Opinion
No. 2 CA-CR 2017-0195-PR
09-06-2017
THE STATE OF ARIZONA, Respondent, v. ALAN ORTIZ-PADILLA, Petitioner.
COUNSEL George E. Silva, Santa Cruz County Attorney By Kimberly Hunley, Deputy County Attorney, Nogales Counsel for Respondent Law Offices of Thomas E. Higgins P.L.L.C., Tucson By Thomas E. Higgins Counsel for Petitioner
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NOT FOR PUBLICATION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. 31.24. Petition for Review from the Superior Court in Santa Cruz County
No. S1200CR201300026
The Honorable Thomas Fink, Judge
REVIEW DENIED
COUNSEL George E. Silva, Santa Cruz County Attorney
By Kimberly Hunley, Deputy County Attorney, Nogales
Counsel for Respondent Law Offices of Thomas E. Higgins P.L.L.C., Tucson
By Thomas E. Higgins
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Eppich and Judge Howard concurred. VÁSQUEZ, Presiding Judge:
The Hon. Joseph W. Howard, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Alan Ortiz-Padilla seeks review of the trial court's summary dismissal of his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. For the following reasons, we deny review.
¶2 After a jury trial, Ortiz-Padilla was convicted of aggravated assault with a deadly weapon and weapons misconduct. The trial court sentenced him to concurrent prison terms, the longer of which is fifteen years. In a memorandum decision affirming his convictions and sentences on appeal, we found he had waived a number of issues, either by failing to preserve them at trial or failing to develop them on appeal. State v. Ortiz-Padilla, No. 2 CA-CR 2014-0188, ¶¶ 5-7, 8, 14, 20-22 (Ariz. App. May 28, 2015) (mem. decision). Ortiz-Padilla then sought post-conviction relief alleging trial and appellate counsel had been ineffective in allowing certain issues to be waived. He also asserted his trial counsel had been ineffective during plea proceedings by providing "misleading and/or inaccurate information concerning the range of penalties [he] was exposed to under the charges in the information."
The same attorney represented Ortiz-Padilla at trial and on appeal.
Ortiz-Padilla's petition suggests that he "detail[ed]" this claim in an affidavit filed in support of his petition. But in that affidavit, Ortiz-Padilla only generally asserted that, although he rejected the offer in open court, he nonetheless "did not fully understand all the possible ramifications of [his] rejection of the plea," including "the possible exposure [he] was facing" after trial, "because the plea was not fully explained to [him]."
¶3 In summarily denying post-conviction relief, the trial court reviewed each of these claims and explained that the findings of waiver in our decision on appeal, standing alone, did not establish ineffective assistance of counsel. Applying the standard required by Strickland v. Washington, 466 U.S. 668, 687-89, 693-94 (1984), the court observed that, with respect to each instance of alleged error by waiver, Ortiz-Padilla had failed to develop any argument that counsel had fallen below prevailing professional norms or to suggest a reasonable probability that, but for counsel's unprofessional errors or omissions, the result of the trial or appeal would have been different.
¶4 With respect to the claim of ineffective assistance of counsel during plea proceedings, the court similarly found Ortiz-Padilla had failed to identify specific failings by counsel or how different conduct "would have substantively added to the information the court imparted" during two Donald hearings. The court further concluded Ortiz-Padilla's affidavit was, in any event, insufficient to state a claim of prejudice, because he had failed to attest that he would have accepted the state's plea offer had counsel performed differently. This petition for review followed.
State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000). A Donald hearing is a pretrial proceeding at which a formal plea offer, and a defendant's rejection of it, "can be made part of the record" to "help ensure against late, frivolous, or fabricated claims" of ineffective assistance of counsel "after a trial leading to conviction with resulting harsh consequences." Missouri v. Frye, 566 U.S. 134, 146-47 (2012).
¶5 On review, Ortiz-Padilla does not challenge, or even address, the trial court's findings about the deficiencies in his petition for post-conviction relief. Instead, he has filed a near-verbatim recitation of the arguments he raised below, without regard for the court's analysis. His petition for review contains no description of the decision rendered by the court or any explanation of why he believes the court abused its discretion in rejecting his claims, elements of a petition for review required by the relevant rule. See Ariz. R. Crim. P. 32.9(c)(1) (petition for review to contain issues "decided by the trial court . . . which the defendant wishes to present to the appellate court for review" and "the reasons why the petition should be granted"); State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006) (trial court's summary denial of post-conviction relief reviewed for an abuse of discretion).
Ortiz-Padilla refers to the trial court's substantive rulings only once, when he asserts, without citation to authority, that the court's "finding that [Ortiz-Padilla] did not say he would have taken the plea agreement should not be the cut off point for the analysis of whether [he] received effective assistance of counsel on this issue." But see Donald, 198 Ariz. 406, ¶¶ 21-22, 10 P.3d at 1201 (noting defendant's "sworn statement[]" that he would have accepted the plea agreement but for inadequate advice of counsel; stating such claim "must consist of more than conclusory assertions and be supported by more than regret"); cf. Hill v. Lockhart, 474 U.S. 52, 60 (1985) (pleading defendant's failure to allege he would have insisted on trial but for counsel's misadvice rendered petition's allegations "insufficient" to satisfy prejudice requirement).
¶6 Ortiz-Padilla's failure to comply with Rule 32.9 justifies our summary refusal to grant review. See Ariz. R. Crim. P. 32.9(f) (describing appellate review under Rule 32.9 as discretionary); State v. French, 198 Ariz. 119,¶ 9, 7 P.3d 128, 131 (App. 2000) (summarily rejecting claims not complying with rules governing form and content of petitions for review), disapproved on other grounds by Stewart v. Smith, 202 Ariz. 446, ¶ 10, 46 P.3d 1067, 1071 (2002); cf. State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (insufficient argument waives claim on appellate review). Accordingly, review is denied.