.1 . . . and that no purpose would be served by any further proceedings." Carrillo did not establish the performance of trial or appellate counsel had fallen below prevailing professional norms. Nor did he raise a colorable claim that either of these attorneys' performances had been prejudicial. And to the extent Carrillo raises as independent claims his having been tried by an eight-person jury, the state's alleged violation of its obligation to collect exculpatory evidence, and the admission of evidence obtained as a result of a search without a warrant or in violation of Miranda, those claims are precluded and were subject to summary dismissal. See Ariz. R. Crim. P. 32.2(a)(3).
¶6 With respect to Carrillo's claim that Rule 32 counsel was ineffective for failing to raise various claims in this post-conviction proceeding, Carrillo did not have the right to assert such a claim in the first instance. "[T]he non-pleading defendant has 'no constitutional right to counsel or effective assistance in post-conviction proceedings'; although [he] has the right to effective representation on appeal, he has no 'valid, substantive claim under Rule 32' for 'ineffective assistance on a prior [post-conviction relief] petition.'" Osterkamp v. Browning, 226 Ariz. 485, ¶ 18, 250 P.3d 551, 556 (App. 2011), quoting State v. Krum, 183 Ariz. 288, 292 & n. 5, 903 P.2d 596, 600 & n. 5 (1995) (alteration in Osterkamp); see also State v. Mata, 185 Ariz. 319, 336-37, 916 P.2d 1035, 1052-53 (1996).
¶7 The petition for review is granted but relief is denied.