Opinion
2 CA-CR 2022-0115-PR
11-03-2022
The State of Arizona, Respondent, v. Netzahualcoyotl G. Ramos, Petitioner.
Netzahualcoyotl Ramos, San Luis 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. CR20081263001 The Honorable Howard Fell, Judge Pro Tempore
Netzahualcoyotl Ramos, San Luis 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 Petitioner Netzahualcoyotl Ramos seeks review of the trial court's order dismissing his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007). Ramos has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Ramos was convicted of two counts of first-degree felony murder, and the trial court imposed consecutive, presumptive terms of "25 years to Life." This court affirmed his convictions and sentences on appeal. State v. Ramos, No. 2 CA-CR 2009-0062 (Ariz. App. Mar. 19, 2010) (mem. decision).
¶3 Ramos apparently sought and was denied post-conviction relief in four separate proceedings; he did not seek review of those decisions. In August 2021, Ramos again sought post-conviction relief, arguing in his petition that newly discovered material facts entitled him to relief. Specifically, he argued that a decision by the United States District Court, of which he had recently learned, supported a claim that he had received ineffective assistance of counsel. Ramos alleged that like the defendant in the federal case, Viramontes v. Attorney General, No. CV-16-00151-TUC-RM (D. Ariz. Mar. 16, 2021) (order), his counsel had erroneously advised him that he would be eligible for parole if he were convicted after a jury trial, as a result of which he rejected a plea offer from the state. The trial court summarily dismissed the petition, concluding that nothing in Viramontes entitled Ramos to relief and that the claim was, in any event, precluded in this successive proceeding.
¶4 On review, Ramos argues the trial court abused its discretion in rejecting his claim of ineffective assistance of counsel and "[a]t a minimum . . . should have granted an evidentiary hearing." We agree, however, with the trial court that Ramos's claim is appropriately characterized as one of ineffective assistance of counsel pursuant to Rule 32.1(a). Such a claim is untimely and precluded in this successive proceeding. See Ariz. R. Crim. P. 32.2(a)(3), 32.4(b)(3)(A); see also State v. Spreitz, 202 Ariz. 1, ¶ 4 (2002).
To the extent Ramos argues he was entitled to an evidentiary hearing to determine questions of fact raised in his previous Rule 32 proceedings as to whether a plea offer had been made, he is incorrect. The trial court dismissed his previous two proceedings in 2015 and 2016, and the time to petition for review of those decisions has long passed. See Ariz. R. Crim. P. 32.16(a); State v. Chavez, 123 Ariz. 538, 539 (App. 1979) (defendant cannot collaterally attack an underlying order that he failed to timely challenge).
¶5 Further, insofar as Ramos presents his claim as one of newly discovered material facts, this court has previously explained that an attorney's failure to give accurate advice or information necessary to allow a defendant to make an informed decision whether to accept a plea agreement constitutes deficient performance. State v. Donald, 198 Ariz. 406, ¶ 16 (App. 2000). In addition, we have clarified that such an error may be prejudicial to the defendant if he can show a reasonable probability that, but for the deficient advice, he would have accepted the plea agreement. Id. ¶¶ 20, 22. Thus, the general proposition for which Ramos relies on Viramontes existed before, and Ramos had reason to know he could have raised his claim, but he did not do so.
¶6 Moreover, one of the requirements of newly discovered material facts under Rule 32.1(e) is that "the evidence must appear on its face to have existed at the time of trial but be discovered after trial." State v. Amaral, 239 Ariz. 217, ¶ 9 (2016). The Arizona district court's recent Viramontes decision did not exist at the time of Ramos's trial. Therefore, even if it were an evidentiary fact rather than a non-binding ruling in another case, it cannot comprise a claim of newly discovered material facts. Thus, the trial court did not abuse its discretion in dismissing Ramos's petition for post-conviction relief.
¶7 We grant the petition for review but deny relief.