Opinion
No. 2 CA-CR 2014-0099-PR
06-09-2014
THE STATE OF ARIZONA, Respondent, v. ROSARIO PARRA HERNANDEZ, Petitioner.
William G. Montgomery, Maricopa County Attorney By Diane Meloche, Deputy County Attorney, Phoenix Counsel for Respondent The Hopkins Law Office, P.C., Tucson By Cedric Martin Hopkins Counsel for Petitioner
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NOT FOR PUBLICATION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 Maricopa County
No. CR1993091218
The Honorable William L. Brotherton Jr., Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Diane Meloche, Deputy County Attorney, Phoenix
Counsel for Respondent
The Hopkins Law Office, P.C., Tucson
By Cedric Martin Hopkins
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Vásquez and Judge Brammer concurred. KELLY, Presiding Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 After a jury trial in 1994, petitioner Rosario Hernandez was convicted of three counts of aggravated assault and four counts of kidnapping. This court affirmed the convictions and sentences on appeal. State v. Hernandez, No. 1 CA-CR 94-0280 (memorandum decision filed Sept. 5, 1995). In this petition for review, Hernandez challenges the trial court's order dismissing summarily what appears to be his fifth post-conviction proceeding. 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). Hernandez has not sustained his burden of demonstrating such abuse here.
Hernandez has had four previous post-conviction proceedings: one was a request for deoxyribonucleic acid testing, and the remaining three proceedings were pursuant to Rule 32.1, Ariz. R. Crim. P.
¶2 After reviewing Hernandez's notice of post-conviction proceeding, the trial court permitted him to file a petition because Hernandez stated he wished to assert the claim that trial counsel had been ineffective during plea negotiations based on Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399 (2012), which he contended was a significant change in the law. In the petition Hernandez subsequently filed, he asserted there had been a conflict of interest between George Gaziano, his trial counsel, and Robert Doyle, who had represented Hernandez in the first Rule 32 proceeding. Hernandez maintained Gaziano was employed by the Maricopa County Public Defender's office at the time he represented Hernandez and Doyle previously had worked for that office, although not at the time he represented Hernandez. Hernandez asserted he had not waived this conflict because he did not sign the requisite "informed consent" form and, therefore, Doyle should not have been permitted to represent him and violated ethical rules of the State Bar of Arizona by doing so. Hernandez suggested that because of this conflict, Doyle's judgment had been affected and he did not raise claims he otherwise might have raised regarding Gaziano's ineffectiveness.
¶3 Hernandez also contended trial counsel had been ineffective in advising him with respect to a plea offer the state had made before trial. He insisted he would have accepted the plea agreement had its provisions been explained to him thoroughly and properly, particularly those related to the length of the prison term offered and the amount of prison time he could be facing if convicted after a jury trial. Hernandez relied on Frye and Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376 (2012), arguing they constituted a significant change in the law as contemplated by Rule 32.1(g).
¶4 Although Hernandez argued in his petition that, at the very least, he had raised colorable claims warranting an evidentiary hearing, in his conclusion he requested that the trial court vacate his convictions and sentences and compel the state to offer the initial plea agreement. Alternatively, he requested that he be permitted to re-file the initial petition for post-conviction relief "without the preclusion aspect of the Rule based on the conflict of interest explained herein."
¶5 In its minute entry dated December 21, 2012, the trial court dismissed the petition, finding the state's response to Hernandez's petition "well-taken" and concluding that "no colorable claims or non-precluded claims for post-conviction relief" had been raised. On December 23, Hernandez filed a motion for rehearing which the court denied in a January 17, 2013 minute entry. Hernandez's petition for review followed.
It appears that the trial court entered an identical minute entry on December 28, 2012.
¶6 Hernandez first complains the trial court failed to provide its reasons for denying his petition for post-conviction relief. He then essentially reasserts the arguments he raised below and contends the court did not identify and thoroughly evaluate the claims he had raised in a manner that would permit this court to review and adopt its order. See State v. Whipple, 177 Ariz. 272, 273, 866 P.2d 1358, 1359 (1993). But regardless of whether we can adopt the court's ruling as our own, the court's minute entries and the state's response to the petition, which the court found "well-taken," provided at least generally and by inference, the bases for its dismissal of the petition without an evidentiary hearing and denial of the motion for rehearing. The court did not abuse its discretion.
