Opinion
2 CA-CR 2024-0070-PR
07-31-2024
The State of Arizona, Respondent, v. Guillermo Ortega III, Petitioner.
Bradley D. Beauchamp, Gila County Attorney By Kayla Evans, Deputy County Attorney, Globe Counsel for Respondent. Guillermo Ortega III, Eloy In Propria Persona.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Gila County No. CR201300250 The Honorable Timothy M. Wright, Judge The Honorable David E. Wolak, Judge.
Bradley D. Beauchamp, Gila County Attorney By Kayla Evans, Deputy County Attorney, Globe Counsel for Respondent.
Guillermo Ortega III, Eloy In Propria Persona.
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Gard and Judge Kelly concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE.
¶1 Petitioner Guillermo Ortega III seeks review of the trial court's ruling summarily dismissing his successive 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. Bennett, 213 Ariz. 562, ¶ 17 (2006). Ortega has not met his burden of establishing such abuse here.
¶2 After a jury trial, Ortega was convicted of second-degree murder, attempted second-degree murder, and four counts of aggravated assault. The trial court sentenced him to concurrent and consecutive prison terms totaling thirty-eight years. We affirmed his convictions and sentences on appeal. State v. Ortega, No. 2 CA-CR 2014-0202 (Ariz. App. Sept. 3, 2015) (mem. decision). He previously sought and was denied post-conviction relief. State v. Ortega, No. 2 CA-CR 2018-0004-PR (Ariz. App. May 10, 2018) (mem. decision).
¶3 In August 2022, Ortega filed a notice of post-conviction relief, and appointed counsel thereafter filed a notice indicating that he had reviewed the record but was unable to find any "meritorious grounds" for relief. In December 2022, Ortega filed a pro se petition raising numerous claims, including that his indictment had been invalid, the prosecutor had committed misconduct, he had received ineffective assistance of counsel, there had been significant changes in the law that "would have probably overturned the judgment or sentence," and he was actually innocent. In the months that followed, Ortega filed numerous supplements and motions, including several requests for disclosure.
¶4 In February 2024, the trial court summarily dismissed Ortega's petition for post-conviction relief. Ortega filed a motion for rehearing, which the court also denied. This petition for review followed.
¶5 On review, Ortega again raises numerous claims, including that his indictment and conviction are "void" because the prosecutor committed misconduct by making an "unfair presentation to the grand jury." He also challenges the venue of the trial, the jury instructions, the trial judge as biased, and several evidentiary and procedural rulings. These arguments are based on constitutional claims that could have been raised on direct appeal. As such, they are precluded in this successive proceeding. See Ariz. R. Crim. P. 32.1(a), 32.2(a)(3).
To the extent Ortega raises new claims on review that were not asserted below, we do not address them. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (court of appeals does not address issues raised for first time in petition for review); see also Ariz. R. Crim. P. 32.16(c)(2)(B) (petition for review shall contain "issues the trial court decided that the defendant is presenting for appellate review"). We likewise do not address claims asserted below but not meaningfully raised on review. See Ariz. R. Crim. P. 32.16(c)(4) ("A party's failure to raise any issue that could be raised in the petition for review or cross-petition for review constitutes a waiver of appellate review of that issue.").
¶6 Likewise, Ortega's claims of ineffective assistance of trial and appellate counsel are precluded as waived because he could have raised them in his first Rule 32 proceeding. See Ariz. R. Crim. P. 32.1(a), 32.2(a)(3); see also State v. Petty, 225 Ariz. 369, ¶ 11 (App. 2010) (claim of ineffective assistance is cognizable under Rule 32.1(a)). And because Ortega is a non-pleading defendant, his claim of ineffective assistance of Rule 32 counsel is not colorable. See State v. Escareno-Meraz, 232 Ariz. 586, ¶ 4 (App. 2013) ("Non-pleading defendants . . . have no constitutional right to counsel in post-conviction proceedings; thus, despite the existence of state rules providing counsel, a claim that Rule 32 counsel was ineffective is not a cognizable ground for relief in a subsequent Rule 32 proceeding.").
¶7 To the extent Ortega alleges judicial bias in this current Rule 32 proceeding, he has not meaningfully developed the argument other than alleging that the proceeding was not "fair." See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (claim waived on review when petitioner fails to cite relevant authority and does not develop the argument in meaningful way); Ariz. R. Crim. P. 32.16(c)(4). And contrary to Ortega's suggestion otherwise, the trial court had jurisdiction to hear this matter. See State v. Payne, 223 Ariz. 555, ¶ 6 (App. 2009) (subject-matter jurisdiction is power to hear and determine particular type of case); Ariz. Const. art. VI, § 14(4) (superior court shall have original jurisdiction over felony cases); A.R.S. §§ 13-1104(C) (second-degree murder is felony), 13-1204(F) (aggravated assault is felony).
¶8 Ortega further contends that the trial court's February 2023 order accepting Rule 32 counsel's notice of no claims and relieving him of further obligation in the current proceeding was "forged." We disagree. That order, on a form that was presumably prepared by one of the attorneys, was signed by the then-assigned judge. And, in any event, Ortega has failed to establish any prejudice resulting from the order. See Ariz. R. Crim. P. 32.5(a) (appointment of counsel in successive Rule 32 proceeding discretionary). For all these reasons, the court did not err in summarily dismissing Ortega's successive petition for post-conviction relief. See Bennett, 213 Ariz. 562, ¶ 17.
¶9 Accordingly, we grant review but deny relief.