Court of Appeals of Arizona, Second Division, Department B
Not for Publication Rule 111, Rules of the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF MARICOPA COUNTY Cause No. CR2009168045001DT Honorable James R. Morrow, Judge Pro Tempore
William G. Montgomery, Maricopa County Attorney By Andrea L. Kever Phoenix Attorneys for Respondent
Joy Bertrand Esq., LLC By Joy Bertrand and Shannon Peters Scottsdale Attorneys for Petitioner.
VIRGINIA C. KELLY, Presiding Judge
¶1 Miriam Martinez petitions this court for review of the trial court's order dismissing her untimely notice of and petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. 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). Martinez has not sustained her burden of establishing such abuse here.
¶2 In 2009, Martinez pled guilty to solicitation to commit forgery. The trial court suspended the imposition of sentence and placed Martinez on a two-year term of probation. In 2011, Martinez filed a notice of and petition for post-conviction relief, arguing that her failure to timely seek post-conviction relief was without fault on her part, see Ariz. R. Crim. P. 32.1(f); her plea was involuntary because the plea colloquy was insufficient; her counsel had rendered ineffective assistance pursuant to Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473 (2010), for failing to advise her of the immigration consequences of her plea; and Padilla applied retroactively to her case.
¶3 Although the trial court initially dismissed Martinez's notice, it granted her motion for rehearing and scheduled an evidentiary hearing on her claims. It also permitted the state, which previously had not responded to her petition, to file a response. In that response, the state argued, inter alia, that an evidentiary hearing was unnecessary in light of this court's decision in State v. Poblete, 227 Ariz. 537, 260 P.3d 1102 (App. 2011), determining Padilla was not retroactively applicable to defendants, like Martinez, whose conviction was final when Padilla was decided. In her reply to that response, Martinez additionally claimed she was entitled to relief pursuant to Rule 32.1(g) because Padilla constituted a significant change in the law, and further suggested Poblete had incorrectly determined that Padilla did not apply retroactively.
¶4 The trial court summarily denied relief, vacating the scheduled evidentiary hearing. Relying on Poblete, the court determined Martinez was not entitled to relief pursuant to Rule 32.1(g). It additionally rejected her claim under Rule 32.1(f),  concluding she had admitted she had been provided with information at her sentencing "concerning her post-conviction relief rights."
¶5 On review, Martinez first asserts the trial court erred because it permitted the state to file an untimely response to her petition for post-conviction relief. Rule 32.6(a) requires the state to file its response within forty-five days after the filing of the petition, and permits the court to grant a thirty-day extension "[o]n a showing of good cause, " with additional extensions permitted "only upon a showing of extraordinary circumstances." The state, however, did not request permission to file an untimely response until more than six months after Martinez's petition had been filed, and did not file a response to her motion for rehearing, as the trial court had ordered. Based on the record before us, it does not appear the court found good cause or extraordinary circumstances justifying the state's untimely filing.
¶6 Martinez asserts that "[g]ranting review and relief on this basis would "ensure that the State knows [it] cannot ignore the Court's order . . . and still benefit from such ignorance." But even if we agreed the trial court abused its discretion by permitting the state to file a response under these circumstances, Martinez does not identify, nor does the record reflect, any resulting prejudice. As we explain below, Martinez's claim on review fails as a matter of law. Thus, any error in permitting the state to respond clearly was harmless. Cf. State v. Pena, 209 Ariz. 503, ¶ 15, 104 P.3d 873, 877 (App. 2005) ("Error is harmless only if . . ., absent the error, the court would have reached the same result.").
¶7 Martinez next argues her petition "should not have been dismissed as untimely" because she brought a claim pursuant to Rule 32.1(g), thereby "excusing [her] delayed filing." Martinez misapprehends the trial court's ruling. Although it concluded correctly that her notice had been untimely filed, it denied her claim for relief under Rule 32.1(g) because it lacked merit, not because her notice was untimely filed.
¶8 Finally, relevant to her claim pursuant to Rule 32.1(g), Martinez argues that Padilla is retroactively applicable to her case. Rule 32.1(g) permits post-conviction relief based on a "significant change in the law that if determined to apply to defendant's case would probably overturn the defendant's conviction or sentence." And a claim pursuant to that rule may be raised in an untimely post-conviction proceeding. Ariz. R. Crim. P. 32.2(b). The Supreme Court determined in Padilla that counsel's failure to advise a client about the immigration consequences of a guilty plea constitutes deficient performance under Strickland v. Washington, 466 U.S. 668 (1984). 559 U.S. At __, 130 S.Ct. at 1483.
¶9 In Poblete, this court found that Padilla constituted a significant change in the law pursuant to Rule 32.1(g). 227 Ariz. 537, ¶ 10, 260 P.3d at 1105. We additionally concluded, however, that Padilla did not apply retroactively to defendants whose convictions were final before Padilla was decided on March 31, 2010. 227 Ariz. 437, ¶¶ 12, 16, 260 P.3d at 1105-07. We reasoned that, although the Court in Padilla applied the longstanding principles of Strickland, it established a new rule not subject to retroactive application because it, for the first time, applied those ...