Opinion
No. 2 CA-CR 2019-0003-PR
05-06-2019
THE STATE OF ARIZONA, Respondent, v. ABRAM PAUL OCHOA, Petitioner.
COUNSEL Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Appellate Bureau Chief, Florence Counsel for Respondent Abram P. Ochoa, Tucson 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NOT FOR PUBLICATION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 Pinal County
No. S1100CR201302288
The Honorable Joseph R. Georgini, Judge
REVIEW DENIED
COUNSEL
Kent P. Volkmer, Pinal County Attorney
By Thomas C. McDermott, Appellate Bureau Chief, Florence
Counsel for Respondent
Abram P. Ochoa, Tucson
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred.
EPPICH, Presiding Judge:
¶1 Petitioner Abram Ochoa seeks review of the trial court's order denying 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). Because Ochoa has not complied with Rule 32.9, we deny review.
¶2 After a jury trial, Ochoa was convicted of possession of methamphetamine for sale, possession of methamphetamine, possession of marijuana, and two counts of possession of drug paraphernalia. The trial court sentenced him to concurrent, presumptive prison terms, the longest of which is 15.75 years. This court affirmed Ochoa's convictions and sentences, amending the sentencing minute entry "to show count two as possession of a dangerous drug," rather than as possession for sale, and to eliminate certain flat-time provisions. State v. Ochoa, No. 2 CA-CR 2015-0190, ¶¶ 24, 25 (Ariz. App. Apr. 20, 2016) (mem. decision).
¶3 Ochoa thereafter sought post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record and found no colorable claims for relief under Rule 32. In a pro se, supplemental petition, however, Ochoa claimed he had received ineffective assistance of trial counsel. He argued counsel was ineffective because she failed to seek to suppress his interview with an investigating officer on voluntariness grounds, did not adequately cross-examine the investigating officer, failed to argue a "drug abuser rather than drug dealer theory" in closing argument, did not interview the officer before trial, did not argue his conviction was "cruel and unusual punishment," did not ask the court to "consider allowing [him] to continue with . . . change of plea proceedings in absentia," and did not argue his absence from his trial was involuntary based on his addiction. The trial court summarily denied relief.
¶4 Although Ochoa has filed what purports to be a petition for review of the trial court's ruling, it is nothing more than a verbatim copy of
his petition for post-conviction relief, with some changes made to the title and signature pages. Thus, he does not address the court's ruling that his claims are not colorable. His petition contains no description of the decision rendered by the court or any explanation of why he believes the court abused its discretion in rejecting his claims—all elements of a petition for review required by the relevant rule. See Ariz. R. Crim. P. 32.9(c)(4)(B)(ii), (iv) (petition for review must contain "a statement of issues the trial court decided that the defendant is presenting for appellate review" and "reasons why the appellate court should grant the petition"); see also State v. Bennett, 213 Ariz. 562, ¶ 17 (2006) (summary denial of post-conviction relief reviewed for abuse of discretion).
¶5 Ochoa's failure to comply with Rule 32.9 justifies our refusal to grant review. See Ariz. R. Crim. P. 32.9(f) (describing appellate review under Rule 32.9 as discretionary); State v. French, 198 Ariz. 119, ¶ 9 (App. 2000) (summarily rejecting claims incorporated by reference as non-compliant with Rule 32.9), disapproved on other grounds by Stewart v. Smith, 202 Ariz. 446, ¶ 10 (2002); cf. State v. Bolton, 182 Ariz. 290, 298 (1995) (insufficient argument waives claim on appellate review). Accordingly, we deny review of the trial court's order.