Opinion
No. 1 CA-CR 13-0516 PRPC
06-02-2015
STATE OF ARIZONA, Respondent, v. JOSHUA LOPEZ, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent Joshua Lopez, Buckeye 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2005-008850-005 CR2006-006469-001
The Honorable Mark F. Aceto, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent
Joshua Lopez, Buckeye
Petitioner
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined.
KESSLER, Judge:
¶1 Joshua Lopez petitions for review of the trial court's summary dismissal of a petition for post-conviction relief filed pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. The petition for post-conviction relief was filed in connection with two cases: Maricopa County Superior Court Case No. CR2005-008850-005 (the "2005 case") and Maricopa County Superior Court Case No. CR2006-006469-001 (the "2006 case"). Lopez had previously commenced two prior post-conviction proceedings in regards to the 2005 case and four proceedings in regards to the 2006 case. We have considered his petition for review and, for the reasons stated, grant review but deny relief.
FACTUAL AND PROCEDURAL HISTORY
¶2 In May 2005, Lopez was indicted in the 2005 case on two counts of trafficking in stolen property based on his conduct in selling stolen vehicles, including a Nissan Altima, in November 2004. In July 2005, pursuant to a plea agreement, Lopez pled guilty to one count of second degree trafficking in stolen property with two historical prior felony convictions. Lopez was sentenced in September 2005, to an 11.25-year prison term.
¶3 In March 2006, Lopez was charged in the 2006 case with kidnapping, armed robbery, and theft of the means of transportation arising out of the theft of the Nissan Altima. Lopez pled guilty, pursuant to a plea agreement, to one count of armed robbery with one prior conviction and was sentenced in March 2007, to a 17-year prison term, to be served concurrently with the sentence imposed in the 2005 case.
¶4 In January 2008, Lopez filed a petition for post-conviction relief in the 2006 case. The trial court summarily dismissed the petition in February 2008, on the grounds that it was untimely and there was no explanation offered for the untimely filing or any facts presented that
would substantiate a claim that could be raised in an untimely post-conviction relief proceeding.
¶5 Lopez commenced a second post-conviction relief proceeding in the 2006 case in April 2010, in which he alleged claims of violation of double jeopardy, violation of plea agreement, and ineffective assistance of counsel. The notice of post-conviction relief was summarily dismissed by the trial court in April 2010, on the grounds that it was untimely and successive and failed to present facts showing why it was not filed in a timely manner or why the claims were not raised previously. A motion for reconsideration in which Lopez sought to elaborate on his claims was also denied.
¶6 In April 2011, Lopez filed a third petition for post-conviction relief in the 2006 case, which was a consolidated petition that was also filed as his first petition for post-conviction relief in the 2005 case. In this petition, Lopez alleged a claim of newly discovered evidence and supported it with a letter from his trial counsel in the 2005 case, which Lopez asserted established a claim of ineffective assistance of counsel based on his counsel's failure to include language in the plea agreement in the 2005 case that would have precluded the additional charges being filed in the 2006 case. The trial court summarily dismissed the petition in May 2011, ruling that the letter failed to establish newly discovered facts that would permit a claim of ineffective assistance of counsel in an untimely petition for post-conviction relief.
¶7 In October 2011, Lopez filed another consolidated petition for post-conviction relief in regards to the 2005 and 2006 cases, in which he attached an affidavit from his trial counsel in the 2005 case to support the same claims of newly discovered evidence of ineffective assistance of counsel alleged in the previous post-conviction proceeding. The trial court again summarily dismissed the petition, ruling that the substance of the affidavit did not constitute newly discovered facts that would support a claim of ineffective assistance of counsel in an untimely petition for post-conviction relief. Lopez petitioned for review of the trial court's ruling. This Court granted review, but denied relief. State v. Lopez, 2 CA-CR 2012-0321-PR, 2012 WL 4465245, at *3, ¶ 10 (Ariz. App. Sept. 27, 2012) (mem. decision).
