Opinion
No. 1 CA-CR 16-0299 PRPC
09-21-2017
STATE OF ARIZONA, Respondent, v. NEFTALI MENDOZA SOTO, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent Neftali Mendoza Soto, Florence Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Petition for Review from the Superior Court in Maricopa County
No. CR2008-168943-001
The Honorable Carolyn K. Passamonte, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent
Neftali Mendoza Soto, Florence
Petitioner
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Chief Judge Samuel A. Thumma joined.
JONES, Judge:
¶1 Neftali Mendoza Soto petitions this Court for review from the dismissal of his petition for post-conviction relief filed pursuant to Arizona Rule of Criminal Procedure 32. We have considered the petition for review and, for the reasons stated, grant review and deny relief.
¶2 A jury convicted Soto of two counts of aggravated driving while under the influence of intoxicating liquor or drugs arising out of events occurring in November 2008. After finding Soto had prior felony convictions, the trial court imposed concurrent ten-year prison terms. On direct appeal, this Court affirmed in all respects. See generally State v. Soto, 1 CA-CR 11-0686, 1 CA-CR 11-0687, 1 CA-CR 11-0688, 1 CA-CR 11-0694, 2013 WL 1286182 (Ariz. App. Mar. 28, 2013) (mem. decision). Thereafter, Soto sought post-conviction relief, raising various claims of ineffective assistance of counsel, trial errors, and challenges to this Court's decision affirming his convictions and sentences. The superior court summarily dismissed that petition. Soto filed a second petition for post-conviction relief, in which he challenged the lawfulness of his sentences. Finding Soto's claim precluded, the court summarily dismissed the second petition. This timely petition for review followed.
¶3 We will not disturb a superior court's ruling on a petition for post-conviction relief absent an abuse of discretion. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012) (citing State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006)). On review, the petitioner bears the burden of establishing error. See State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011). Soto has not sustained his burden here.
¶4 The superior court is authorized to summarily dismiss a petition for post-conviction relief if "the court, after identifying all precluded claims, determines that no remaining claim presents a material issue of fact or law which would entitle the defendant to relief . . . and that no purpose would be served by any further proceedings." Ariz. R. Crim.
P. 32.6(c). A claim is precluded when it "has been waived at trial, on appeal or in any previous collateral proceeding." Ariz. R. Crim. P. 32.2(a)(3). Soto could have raised the sentencing issue in his direct appeal, as well as his first petition for post-conviction relief. See Ariz. Rev. Stat. § 13-4033(A)(4) (2017) (authorizing a direct appeal from a sentence "on the grounds that it is illegal or excessive"); Ariz. R. Crim. P. 32.1(c) (authorizing a petition for post-conviction relief on the grounds "[t]he sentence imposed exceeded the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law"). Because he did not do so, the claim is precluded.
¶5 Soto did not raise any other claim for relief, and the superior court did nor err in summarily disposing of his petition. Accordingly, we grant review and deny relief.