Opinion
2 CA-CR 2022-0147-PR
01-11-2023
The State of Arizona, Respondent, v. Gilbert Gonzales Olivas, Petitioner.
Gilbert G. Olivas, Florence In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20102517002 The Honorable Christopher C. Browning, Judge
Gilbert G. Olivas, Florence In Propria Persona
Vice Chief Judge Staring authored the decision of the Court, in which Presiding Judge Eppich and Judge Brearcliffe concurred.
MEMORANDUM DECISION
STARING, VICE CHIEF JUDGE:
¶1 Gilbert Olivas seeks review of the trial court's ruling summarily dismissing his "Motion Requesting Transcripts of Hearing and Court Order" ("Motion") and his notice of 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). Olivas has shown no such abuse here.
¶2 Olivas was convicted after a jury trial of two counts of aggravated assault with a deadly weapon and one count each of vehicle theft, armed robbery, and aggravated robbery. In 2012, the trial court imposed a combination of concurrent and consecutive prison terms totaling thirty-five years. Olivas was resentenced in 2014. The United States District Court subsequently granted Olivas habeas corpus relief and ordered the matter remanded to the trial court for resentencing on three counts, resulting in the imposition of an aggregate 21.25-year sentence in 2019. We affirmed that sentence on appeal, State v. Olivas, No. 2 CA-CR 2019-0254 (Ariz. App. June 11, 2020) (mem. decision), and subsequently granted review but denied relief in what appeared to be Olivas's fourth Rule 32 petition, State v. Olivas, No. 2 CA-CR 2022-0078-PR (Ariz. App. Aug. 4, 2022) (mem. decision).
The 2014 resentencing did not affect the length of Olivas's aggregate sentence.
¶3 On August 24, 2022, Olivas filed the Motion, requesting that the trial court "provide him with the transcripts of the hearing upon [his] claim that appointed counsel" in a prior Rule 32 proceeding was ineffective and arguing that the court's actions "coerced" him to proceed pro se. And, on September 2, 2022, Olivas filed a notice of post-conviction relief, asserting he was raising claims under Rule 32.1(a) and (e) and asking that counsel be appointed to represent him. He maintained that he had "just learn[ed]" of the court's "professional relationship with the state's material witness"-the police officer/victim in this case-and asked that he be provided with additional discovery in furtherance of that claim. He also asserted that he was "making a first initial review of ineffective assistance of trial counsel" under United States v. Cronic, 466 U.S. 648 (1984). In a September 12, 2022 ruling, the court denied both the Motion and notice of post-conviction relief. On October 11, 2022, Olivas filed a "Petition for Review for Special Action from Decision of Pima County Superior Court," which we treat as a petition for review.
On October 13, 2022, Olivas requested additional time to file a petition for review of the trial court's denial of his notice of post-conviction relief, pending this court's ruling on his "Petition for Review for Special Action." In an October 21, 2022 order, the trial court denied Olivas's request for an extension, noting it had not received the filings referred to in his extension request and he had "provided no legitimate basis for an extension of time" to file a delayed petition for review.
¶4 On review, Olivas essentially reasserts his claim that he is entitled to additional discovery to establish newly discovered evidence showing the "atmosphere of impropriety" in the relationship between the trial court and the officer/victim. In its ruling dismissing Olivas's Motion and notice, the court stated it had "no specific memory" of ever meeting the officer/victim and explained that it may have, at some point, "sign[ed] off" on a search warrant for that individual in his capacity as an officer, albeit unrelated to this case. The court added that it had no personal relationship with the officer/victim. The court also found "entirely meritless" Olivas's suggestion that, by permitting his prior attorney to appear telephonically, the court had "coerced" him to proceed pro se and further found "no legal basis for relief" in his most recent notice of post-conviction relief.
To the extent Olivas also argues he is entitled to the requested discovery based on Brady v. Maryland, 373 U.S. 83 (1963), an argument he did not raise in his motion or notice below, we do not consider that argument. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (appellate court does not consider issues raised for the first time in petition for review).
¶5 The Motion is the only discovery motion that is before us in this proceeding, and, apparently, it was the only such motion before the trial court when it ruled below. To the extent Olivas's challenge to the court's denial is properly before us on review, we conclude the court ruled correctly. Not only did Olivas fail to provide any meaningful reason why he was entitled to the discovery requested in his Motion, but other than obliquely referring to the court's "relationship" with the officer/victim, he did not provide any such reason in his notice. Nor did he comply with the Rule 32.6(b) procedure, which requires a request for discovery after filing a notice.
On review, Olivas lists additional pleadings he purportedly filed in 2022 related to a discovery request he had initiated in September 2021, pleadings he acknowledges did not "ma[k]e it to the court's docket." The September 2021 discovery motion is part of the record in a separate Rule 32 proceeding.
¶6 In addition, we find unpersuasive Olivas's attempt to obtain the materials, which he previously requested in his September 2021 discovery motion, by now characterizing them as newly discovered evidence, despite his acknowledgement that he has been trying to obtain the materials for more than one year. Finally, Olivas's petition for review does not meaningfully comply with Rule 32.16(c)(2), which requires that a petition for review contain "reasons why the appellate court should grant the petition, including citations to supporting legal authority, if known" and "specific references to the record."
¶7 Accordingly, we grant review but deny relief.