¶8 In June 2013, Lopez filed another consolidated notice and petition for post-conviction relief in regards to the 2005 and 2006 cases, which is the subject of the petition for review presently before the Court. This was his third post-conviction relief proceeding commenced in the 2005
case and the fifth in the 2006 case. In this petition, Lopez raised the same claims of ineffective assistance of counsel as in his previous Rule 32 petition and further alleged that there had been significant changes in the law based on Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Martinez v. Ryan, 132 S. Ct. 1309 (2012) and that there was newly discovered evidence that would change his sentence. Noting the petition was untimely and successive as to both the 2005 and 2006 cases, the trial court summarily dismissed the petition, ruling that the claims of ineffective assistance of counsel could not be raised in untimely or successive petitions, that there had been no significant changes in the law applicable to his cases, and that Lopez failed to state a colorable claim of newly discovered evidence. Lopez filed a timely petition for review. We have jurisdiction pursuant to Arizona Revised Statutes section 13-4239(C) (2010). See also Ariz. R. Crim. P. 32.9(c).
DISCUSSION
¶9 We review the summary dismissal of a petition for post-conviction relief for abuse of discretion. See State v. Bennett, 213 Ariz. 562, 566, ¶ 17, 146 P.3d 63, 67 (2006). We may uphold the trial court's judgment on any basis supported by the record. State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987).
¶10 "Any notice not timely filed may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h)." Ariz. R. Crim. P. 32.4(a); see State v. Shrum, 220 Ariz. 115, 118, ¶ 13, 203 P.3d 1175, 1178 (2009) (noting "few exceptions" to "general rule of preclusion" for claims in untimely or successive petitions). Claims of ineffective assistance of counsel do not fall within Rule 32.1(d), (e), (f), (g) or (h) because they are "cognizable under Rule 32.1(a)." State v. Petty, 225 Ariz. 369, 373, ¶ 11, 238 P.3d 637, 641 (App. 2010). Thus, the trial court correctly ruled that Lopez could not raise claims of ineffective assistance of counsel in an untimely or successive post-conviction proceeding. Furthermore, the claims of ineffective assistance of counsel raised by Lopez are precluded because they were or could have been raised in his prior Rule 32 proceedings. Ariz. R. Crim. 32.2(a); see also State v. Spreitz, 202 Ariz. 1, 2, ¶ 4, 39 P.3d 525, 526 (2002) ("Our basic rule is that where 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.").
¶11 Pursuant to Arizona Rule of Criminal Procedure 32.1(g), a claim that there has been a significant change in the law generally may be raised in a successive proceeding. Ariz. R. Crim. P. 32.2(b). The decisions in Melendez-Diaz and Martinez, however, have no application that would
entitle Lopez to relief from his convictions or sentences. Melendez-Diaz addressed the admissibility of testimonial hearsay at trial under the confrontation clause. 557 U.S. at 329. By pleading guilty, however, Lopez waived all his rights with respect to having the State prove his guilt at trial. See State v. Murdaugh, 209 Ariz. 19, 27, ¶ 33, 97 P.3d 844, 852 (2004) ("The acceptance of a guilty plea waives the constitutionally protected rights to a jury trial and to confront one's accusers and the privilege against self-incrimination."). Martinez is likewise inapplicable to Lopez in this Rule 32 proceeding because it does not provide relief at the state court level. See State v. Escareno-Meraz, 232 Ariz. 586, 587, ¶¶ 5-6, 307 P.3d 1013, 1014 (App. 2013) (explaining Supreme Court "limited its decision" in Martinez "to the application of procedural default in federal habeas review;" accordingly, it does not affect consideration of state claims brought under Rule 32).
¶12 Pursuant to Arizona Rule of Criminal Procedure 32.1(e), a claim of newly discovered evidence may be raised in a successive proceeding. Ariz. R. Crim. P. 32.2(b). Here, however, the alleged newly discovered evidence of ineffective assistance of counsel consists of the same affidavit submitted in support of the claim of newly discovered evidence raised in the petition for post-conviction relief filed by Lopez in October 2011. Thus, this claim is precluded as it was adjudicated on the merits in a previous post-conviction proceeding. See Ariz. R. Crim. P. 32.2(a)(2); Ariz. R. Crim. P. 32.2(c) ("[A]ny court on review of the record may determine and hold that an issue is precluded."). Accordingly, there was no abuse of discretion by the trial court in summarily dismissing the petition for post-conviction relief.
CONCLUSION
¶13 For these reasons, we grant review, but deny relief.