Opinion
No. 2 CA-CR 2013-0341-PR
01-28-2014
THE STATE OF ARIZONA, Respondent, v. GUALBERTO LOPEZ SALAZAR, Petitioner.
Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Gualberto Lopez Salazar, San Luis 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NOT FOR PUBLICATION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 Pima County
No. CR061337
The Honorable K.C. Stanford, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent
Gualberto Lopez Salazar, San Luis
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Judge Eckerstrom and Judge Vasquez concurred. ESPINOSA, Judge:
¶1 Gualberto Salazar petitions this court for review of the trial court's order summarily dismissing his 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. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Salazar has not met his burden of demonstrating such abuse here.
¶2 Pursuant to a plea agreement, Salazar pled guilty to two counts of manslaughter. The trial court imposed an aggravated sentence of nineteen years on each count, to be served consecutively. Salazar subsequently sought and was denied post-conviction relief, and this court granted review, but denied relief on his petition for review of that decision in 2000. State v. Salazar, No. 2 CA-CR 1999-0489PR (memorandum decision filed Mar. 16, 2000).
¶3 In April 2013, Salazar initiated another proceeding for post-conviction relief, asserting claims of ineffective assistance of trial and Rule 32 counsel. And, apparently repeating claims raised in his first proceeding, Salazar asserted the trial court had committed sentencing error, the prosecutor had "breach[ed]" his plea agreement, and his plea was involuntary. The trial court summarily denied relief.
¶4 On review, Salazar recites law related to federal habeas corpus proceedings and repeats his claims that his plea was involuntary, that the prosecutor committed misconduct in relation to his plea, that the trial court committed sentencing error, and that he received ineffective assistance of trial and Rule 32 counsel. He maintains the court abused its discretion in denying his petition for post-conviction relief without a hearing.
In a "supplement[]" to his petition for review, Salazar also asserts for the first time that his plea agreement was invalid because there is no evidence in the record that he signed it. This court will not consider for the first time on review issues that have neither been presented to, nor ruled on by, the trial court. State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review shall contain "[t]he issues which were decided by the trial court and which the defendant wishes to present" for review).
¶5 As the trial court correctly pointed out, this is an untimely, successive proceeding for post-conviction relief. See Ariz. R. Crim. P. 32.4(a). Salazar's claims of sentencing error, involuntariness of his plea, and ineffective assistance of trial counsel are therefore precluded, either because they were not raised or were adjudicated on the merits in his previous proceeding. See Ariz. R. Crim. P. 32.2(a)(1), (3). Salazar's claim of ineffective assistance of Rule 32 counsel is not precluded in a second proceeding because he is a pleading defendant. See State v. Pruett, 185 Ariz. 128, 131, 912 P.2d 1357, 1360 (App. 1995). But such a claim must be raised in a timely proceeding. See Ariz. R. Crim. P. 32.2(b); Ariz. R. Crim. P. 32.4, cmt. 2000 amend. ("[T]he rule is amended to allow the pleading defendant thirty days within which to file a second notice if the defendant seeks to challenge counsel's effectiveness in the Rule 32 of-right proceeding."). As the trial court correctly noted, Salazar filed his second notice some twelve years after this court's decision in his first proceeding. The claim therefore cannot be raised. And although the petition for review is granted, relief is denied.