Opinion
No. 2 CA-CR 2017-0292-PR
11-29-2017
THE STATE OF ARIZONA, Respondent, v. ROGER DARRYL WALDREP, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Andrea L. Kever, Deputy County Attorney, Phoenix Counsel for Respondent Roger Darryl Waldrep, 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NOT FOR PUBLICATION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. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR2013457772001SE
The Honorable Joan M. Sinclair, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Andrea L. Kever, Deputy County Attorney, Phoenix
Counsel for Respondent
Roger Darryl Waldrep, Kingman
In Propria Persona
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Judge Espinosa concurred.
BREARCLIFFE, Judge:
¶1 Petitioner Roger Waldrep 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). Waldrep has not shown such abuse here.
¶2 Under a plea agreement, Waldrep was convicted of child molestation and two counts of attempted child molestation. The trial court sentenced him to a seventeen-year prison term on the molestation count, and suspended the imposition of sentence and placed Waldrep on lifetime probation for the attempt counts, to begin on his release from prison.
¶3 Waldrep thereafter filed a notice of post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record and had been unable to find a colorable claim to raise in a Rule 32 proceeding. Waldrep filed a pro se supplemental petition that was a form petition with multiple issues checked and with others written out in list form. No true argument or facts were given in support of the claims. The trial court granted an additional extension of time in response to several pro se motions Waldrep had filed. Waldrep filed a "revised" petition, apparently asserting claims that he had received ineffective assistance of counsel, his plea had been involuntary, the "confrontation call" in his case had been obtained in violation of federal wiretap laws and was an involuntary confession, he was denied his right to represent himself, his indictment had been defective, his sentence was illegal, and various other claims of "[j]udicial" and constitutional error. The court corrected the amount of presentence incarceration credit to which Waldrep was entitled, but otherwise summarily denied relief and likewise denied Waldrep's later motion for rehearing.
¶4 On review, Waldrep again raises constitutional and federal statutory arguments in regard to the confrontation call, claims his indictment was invalid, asserts violations of his right to due process and right against "[d]ouble [p]unishments," argues he received ineffective assistance of counsel, claims his plea was involuntary, and maintains his sentence was illegal. Most of these complaints are about non-jurisdictional matters and "the entry of a plea waives all non-jurisdictional defects." State v. Quick, 177 Ariz. 314, 316 (App. 1993). Therefore most of Waldrep's claims are barred, and we do not address them. See Ariz. R. Crim. P. 32.2(a)(3).
¶5 This principle also bars claims of ineffective assistance of counsel, except those that relate to the validity of the plea. See Quick, 177 Ariz. at 316. Waldrep's claims do not bear on the validity of his plea, except his claim that the plea was coerced. Even so, at his change-of-plea hearing, Waldrep stated that he had gone "over the plea agreement fully" with his attorney and "underst[oo]d everything in the plea agreement." The trial court explained the rights he would be giving up and discussed the possible penalties for each count. Waldrep stated that no one had threatened him or promised him anything in regard to the plea. To state a colorable claim Waldrep needed to do more than simply contradict the record. See State v. Jenkins, 193 Ariz. 115, ¶ 15 (App. 1998) (defendant's claim he was unaware sentence "must be served without possibility of early release" not colorable when "directly contradicted by the record").
¶6 As to Waldrep's claims of sentencing error, much of his argument relies on federal laws relating to presentence reports. Those statutes do not apply to Arizona sentencings. He likewise cites federal law as to his claim that his crimes should be "treated as a [s]ingle [o]ffense" in sentencing. Waldrep does cite the similar Arizona law, A.R.S. § 13-116, but it does not apply to sentencings for crimes, like Waldrep's, which are dangerous crimes against children under A.R.S. § 13-705. See State v. Jones, 235 Ariz. 501, ¶¶ 9-11 (2014).
¶7 For these reasons, although we grant review, we deny relief.