Opinion
No. 1 CA-CR 13-0865 PRPC
07-23-2015
STATE OF ARIZONA, Respondent, v. LESLIE HOLLINGSWORTH, JR., Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent Leslie Hollingsworth, Jr., Kingman Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. CR2005-138947-001
The Honorable Margaret R. Mahoney, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent
Leslie Hollingsworth, Jr., Kingman
Petitioner
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Randall M. Howe and Judge Andrew W. Gould joined.
SWANN, Judge :
¶1 Leslie Hollingsworth, Jr., petitions this court for review of the dismissal of his petition for post-conviction relief. We have considered the petition for review and, for the reasons stated, grant review and deny relief.
¶2 Hollingsworth pled guilty to possession of narcotic drugs for sale with one prior felony conviction and was sentenced to 16 years' imprisonment. Hollingsworth now seeks review of the summary dismissal of his fourth successive petition for post-conviction relief. We have jurisdiction pursuant to Ariz. R. Crim. P. 32.9(c).
¶3 Hollingsworth argues the trial court could not consider his probation violation as an aggravating factor for sentencing purposes because the terms of his plea agreement prohibited the court from doing so. Similarly, Hollingsworth contends his trial counsel was ineffective when he failed to prevent the court from considering his probation violation as an aggravating factor, and when he failed to file a motion to suppress evidence seized in violation of the Fourth Amendment. Hollingsworth also argues that the prosecutor engaged in misconduct when he induced Hollingsworth to accept the plea by falsely promising him the state would not seek to use Hollingsworth's probation violation as an aggravating factor.
¶4 We deny relief. Hollingsworth raised or could have raised all of these issues in prior post-conviction relief proceedings. In both his second and third petitions for post-conviction relief, Hollingsworth argued that the court's consideration of his probation violation as an aggravating factor for sentencing purposes violated the terms of his plea agreement. In his third petition, Hollingsworth argued he was subjected to an unconstitutional search and that his counsel was ineffective when he failed to file a motion to suppress and when he failed to take measures to prevent the court from considering the probation violation as an aggravating factor. Any claim Hollingsworth raised or could have raised in an earlier post-conviction relief proceeding is precluded. Ariz. R. Crim. P. 32.2(a). And none of the exceptions in Rule 32.2(b) apply.
¶5 Hollingsworth also argues the recent United States Supreme Court decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), constitutes a significant change in the law that allows him to raise the claims of ineffective assistance of counsel in an untimely, successive post-conviction relief proceeding. Martinez held, "Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Martinez, 132 S.Ct. at 1320. This simply means Hollingsworth can seek habeas corpus relief in federal court based on ineffective assistance of trial counsel if he can first show either that he had no counsel in his first post-conviction relief proceeding, or that counsel in his first post-conviction relief proceeding was ineffective. Martinez does not require a state court to consider all untimely claims of ineffective assistance of counsel raised in post-conviction proceedings.
¶6 Finally, Hollingsworth claims he is entitled to raise the claims of ineffective assistance in an untimely, successive petition for post-conviction relief based on the Supreme Court decisions of Missouri v. Frye, 132 S.Ct. 1399 (2012), and Lafler v. Cooper, 132 S.Ct. 1376 (2012), both of which, Hollingsworth argues, constitute significant changes in the law. In both cases, the Supreme Court held a defendant has a right to effective assistance of counsel during the plea bargain process. Frye, 132 S.Ct. at 1407-1408; Lafler, 132 S.Ct. at 1384. In Frye, the court further held the right to effective assistance includes the right to have counsel communicate all formal, favorable plea offers to the defendant. Frye, 132 S.Ct. at 1408. Frye and Lafler, however, are not significant changes in the law as applied in Arizona. Arizona has long recognized that the right to effective assistance of counsel extends to the plea bargain process, and that counsel must adequately communicate all plea offers to the defendant. State v. Donald, 198 Ariz. 406, 413, ¶¶ 14-17 (App. 2000).
CONCLUSION
¶7 For the foregoing reasons, we grant review and deny relief.