Opinion
No. 2 CA-CR 2013-0421-PR
01-07-2014
THE STATE OF ARIZONA, Respondent, v. ALBERTO GERARDO DELGADO, Petitioner.
William G. Montgomery, Maricopa County Attorney By Diane Meloche, Deputy County Attorney, Phoenix Counsel for Respondent Alberto Delgado, 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NOT FOR PUBLICATION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 Maricopa County
No. CR2010005419002DT
The Honorable Kristin C. Hoffman, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Diane Meloche, Deputy County Attorney, Phoenix
Counsel for Respondent
Alberto Delgado, 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 Alberto Delgado petitions this court for review of the trial court's order summarily dismissing his petition for postconviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Delgado has not met his burden of demonstrating such abuse here.
¶2 Delgado was convicted after a jury trial of attempted second degree murder, aggravated assault, drive-by shooting, assisting a criminal street gang, theft of a means of transportation, and minor in possession of a firearm. He was sentenced to concurrent prison terms, the longest of which was twenty years. We affirmed his convictions and sentences on appeal. State v. Delgado, No. 1 CA-CR 10-0775 (memorandum decision filed Aug. 4, 2011). Delgado then filed a notice of post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but had been "unable to find a meritorious issue" to raise in a post-conviction proceeding.
¶3 Delgado filed a pro se petition for post-conviction relief, arguing his conviction was based on "perjured testimony" and the trial court's denial of a motion to continue violated his right to a fair trial because his counsel was left with inadequate time to prepare for trial. The state responded that Delgado's claims were precluded because he could have raised them on appeal but did not. In his reply, Delgado asserted that appellate counsel could not waive his "fundamental right[s]" and thus preclusion did not apply because his claims were of sufficient constitutional magnitude to require his knowing, voluntary, and intelligent waiver. The trial court concluded his claims were precluded pursuant to Rule 32.2(a)(3) without discussing whether they required a personal waiver.
¶4 On review, Delgado repeats his argument that his claims were of sufficient constitutional magnitude that preclusion does not apply absent personal waiver. Delgado is correct that "preclusion does not apply to claims involving certain constitutional rights unless the record shows that the defendant knowingly, voluntarily, and intelligently waived the right." State v. Espinosa, 200 Ariz. 503, ¶ 7, 29 P.3d 278, 280 (App. 2001). "If an asserted claim is of sufficient constitutional magnitude, the state must show that the defendant 'knowingly, voluntarily and intelligently' waived the claim." Ariz. R. Crim. P. 32.2(a)(3) cmt.
¶5 But, to avoid preclusion, Delgado must show not only that "a constitutional right is implicated," but that the right at issue is "one that can only be waived by a defendant personally," such as the right to a twelve-person jury, the right to jury trial, or the right to counsel. Swoopes, 216 Ariz. 390, ¶ 28, 166 P.3d at 954. The only constitutional right Delgado identifies, however, is his general right to a fair trial. "[T]he mere assertion by a defendant that his or her right to a fair trial has been violated is not a claim of sufficient constitutional magnitude for purposes of Rule 32.2." Id. Delgado cites no authority suggesting that the introduction of perjured testimony or the denial of a motion to continue implicate a constitutional right requiring personal waiver. Thus, he has not demonstrated that the trial court erred in finding these claims precluded pursuant to Rule 32.2(a)(3).
Although Delgado does not make this precise argument, his claim regarding the motion to continue at least arguably implicates his right to counsel, because he asserts the court's denial of the motion left his counsel unprepared for trial. But Delgado did not raise a claim of ineffective assistance of counsel, nor does he identify — either below or on review — any specific benefit that he would have gained had counsel been given more time to prepare. Thus, even if the claim was of sufficient constitutional magnitude to avoid preclusion, it nonetheless fails. Cf. State v. Bennett, 213 Ariz. 562, ¶ 25, 146 P.3d 63, 69 (2006) (defendant must show prejudice resulting from counsel's conduct).
¶6 Accordingly, although review is granted, relief is denied.