Opinion
No. 2 CA-CR 2018-0252-PR
04-08-2019
THE STATE OF ARIZONA, Respondent, v. FERNANDO HERNANDEZ RICHTER, Petitioner.
COUNSEL Ralph E. Ellinwood Attorney at Law PLLC, Tucson By Ralph E. Ellinwood 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pima County
No. CR20135144001
The Honorable Paul E. Tang, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Ralph E. Ellinwood Attorney at Law PLLC, Tucson
By Ralph E. Ellinwood
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Vásquez and Judge Brearcliffe concurred.
STARING, Presiding Judge:
¶1 Petitioner Fernando Richter 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). Richter has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Richter was convicted of three counts of kidnapping, domestic violence offenses and dangerous crimes against children; two counts of aggravated assault, domestic violence offenses and dangerous crimes against children; and three counts of child abuse, domestic violence offenses. The trial court sentenced him to enhanced, "slightly mitigated" and minimum, concurrent and consecutive terms of imprisonment totaling fifty-eight years. This court affirmed his convictions and sentences on appeal. State v. Richter, No. 2 CA-CR 2016-0112 (Ariz. App. Jan. 24, 2017) (mem. decision).
¶3 Richter thereafter sought post-conviction relief, arguing in his petition that he had been denied the right to counsel, that trial counsel had been ineffective in failing to seek a neuropsychological examination or further "advance a Guilty Except Insane defense" after the trial court denied such a defense, and that appellate counsel had been ineffective in filing a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he allegedly misstated some of the facts of the case. The trial court summarily denied relief in a thorough, well-reasoned minute entry.
¶4 On review, Richter essentially repeats his claims and argues the trial court abused its discretion in denying relief without a hearing. We cannot say the court abused its discretion in denying his petition for post-conviction relief. The court clearly identified the claims raised and resolved them correctly in its minute entry, which we adopt. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993) (when trial court has correctly ruled on issues raised "in a fashion that will allow any court in the future to understand the
resolution[, n]o useful purpose would be served by this court rehashing the trial court's correct ruling in a written decision"). We reject Richter's assertion on review that the court abused its discretion by denying his claim of ineffective assistance of trial counsel "[w]ithout factual analysis." Although Richter contends he was prejudiced by counsel's failure to seek a neuropsychological evaluation after the court rejected a guilty-except-insane defense the first time, he has not presented any evidence that such an exam would have resulted in evidence different from that before the court in the first instance. Thus, the court properly determined he had not established prejudice.
¶5 Additionally, we note that Richter's claim that his right to counsel was violated by the trial court's denial of his request for new counsel was precluded by his failure to raise it on appeal. See Ariz. R. Crim. P. 32.1, 32.2(a)(3). The court addressed that claim on the merits, and, as with the court's resolution of the other issues, we likewise adopt that portion of the court's ruling insofar as it pertains to Richter's claim that appellate counsel was ineffective in failing to raise the claim on appeal, which the trial court properly rejected.
¶6 For these reasons, we grant the petition for review, but deny relief.