Opinion
No. 2 CA-CR 2013-0529-PR
05-09-2014
THE STATE OF ARIZONA, Respondent, v. VICTOR HUGO HERNANDEZ, Petitioner.
Victor Hernandez, 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Pima County
Nos. CR20081514 and CR20081532
The Honorable Kathleen Quigley, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Victor Hernandez, Buckeye
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. KELLY, Presiding Judge:
¶1 Petitioner Victor Hernandez seeks review of the trial court's ruling dismissing his successive 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). We find no such abuse here.
¶2 Pursuant to a plea agreement, Hernandez was convicted in December 2008 of aggravated assault, robbery, and two counts of armed robbery, arising from two different matters. The trial court imposed aggravated and maximum, consecutive and concurrent sentences totaling forty-two years. Hernandez filed a pro se notice of post-conviction relief, and appointed counsel filed a notice informing the court he was unable to find any "tenable" issues to raise in a petition for post-conviction relief. Hernandez did not file a pro se petition, and the court dismissed his notice in October 2009.
¶3 Hernandez filed a successive pro se notice of post-conviction relief in July 2012, and appointed counsel notified the trial court that "no legal issues of merit exist." On April 18, 2013, Hernandez filed a pro se petition for post-conviction relief, followed by a supplemental petition filed four days later. The trial court summarily dismissed the April 18 petition in June 2013, and declined to address the additional claims raised in the supplemental petition based on Rule 32.6(d), which provides that "[a]fter the filing of a post-conviction relief petition, no amendments shall be permitted except by leave of court upon a showing of good cause." Upon Hernandez's filing of a motion for reconsideration and leave of court, and following the state's filing of a response to the supplemental petition, the court summarily dismissed the supplemental petition in October 2013. Hernandez then filed this petition for review from that ruling, asking that he be permitted to withdraw his guilty plea.
¶4 On review, Hernandez claims that trial counsel "grossly mischaracterized [his] possible sentence" and failed to advise him of the "possible amount of time that he could receive should he plead guilty," and he asserts that neither counsel nor the trial court advised him he could receive consecutive sentences. In its ruling dismissing the supplemental petition, which the court treated as a second petition for post-conviction relief, it noted Hernandez had "failed to allege that but for his counsel's error he would have insisted on going to trial," and further noted that, despite arguing counsel had failed to provide "information" necessary to render his plea voluntary, Hernandez "does not mention any specific information" that counsel failed to share with him. And, as the record shows and the court observed, counsel had explained the sentencing range to Hernandez, the range was set forth in the plea agreement, the court had explained the range in detail, and Hernandez had indicated he understood the range and the possibility he might receive consecutive sentences in one of the matters.
Although we agree with the trial court's dismissal of Hernandez's supplemental petition, we note that, because he did not file a pro se petition or otherwise raise the claims in his 2009 post-conviction proceeding, the claims are precluded. See Ariz. R. Crim. P. 32.2(a)(3); State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (appellate court will affirm trial court's ruling if result legally correct for any reason).
¶5 The trial court also found that, although it was possible "trial counsel [had] failed to advise [Hernandez] of the sentencing range if he were to be convicted at trial . . . because [Hernandez] was facing a maximum life sentence with the possibility of parole in CR20081532 and a maximum of 135 years in CR20081514," it was unlikely Hernandez would have elected to go to trial. The court thus correctly dismissed Hernandez's supplemental petition, finding he had not established the prejudice element of his claim of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984) (to establish claim of ineffective assistance of counsel warranting relief, defendant must show counsel's performance was deficient and prejudicial); see also State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985).
Although Hernandez suggests on review that he would not have received longer sentences at trial because his "priors were mostly committed in the same spree," he does not expressly dispute the trial court's reliance on the sentences he might have received, particularly had the court not dismissed several additional charges and allegations under the terms of the plea agreement.
¶6 Notably, Hernandez asserts for the first time on review that "counsel's failure to explain or correctly apply sentencing possibilities in advising [him] to plead guilty was prejudicial because [he] would not have accepted [the] plea had he known the true length of [the] sentences." However, because Hernandez did not make this assertion below, either in the affidavit he attached to his first Rule 32 petition or in his supplemental petition, we do not consider it on review. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980) (appellate court will not consider on review any issue on which trial court did not have opportunity to rule); see also Ariz. R. Crim. P. 32.9(c) (aggrieved party may petition appellate court "for review of the actions of the trial court"). Similarly, because it does not appear that Hernandez submitted below the undated affidavit he attached to his petition for review, we do not consider it. See id.
¶7 In addition, Hernandez argues on review that his plea was rendered involuntary by trial counsel's failure to advise him that he would be sentenced by a stricter judge than the one initially assigned to the case, a fact he claims he did not learn because counsel had waived his presence at several hearings by misrepresenting that he had refused transport to those hearings. However, because Hernandez did not raise this claim in his supplemental petition, the dismissal of which is the only ruling before us on review, we do not address it. See id. For all of these reasons, we grant review but deny relief.