Opinion
No. 1 CA-CR 12-0522 PRPC
01-30-2014
STATE OF ARIZONA, Respondent, v. JOSHUA LOPEZ, Petitioner.
Maricopa County Attorney, Phoenix By Gerald R. Grant Office of the Attorney General, Phoenix By Joseph T. Maziarz Counsel for Respondent Joshua Lopez, Buckeye Pro Per Petitioner
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Petition for review from the Superior Court in Maricopa County
No. CR2005-008850-005
No. CR2006-006469-001
The Honorable Mark F. Aceto, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney, Phoenix
By Gerald R. Grant
Office of the Attorney General, Phoenix
By Joseph T. Maziarz
Counsel for Respondent
Joshua Lopez, Buckeye Pro Per Petitioner
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge Peter B. Swann and Judge Jon W. Thompson joined. GOULD, Judge:
¶1 Joshua Lopez has filed a petition for review challenging the trial court's dismissal of his post-conviction relief proceeding pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb the trial court's ruling absent a clear abuse of discretion. See State v. Bennett, 213 Ariz. 562, 566, ¶ 17, 146 P.3d 63, 67 (2006). Lopez has not sustained his burden of establishing such abuse here.
Background
¶2 As noted in the state's response, the procedural history of this case is somewhat confusing. Lopez was charged in another case, CR2004-023923-001 ("the 2004 case") with various offenses related to his stealing a car in December 2004; he entered into a plea agreement in April 2005, and he was sentenced to a fourteen-year prison term in May 2005. A week before Lopez was sentenced in that case, he was charged in Maricopa County CR2005-008850-005 ("the 2005 case"), with trafficking in stolen property, specifically, a Nissan Altima and a Jeep Cherokee, having sold the vehicles to undercover law enforcement officers in November 2004. In July 2005, pursuant to a plea agreement, Lopez pled guilty to second-degree trafficking in stolen property—the Nissan Altima, count fifteen of the indictment, as amended—with two historical prior felony convictions. He was sentenced on September 16, 2005, to a prison term of 11.25 years.
¶3 On March 7, 2006, Lopez was charged in Maricopa County CR2006-006469-001 ("the 2006 case") with three offenses that apparently arose out of the theft of the Nissan Altima, including kidnapping, a dangerous crime against children; armed robbery; and theft of a means of transportation. Lopez entered a plea agreement in the 2006 case and was sentenced to a seventeen-year prison term, to be served concurrently with the terms imposed in the 2004 and the 2005 cases.
¶4 Lopez filed an untimely notice of post-conviction relief in April 2011 in which he stated he intended to seek relief based on a claim of newly discovered evidence. The new evidence was a January 25, 2011 letter from his trial counsel which Lopez intended to use to support a claim that trial counsel had been ineffective because Lopez had believed by entering the plea in the 2005 case he had resolved all offenses that were the subject of the three police reports, including those arising out of the taking of the Nissan Altima. Lopez did not state why the notice was untimely, see Ariz. R. Crim. P. 32.2(b), other than that he had just received the letter, and he asserted there are no time limits for claims of ineffective assistance of counsel.
¶5 Although Lopez filed his notice under both cause numbers, the trial court summarily dismissed in separate orders; in the 2006 case on May 11, 2011], and in the 2005 case on May 12, 2011. Lopez filed a petition for review. While review was pending, Lopez filed a motion to supplement the record with trial counsel's affidavit in which counsel stated that she had assumed the plea agreement in the 2005 case would resolve all charges related to the theft of the Nissan Altima, and that she had "some recollection that I advised Mr. Lopez" that his plea agreement resolved all charges that might arise. This court denied the motion, noting that all evidence must first be presented to the trial court. State v. Lopez, 1 CA-CR 11-0388 PRPC (order filed August 26, 2011). Review was denied on February 26, 2013.
¶6 After this court denied his motion to supplement, on October 6, 2011, Lopez filed another post-conviction relief proceeding in both cases. He attached trial counsel's affidavit to the petition, again seeking relief based on newly discovered evidence. The next day the sentencing judge in the 2005 case summarily dismissed the post-conviction relief proceeding. Lopez then filed a petition for review. This court granted review, but denied relief;
In March of 2012, the judge in the 2006 case found that Lopez had raised a colorable claim, and ordered the state to respond. About two months later, the judge discovered the dismissal order in the 2005 case, noted that the cases should have been consolidated, vacated the dismissal order in the 2005 case, and consolidated the two cases. Apparently the judge was unaware that the dismissal order in the 2005 case was on review in this court.
[C]ounsel's affidavit, like the letter that had been attached to the first notice of post-conviction relief, does not constitute newly discovered evidence as contemplated by Rule 32.1(e). See State v. Saenz, 197 Ariz. 487, ¶ 13, 4 P.3d 1030, 1033 (App. 2000) ("Evidence is not newly discovered unless it was unknown to the trial court, the defendant, or counsel at the time of trial and neither the defendant nor counsel could have known about its existence by the exercise of due diligence."). At the very least, Lopez knew about the potential claim the affidavit relates to as soon as he was charged in the 2006 case. Indeed, in his affidavit, Lopez stated he had told counsel who represented him in 2006 he was surprised by the new charges and thought "all charges that might later arise from all three police reports" had been resolved by the plea agreement in the 2005 case. Nevertheless, he entered a plea in that case and did not immediately seek to set aside the 2005 conviction. That counsel memorialized her surprise by the 2006 charges in an affidavit she executed in August 2011 does not make the affidavit itself newly discovered evidence under the rule.State v. Lopez, 2 CA-CR 2012-0321 PR, at ¶ -9 (Ariz. App. Sep. 27, 2012) (mem. decision). As noted, while that case was pending, the trial court consolidated the lower court cases and ordered the state to respond. After the trial court considered the pleadings, the court found that the facts asserted by Lopez were not newly discovered because the facts "were long ago known to Defendant," and summarily dismissed the proceeding. Lopez then filed his petition for review.
Discussion
¶7 We need not decide whether the trial court had jurisdiction in the 2005 case while that case was on review because regardless, Lopez is not entitled to relief. For the reasons we articulated in State v. Lopez, 2 CA-CR 2012-0321 PR, counsel's affidavit was not newly discovered evidence. It merely supported the claim Lopez had presented in his previous post-conviction relief proceedings. Because this claim was raised in his earlier post-conviction relief proceeding, the claim in this proceeding was properly subject to summary dismissal as precluded. Any claim that could have been (or was) raised in an earlier post-conviction relief proceeding is precluded. Ariz. R. Crim. P. 32.2(a).
¶8 For these reasons, although we grant the petition for review, relief is denied.