Opinion
No. 2 CA-CR 2013-0477-PR
02-10-2014
THE STATE OF ARIZONA, Respondent, v. JULIO CESAR MORALES, Petitioner.
William G. Montgomery, Maricopa County Attorney By Susan L. Luder, Deputy County Attorney, Phoenix Counsel for Respondent Julio C. Morales, San Luis 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NOT FOR PUBLICATION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 Pinal County
No. S1100CR201001479
The Honorable Robert C. Brown, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Susan L. Luder, Deputy County Attorney, Phoenix
Counsel for Respondent
Julio C. Morales, San Luis
In Propria Persona
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred.
ECKERSTROM, Judge:
¶1 Julio Morales seeks review of the trial court's order denying after an evidentiary hearing his petition for post-conviction relief. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Morales has not met his burden of demonstrating such abuse here.
¶2 Morales pled guilty to possession of marijuana for sale and was sentenced to an aggravated, eight-year prison term. He sought post-conviction relief, claiming two of his trial attorneys had been ineffective in regards to plea negotiations. Specifically, he asserted his first attorney had incorrectly described the state's plea offer to him as providing for a 3.5-year stipulated sentence when, in fact, he could have received a lesser sentence pursuant to the plea. And he asserted his second attorney had been ineffective because he advised Morales to wait instead of accepting that plea offer and did not urge Morales to accept the offer upon learning it would be revoked by the new prosecutor assigned to the case. Morales claimed that his second attorney's advice to wait "was not based on any meritorious claim about the strength of his case" but instead was based on an unreasonable belief that the original prosecutor "was lazy and would eventually cave in to his request for a better plea offer."
¶3 The trial court denied relief after an evidentiary hearing. It concluded that Morales's first attorney had correctly advised him about the terms of two plea offers by the state—one calling for a two-year prison term and the other capped at 3.5 years—and that Morales had nonetheless decided to reject those
offers. As to Morales's second attorney, the court determined counsel had made a valid strategic decision to advise Morales to delay accepting the plea and wait for a better offer based "on his perceptions" of the first prosecutor. The court further noted that counsel had received no warning the offer would be withdrawn if Morales did not accept it by a certain time, but that it was "not unreasonable" for counsel to have expected such notice.
¶4 In his pro se petition for review, Morales asserts the trial court erred in concluding his second attorney had not fallen below prevailing professional norms, claiming that attorney had made an "unfulfillable promise" to obtain a better plea offer from the state despite knowing "that may not be the case."
¶5 The court, however, implicitly rejected this argument. The court found only that Morales's second attorney had told Morales and his girlfriend "he believed that he could get a better deal," not that counsel had unequivocally promised Morales a more favorable deal would become available. Furthermore, Morales has not provided this court with a transcript of the evidentiary hearing. Accordingly, we must presume it supports the trial court's ruling. See State v. Wilson, 179 Ariz. 17, 19 n.1, 875 P.2d 1322, 1324 n.1 (App. 1993); see also Ariz. R. Crim. P. 32.8(e) ("The court may, and shall upon request of a party within the time for filing a petition for review, order that a certified transcript of the evidentiary hearing be prepared.").
¶6 Morales next asserts the trial court erred in basing its ruling in part on a recorded telephone conversation between Morales and his mother in which they had agreed he should reject the state's plea offer. The court noted that conversation had occurred on August 8, 2011, when it actually occurred on August 11, 2010. But Morales has not explained how this apparent scrivener's error renders incorrect the court's ultimate conclusion that he was aware of the plea offer's terms and opted to reject it.
¶7 For the reasons stated, although review is granted, relief is denied.