¶7 Hernandez's claim that there had been a conflict between Gaziano and Doyle was raised in an untimely manner, see Ariz. R. Crim. P. 32.4(a), and was waived by his failure to raise it at the time Doyle was appointed or in the post-conviction proceedings that followed the initial post-conviction proceeding and before the current proceeding. The claim therefore is precluded. See Ariz. R. Crim. P. 32.2(a)(3).
¶8 Moreover, the claim appears to be more in the nature of a claim that Doyle's representation of Hernandez in the post-conviction proceeding had been deficient, a claim unavailable to Hernandez. Hernandez argued in his Rule 32 petition that he had demonstrated Doyle's judgment had been compromised because he, as a pro se litigant, was able to identify issues to raise in the post-conviction proceeding. But a non-pleading defendant like Hernandez "has 'no constitutional right to counsel or effective assistance in post-conviction proceedings'; although the non-pleading defendant has the right to effective representation on appeal, he has no 'valid, substantive claim under Rule 32' for 'ineffective assistance on a prior [post-conviction relief] petition.'" Osterkamp v. Browning, 226 Ariz. 485, ¶ 18, 250 P.3d 551, 556 (App. 2011) (alteration in Osterkamp), quoting State v. Krum, 183 Ariz. 288, 292 & n.5, 903 P.2d 596, 600 & n.5 (1995).
Hernandez maintains Doyle "reviewed Petitioner's file and determined that no credible issue existed to raise on Petitioner's behalf," requiring Hernandez to file a petition in propria persona. But the record reflects that Doyle was appointed after the attorney who was initially appointed to represent him was permitted to withdraw due to a potential conflict of interest. At the time that attorney was permitted to withdraw, he was with the Maricopa County Public Defender's office and Hernandez wanted to assert claims of ineffective assistance of his trial counsel, who also was working in the public defender's office. Thereafter Doyle filed a petition raising a claim of newly discovered evidence under Rule 32.1(e). The court found the claim colorable but denied Hernandez relief after an evidentiary hearing.
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¶9 The claim of ineffective assistance of trial counsel during plea negotiations is precluded. "[W]hen 'ineffective assistance of counsel claims are raised, or could have been raised, in a Rule 32 post-conviction relief proceeding, subsequent claims of ineffective assistance will be deemed waived and precluded.'" Swoopes, 216 Ariz. 390, ¶ 23, 166 P.3d at 952, quoting State v. Spreitz, 202 Ariz. 1, ¶ 4, 39 P.3d 525, 526 (2002) (emphasis omitted). Nor has Hernandez established his claim falls under Rule 32.1(g), and is not precluded by Rule 32.2. See Ariz. R. Crim. P. 32.2(b); see also 32.4(a).
¶10 In Frye and Lafler, the Supreme Court acknowledged a defendant has a right to effective representation by counsel during plea negotiations. See Frye, ___ U.S. at ___, 132 S. Ct. at 1407-08; Lafler, ___ U.S. at ___, 132 S. Ct. at 1384. But in Arizona a defendant is entitled to effective representation in the plea context. See, e.g., State v. Donald, 198 Ariz. 406, ¶¶ 9, 14, 10 P.3d 1193, 1198, 1200 (App. 2000). Hernandez therefore could have raised such a claim in his first proceeding and, accordingly, any claim of ineffective assistance of trial counsel is precluded. See Ariz. R. Crim. P. 32.1(g), 32.2(a)(3); State v. Poblete, 227 Ariz. 537, ¶ 8, 260 P.3d 1102, 1105 (App. 2011) (significant change in law "'requires some transformative event, a clear break from the past'"), quoting State v. Shrum, 220 Ariz. 115, ¶ 15, 203 P.3d 1175, 1178 (2009); see also State v. Escareno-Meraz, 232 Ariz. 586, 307 P.3d 1013 (App. 2013) (non-pleading defendants have no constitutional right to counsel in post-conviction proceedings and claim Rule 32 counsel ineffective therefore not cognizable basis for seeking relief in subsequent Rule 32 proceeding; rejecting argument based on Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012), that right to effective assistance of Rule 32 counsel should be extended to non-pleading defendants). ¶11 Because Hernandez has not sustained his burden of establishing the trial court abused its discretion, we grant review but deny relief.