Opinion
No. 2 CA-CR 2017-0377-PR
02-21-2018
THE STATE OF ARIZONA, Respondent, v. EDUARDO RAFAEL BACA, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Adena J. Astrowsky, Deputy County Attorney, Phoenix Counsel for Respondent Eduardo Rafael Baca, Florence 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NOT FOR PUBLICATION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. CR2015110249001DT
The Honorable M. Scott McCoy, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Adena J. Astrowsky, Deputy County Attorney, Phoenix
Counsel for Respondent
Eduardo Rafael Baca, Florence
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred.
VÁSQUEZ, Presiding Judge:
¶1 Eduardo Baca seeks 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 order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). For the reasons stated below, we grant review, but we deny relief.
¶2 After entering a plea agreement, Baca was convicted of one count each of aggravated assault and possession of a dangerous drug and sentenced to a 7.5-year prison term to be followed by an eighteen-month term of probation. Baca filed a timely notice of post-conviction relief, and, after appointed counsel notified the trial court that he found no basis for Rule 32 relief, he filed a pro se petition alleging claims of ineffective assistance of counsel. Specifically, he alleged counsel had been ineffective in failing to subpoena a witness for a hearing on his pretrial motion to suppress evidence and in failing to inform him, before he pleaded guilty, that he could have appealed the judge's decision denying that motion.
¶3 In summarily dismissing the petition, the trial court observed that Baca had failed to identify testimony that would have been offered by the omitted witness or any reason that testimony probably would have changed the result of the hearing. And the court noted that Baca had been informed of his waiver of the right to appeal through his plea agreement and during his change-of-plea hearing. In his petition for review, Baca suggests the omitted witness would have contradicted a police officer's testimony that he had heard a "beeping noise" from his patrol vehicle that signaled Baca was the subject of an active arrest warrant and that Baca had run from apprehension. Although we question whether this additional information would have sufficed to state a colorable claim of prejudice required to show ineffective assistance of counsel, see State v. Bennett, 213 Ariz. 562, ¶ 21 (2006), we will not, in any event, consider issues raised for the first time on review, see State v. Ramirez, 126 Ariz. 464, 468 (App. 1980).
¶4 The trial court was also correct that Baca had been advised of his waiver of a direct appeal and stated in open court that he understood that waiver. A petitioner must do more than contradict what the record plainly shows. 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"). In addition, it appears from his petition for review that Baca has alleged counsel was ineffective in failing to inform him that he could have immediately appealed the court's denial of his motion to suppress, before he ever faced trial. But this is not the law. Compare A.R.S. § 13-4032 (state has right to appeal from grant of motion to suppress), with A.R.S. § 13-4033 (defendant has right to appeal from conviction, but not from denial of motion to suppress). Baca's attorney cannot have been ineffective for failing to offer incorrect legal advice. Cf. State v. Borbon, 146 Ariz. 392, 399 (1985) (holding counsel not ineffective "for failing to make an essentially futile request").
¶5 Accordingly, finding no abuse of discretion, we grant review, but deny relief.