Opinion
No. 2 CA-CR 2014-0310-PR
01-22-2015
THE STATE OF ARIZONA, Respondent, v. RICK MARTIN HEIDELBACH, Petitioner.
Rick M. Heidelbach, Buckeye 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NOT FOR PUBLICATION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. 31.24.
Petition for Review from the superior court in Pima county
No. CR20113667001
The Honorable Deborah Bernini, Judge
REVIEW GRANTED; RELIEF DENIED
Rick M. Heidelbach, Buckeye
In Propria Persona
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vasquez concurred. HOWARD, Judge:
¶1 Petitioner Rick Heidelbach seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Heidelbach has not sustained his burden of establishing such abuse here.
¶2 Pursuant to a plea agreement, Heidelbach was convicted of attempted armed robbery, two counts of armed robbery, and five counts of aggravated assault. The trial court sentenced him to presumptive, consecutive and concurrent, sentences totaling thirty-four years' imprisonment.
¶3 Heidelbach thereafter sought post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record and found "no legal issues of merit" to argue. In a pro se supplemental petition, however, Heidelbach argued the trial court had engaged in off-the-record "promises and hints of a lower sentence" to "pressure [him] to sign the plea" agreement. He also argued his plea agreement was illegal because it included multiple "charges from singular robberies" and a term that he "waives double jeopardy." He further asserted trial counsel was ineffective in failing to "explain to [him] what double jeopardy means," making "false promises that [he] would only receive a 12 year sentence," and not attempting "to get [him] a lesser plea" or to seek a mitigation hearing or hire a mitigation specialist. He claimed he had not been properly advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and that he was not competent to stand trial. And he maintained the court improperly aggravated and enhanced his sentence. Finally, he argued his Rule 32 counsel was ineffective in filing a notice that she had found no issues to argue. The court summarily denied relief.
¶4 On review, to the extent we understand his arguments, Heidelbach contends he should have been provided with additional record materials, again argues his rights pursuant to Miranda were violated, repeats his claim that trial counsel was ineffective in failing to raise the Miranda issue, and argues his Rule 32 counsel was ineffective.
Because Heidelbach has not discussed on review many of the arguments he made below, we do not address them. See Ariz. R. Crim. P. 32.9(c)(1) (petition for review shall contain "[t]he reasons why the petition should be granted" and "specific references to the record"); State v. Rodriguez, 227 Ariz. 58, n.4, 251 P.3d 1045, 1048 n.4 (App. 2010) (declining to address argument not raised in petition for review). And, although he mentions in his petition for review the trial court's ruling under Rule 11, Ariz. R. Crim. P., he makes no argument on that point, directing us only to the exhibits attached to his petition below. We therefore do not address that claim either. See Ariz. R. Crim. P. 32.9(c)(1) (petition for review must contain "reasons why the petition should be granted" and either appendix or "specific references to the record," but shall not "incorporate any document by reference, except the appendices"), (f) (appellate review under Rule 32.9 discretionary); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim.").
¶5 Heidelbach first argues on review that the trial court should have provided him with "[o]ne [t]rue [c]opy of the authentic record." At a change of plea hearing in April 2014, off-the-record proceedings were held, with Heidelbach's direct, personal agreement. Heidelbach contended below that during this off-the-record conversation, the court told him that "she is the most lenient judge in Pima County" and that he would not "have much time to do if you sign this plea." The existing transcript of that hearing is in the record before us, and Heidelbach has not suggested he lacks access to it. Rather, to the extent we understand his argument, he appears to contend the court should have ordered more produced. But, Heidelbach has not established that any other transcript or record of the specifically off-the-record proceeding exists. We therefore cannot say the court abused its discretion in denying his motion.
¶6 As to Heidelbach's Miranda arguments, the trial court properly dismissed his claim to the extent it is based directly on any alleged Miranda violation. As a pleading defendant, Heidelbach waived any such nonjurisdictional defect. See State v. Flewellen, 127 Ariz. 342, 345, 621 P.2d 29, 32 (1980) (pleading defendant waives all nonjurisdictional defects). We also agree with the court that Heidelbach failed to state a colorable claim of ineffective assistance of counsel based on counsel's failure to raise such a claim. The court correctly and clearly addressed that claim in its ruling, and we therefore adopt that portion of the court's decision. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993) (when trial court has correctly ruled on issues raised "in a fashion that will allow any court in the future to understand the resolution[, n]o useful purpose would be served by this court rehashing the trial court's correct ruling in a written decision").
¶7 Finally, as to his claims of ineffective assistance of Rule 32 counsel, as the trial court pointed out, Heidelbach was entitled to effective counsel in this proceeding. See State v. Petty, 225 Ariz. 369, ¶ 9, 238 P.3d 637, 640 (App. 2010). He must, however, present that claim in a second post-conviction proceeding, in which he is entitled to new counsel. See id. ¶¶ 13-14.
¶8 For these reasons, although we grant the petition for review, we deny relief.