Opinion
2 CA-CR 2022-0170-PR
02-23-2023
The State of Arizona, Respondent, v. Octaviano Torres-Nevarez, Petitioner.
Octaviano Torres-Nevarez, Kingman 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 Not For Publication See Ariz.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)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Maricopa County No. CR2010156887001SE The Honorable Michael Mandell, Judge
Octaviano Torres-Nevarez, Kingman In Propria Persona
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.
MEMORANDUM DECISION
ECKERSTROM, Judge
¶1 Petitioner Octaviano Torres-Nevarez seeks review of the trial court's order dismissing his petition for post-conviction relief, filed pursuant to Rule 33, 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. Ainsworth, 250 Ariz. 457, ¶ 1 (App. 2021) (quoting State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007)). Torres-Nevarez has not sustained his burden of establishing such abuse here.
¶2 Pursuant to a plea agreement entered in 2012, Torres-Nevarez was convicted of two counts of sexual conduct with a minor and two counts of attempted molestation of a child. The trial court sentenced him to consecutive prison terms totaling twenty-seven years on the sexual conduct counts. For the attempted molestation counts, the court suspended the imposition of sentence and placed Torres-Nevarez on concurrent lifetime terms of probation. He thereafter sought and was denied post-conviction relief at least four times, and this court denied review of the trial court's decision in two of those proceedings. State v. Torres-Nevarez, No. 1 CA-CR 17-0422 PRPC (Ariz. App. Jan. 16, 2018) (mem. decision); State v. Torres-Nevarez, No. 1 CA-CR 13-0875 PRPC (Ariz. App. June 9, 2015) (mem. decision).
¶3 In December 2021, Torres-Nevarez initiated another proceeding for post-conviction relief, arguing he had received ineffective assistance of counsel, his "right to [an] impartial jury" had been violated, his sentence had been "illegally" enhanced, and various other constitutional errors. The trial court summarily denied relief.
¶4 On review, Torres-Nevarez primarily argues the trial court abused its discretion in denying relief because it did so using "Boiler Plate" language. He fails, however, to cite any authority to suggest that the court's use of common language was improper. See Ariz. R. Crim. P. 33.16(c)(2)(D). Furthermore, as the trial court correctly determined, Torres-Nevarez's constitutional claims, raised pursuant to Rule 33.1(a), are precluded and untimely in this successive proceeding. See Ariz. R. Crim. P. 33.2(a); Ariz. R. Crim. P. 33.4(b)(3)(A), (C). Moreover, he failed to develop any meaningful argument as to many claims in his petition for post-conviction relief, and he has abandoned many of them on review. We therefore do not address them. See Ariz. R. Crim. P. 32.16(c)(2)(B), (D); State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (defendant waived claim when he did not "develop the argument in any meaningful way" on review).
¶5 Finally, to the extent his claims of sentencing error are made pursuant to Rule 33.1(c) or (g), and therefore not subject to preclusion, see Ariz. R. Crim. P. 33.2(b), such claims must be made "within a reasonable time after discovering the basis for the claim[s]," Ariz. R. Crim. P. 33.4(b)(3)(B). Torres-Nevarez has not addressed the trial court's conclusion that he failed to do so and has therefore waived any such argument. Stefanovich, 232 Ariz. 154, ¶ 16.
¶6 We grant the petition for review, but deny relief.