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State v. Pianka

ARIZONA COURT OF APPEALS DIVISION TWO
Nov 10, 2014
No. 2 CA-CR 2014-0340-PR (Ariz. Ct. App. Nov. 10, 2014)

Opinion

No. 2 CA-CR 2014-0340-PR

11-10-2014

THE STATE OF ARIZONA, Respondent, v. VICTOR PIANKA, Petitioner.

Victor Pianka, Eloy 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NOT FOR PUBLICATION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 Maricopa County
No. CR2011160573001SE
The Honorable Karen A. Mullins, Judge

REVIEW GRANTED; RELIEF DENIED

Victor Pianka, Eloy
In Propria Persona

MEMORANDUM DECISION

Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred.

KELLY, Presiding Judge:

¶1 Victor Pianka seeks review of the trial court's order denying his untimely petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Pianka has not met his burden of demonstrating such abuse here.

¶2 In May 2012, Pianka pled guilty to possession of drug paraphernalia. The trial court suspended the imposition of sentence and placed Pianka on an eighteen-month term of probation. More than a year later, Pianka filed a notice of and petition for postconviction relief, in which he claimed counsel did not "investigate facts or [his] side of [the] story" or "share any strategy of defen[s]e" with him. He further asserted counsel had failed to "investigate the federal immigration consequences" of his guilty plea and "identify or argue for an alternative disposition" that would not include such consequences. The court summarily denied the petition, concluding Pianka's claims of ineffective assistance of counsel could not be raised in an untimely Rule 32 proceeding.

¶3 Pianka moved for reconsideration, arguing that he was entitled to raise his claim that counsel was ineffective for failing to adequately investigate immigration consequences pursuant to Rule 32.1(f) and (e) because he had not become aware of the immigration consequences of his conviction until recently. He also argued there had been no probable cause for his arrest. The trial court denied the motion for reconsideration, and this petition for review followed.

¶4 On review, Pianka restates his claims but does not address the trial court's conclusion that he is not permitted to raise those claims in an untimely post-conviction proceeding. We agree with the court's assessment. First, Pianka's claims of ineffective assistance of counsel fall under Rule 32.1(a). See State v. Petty, 225 Ariz. 369, ¶ 11, 238 P.3d 637, 641 (App. 2010). Consequently, he is barred from raising these claims in an untimely post-conviction proceeding like this one. See Ariz. R. Crim. P. 32.4. With respect to claims under Rule 32.1(a) through (c), "no exception to the preclusion or timeliness rules exists." State v. Rosales, 205 Ariz. 86, ¶ 11, 66 P.3d 1263, 1267 (App. 2003). And this court has rejected the notion that a defendant's later discovery that his or her conviction has immigration consequences permits an ineffective assistance claim to be raised in an untimely proceeding. See State v. Poblete, 227 Ariz. 537, ¶¶ 6-7, 260 P.3d 1102, 1104-05 (App. 2011).

¶5 For the reasons stated, although we grant review, we deny relief.


Summaries of

State v. Pianka

ARIZONA COURT OF APPEALS DIVISION TWO
Nov 10, 2014
No. 2 CA-CR 2014-0340-PR (Ariz. Ct. App. Nov. 10, 2014)
Case details for

State v. Pianka

Case Details

Full title:THE STATE OF ARIZONA, Respondent, v. VICTOR PIANKA, Petitioner.

Court:ARIZONA COURT OF APPEALS DIVISION TWO

Date published: Nov 10, 2014

Citations

No. 2 CA-CR 2014-0340-PR (Ariz. Ct. App. Nov. 10, 2014)