Opinion
No. 2 CA-CR 2019-0178-PR
12-12-2019
THE STATE OF ARIZONA, Respondent, v. JOSE CASTILLO-TORRES, Petitioner.
Jose Castillo-Torres, 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Pima County
No. CR20143665001
The Honorable Howard Fell, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
Jose Castillo-Torres, Florence
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Jose Castillo-Torres seeks review of the trial court's orders summarily dismissing his notice of post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., and his motion for rehearing. We will not disturb those orders unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Castillo-Torres has not shown such abuse here.
¶2 After a jury trial, Castillo-Torres was convicted of six counts of child molestation and sentenced to concurrent, seventeen-year prison terms for each count. We affirmed his convictions and sentences on appeal. State v. Castillo-Torres, No. 2 CA-CR 2016-0189 (Ariz. App. Feb. 2, 2017) (mem. decision). He sought and was denied post-conviction relief, and this court denied review. State v. Castillo-Torres, No. 2 CA-CR 2019-0009-PR (Ariz. App. Apr. 8, 2019) (mem. decision).
¶3 In May 2019, Castillo-Torres filed a notice of post-conviction relief asserting that recent amendments to A.R.S. §§ 13-1407 and 13-1410 constitute a significant change in the law and the versions of those statutes in effect at the time of his offenses were unconstitutional. The trial court summarily dismissed the notice, observing that Castillo-Torres had "raised the same arguments [in] his previous Rule 32 Petition." About a month later, Castillo-Torres filed a motion "respon[ding]" to the court's ruling, arguing he had attempted to raise the claims in the previous proceeding, but the court had denied his motion to amend, and asserting he was entitled to raise the claims in a successive proceeding under Rule 32.1(e), (f), and (g) due to the ineffective assistance of counsel. The trial court affirmed its earlier ruling, and this petition for review followed.
The legislature amended the child molestation statutes in 2018. See 2018 Ariz. Sess. Laws, ch. 266, §§ 1-3. The amendment eliminated the affirmative defense of lack of sexual motivation in former A.R.S. § 13-1407(E). Id. § 2. The legislature also included a definition of "[s]exual contact" in A.R.S. § 13-1401(A)(3)(b) that sexual contact "[d]oes not include direct or indirect touching or manipulating during caretaking responsibilities, or interactions with a minor or vulnerable adult that an objective, reasonable person would recognize as normal and reasonable under the circumstances." Id. § 1.
The trial court considered the merits of Castillo-Torres's motion, even though it was filed well outside the time limit of Rule 32.9(a)(1). That time limit is not jurisdictional. State v. Pope, 130 Ariz. 253, 256 (1981).
¶4 On review, Castillo-Torres first repeats his argument that he attempted to include these claims in his first proceeding, but the trial court "did not grant leave to amend," and he therefore may raise them in a subsequent proceeding. Castillo-Torres misapprehends the record—the court gave Castillo-Torres leave to amend in a ruling entered August 17, 2018. And, as we noted in our decision denying review, the trial court summarily dismissed those claims. Castillo-Torres, No. 2 CA-CR 2019-0009-PR, ¶ 3. The claims are thus barred by res judicata, having been ruled upon on the merits in the previous proceeding. See State v. Little, 87 Ariz. 295, 304 (1960) (doctrine of res judicata generally applies in criminal cases).
¶5 Even if Castillo-Torres's claims had not previously been raised and rejected, he is not entitled to relief. First, insofar as he argues he is permitted to raise his constitutional claim under Rule 32.1(f), that provision allows a non-pleading defendant to pursue an untimely appeal in some circumstances; it does not apply to a party's failure to raise a specific argument on appeal. Nor can he raise his claim under Rule 32.1(e); that rule does not apply because it does not apply to a claim of newly discovered ineffective assistance of counsel or trial error and is instead restricted to "newly discovered material facts" that "probably would . . . change[] the verdict." See State v. Serna, 167 Ariz. 373, 374 (1991) (describing five elements of cognizable newly discovered evidence claim). Finally, his claim that amendments to §§ 13-1401 and 13-1407 constitute a significant change in the law under Rule 32.1(g) is unavailing. "No statute is retroactive unless expressly declared therein." A.R.S. § 1-244. "Thus, absent a clear expression of retroactivity, a newly enacted law applies only prospectively." Garcia v. Browning, 214 Ariz. 250, ¶ 7 (2007). The statutory changes do not apply to Castillo-Torres.
¶6 We grant review but deny relief.