Opinion
No. 2 CA-CR 2017-0427-PR
08-08-2018
THE STATE OF ARIZONA, Respondent, v. ABEL MICHAEL MERCADO, Petitioner.
COUNSEL Kent P. Volkmer, Pinal County Attorney By Geraldine L. Roll, Deputy County Attorney, Florence Counsel for Respondent Abel Mercado, 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pinal County
No. S1100CR201201657
The Honorable Lawrence M. Wharton, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Kent P. Volkmer, Pinal County Attorney
By Geraldine L. Roll, Deputy County Attorney, Florence
Counsel for Respondent
Abel Mercado, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred.
EPPICH, Judge:
¶1 Abel Mercado seeks review of the trial court's order summarily denying his successive and untimely petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Mercado has not shown such abuse here.
¶2 In 2013, Mercado pled guilty to child molestation and two counts of attempted child molestation. The trial court sentenced him to a twenty-four-year prison term for the first count and, for the remaining counts, suspended the imposition of sentence and placed Mercado on lifetime probation. In 2015, Mercado filed an untimely notice of post-conviction relief, followed by a pro se petition, which the trial court summarily dismissed. Mercado did not seek review of that ruling.
¶3 More than a year later, Mercado filed a second notice of post-conviction relief. The trial court appointed counsel, who filed a petition asserting that State v. Linares, 241 Ariz. 416 (App. 2017), constituted a significant change in the law rendering the forensic examination fee imposed at sentencing illegal, that May v. Ryan, 245 F. Supp. 3d 1145 (D. Ariz. 2017), constituted a significant change in the law but acknowledging it "does not require that [his] plea be vacated for a lack of factual basis," and that he had not been properly advised of the constitutional rights waived by his guilty plea. The trial court summarily denied relief, and this pro se petition for review followed.
¶4 On review, Mercado argues for the first time that he received ineffective assistance of counsel. We do not address claims not first raised below. See Ariz. R. Crim. P. 32.9(c)(4)(B)(ii) (petition for review must contain "a statement of issues the trial court decided that the defendant is presenting for appellate review"); see also State v. Ramirez, 126 Ariz. 464, 467-68 (App. 1980). And, to the extent Mercado reurges his claim that May constitutes a significant change in the law pursuant to Rule 32.1(g), he does not address his concession that it does not entitle him to relief, even were
that decision binding on this court. See Arpaio v. Figueroa, 229 Ariz. 444, ¶ 11 (App. 2012). Insofar as he again contends his plea advisement was insufficient, that claim cannot be raised in this untimely proceeding. Ariz. R. Crim. P. 32.4(a)(2)(A), (C).
¶5 Mercado also reasserts his claim that, pursuant to Linares, the forensic examination fee imposed at sentencing was improper. The court in Linares determined the prosecuting agency was not entitled to restitution for the costs of a forensic examination because they were incurred as part of its investigative function. 241 Ariz. 416, ¶¶ 7-13. But the fee imposed here is not restitution imposed under A.R.S. § 13-603(C): A.R.S. § 12-116.07 required the trial court to impose the assessment to defray the costs of forensic examinations. The ruling in Linares does not apply.
¶6 Last, Mercado argues for the first time that the state improperly "double counted the charge of child molestation" at sentencing, his probation terms violate the prohibition against double punishment and that he "should never [have] been considered a dangerous and repetitive offender." Again, we do not address claims not raised below. See Ariz. R. Crim. P. 32.9(c)(4)(B)(ii); see also Ramirez, 126 Ariz. at 467-68.
¶7 We grant review but deny relief.