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Not for Publication Rule 111, Rules of the Supreme Court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. CR2009155996001SE Honorable Steven P. Lynch, Judge Pro Tempore
William G. Montgomery, Maricopa County Attorney By E. Catherine Leisch Phoenix Attorneys for Respondent
VIRGINIA C. KELLY, Presiding Judge
¶1 In 2010, pursuant to a plea agreement, petitioner Benito Gil-Mendoza was convicted of aggravated assault and leaving the scene of a serious injury accident. Pursuant to a stipulated sentence, the trial court imposed an aggravated, ten-year prison term on the first count, to be followed by a five-year term of probation. Gil-Mendoza filed a pro-se notice of post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., and appointed Rule 32 counsel filed a notice advising the court he was unable to find any claims to raise in a petition for post-conviction relief. Gil-Mendoza subsequently filed a pro-se, supplemental petition for post-conviction relief asserting trial and Rule 32 counsel were ineffective, he was unlawfully induced to plead guilty, the court lacked jurisdiction to sentence him, and his sentence was illegal. The court summarily denied relief, and this petition for review followed. We will not disturb the court's ruling absent an abuse of discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here.
¶2 The record shows that, on August 24, 2009, Gil-Mendoza was driving a vehicle while under the influence of an intoxicant when he struck a bicycle rider, who suffered serious injuries as a result of the collision. Gil-Mendoza left the scene of the accident; he had a blood alcohol content of .228 when police officers located him five hours later, and he acknowledged he had consumed alcohol before "he accidentally hit a person on a bicycle." The terms of Gil-Mendoza's plea agreement provided a sentencing range of five to fifteen years; in the agreement, Gil-Mendoza stipulated to "be sentenced . . . for a term of 10 years, " and "waive[d] and [gave] up any and all motions, defenses, objections, or requests which he has made or raised, or could assert hereafter, to the court's entry of judgment against him and imposition of sentence upon him consistent with this agreement." Before accepting Gil-Mendoza's guilty plea at the change-of-plea hearing, the trial court reviewed the sentencing range with him, and confirmed that Gil-Mendoza understood he was "getting a stipulated sentence [and knew he was] going to receive a ten-year sentence."
¶3 Similarly, at sentencing the trial court stated, "Under the terms of the plea agreement . . . it's a stipulated term of ten years followed by a probation tail in Count 2, " and defense counsel likewise acknowledged Gil-Mendoza "knows he's stipulated [to] ten years, he's ready to take that." The court then found "an aggravated term is appropriate because of the permanent and significant brain damage that the victim has suffered, " and imposed "the stipulated aggravated term of 10 years" on the aggravated assault count.
¶4 On review, Gil-Mendoza asserts he is entitled to an evidentiary hearing and resentencing. He maintains trial counsel told him the victim had died and he would not have pled guilty if he had known the victim had survived. In an affidavit attached to his petition below, he asserts he would not have signed the plea agreement had he "known . . . that the victim was still alive." The record, however, clearly shows that Gil-Mendoza was aware the victim had not died. First, the indictment charged Gil-Mendoza with "caus[ing] a serious physical injury" to the victim, and the police report from the accident similarly requested that a complaint be filed against Gil-Mendoza for aggravated assault causing "disfigur[e]ment [and] broken bones." In addition, relying on a Mesa police report, the author of the presentence report described the victim's injuries, but said nothing to suggest the victim had died. And most importantly, in providing the factual basis at the change-of-plea hearing, defense counsel stated that the victim had sustained "[s]erious physical injury" from the accident, and explained "that the victim is now braindamaged and paralyzed." The court then asked Gil-Mendoza, "[D]o you agree with those facts, and is it your decision to plead guilty, " to which he responded, "Yes." Therefore, aside from his contention that trial counsel had told him the victim was dead, there is no evidence to support Gil-Mendoza's claims that he pled guilty based on the mistaken belief the victim had died and that he would not have done so had he known the victim was alive.
¶5 Gil-Mendoza also argues the trial court lacked jurisdiction to sentence him because it referred, in the sentencing minute entry, to statutes that had been repealed (A.R.S. §§ 13-604, 13-702.01). Here, both the sentencing range set forth in the plea agreement, to which the court referred at the change-of-plea hearing, and the actual sentence imposed, complied with A.R.S. § 13-704(A). To the extent we understand his claim, Gil-Mendoza asserts he would have received the presumptive 7.5-year sentence if the court had not relied on repealed statutes, and that he is, in fact, entitled to the presumptive sentence under § 13-704(A).
¶6 However, the plea agreement provided "[t]he crime carries a presumptive sentence of 7.5 years; a minimum sentence of 5 years; and a maximum sentence of 15 years, " dispelling any confusion that the stipulated ten-year sentence was the same as the presumptive term. And, as previously noted, Gil-Mendoza agreed to the stipulated ten-year prison term both in the written plea agreement, which he signed, and verbally at both the change-of-plea and sentencing hearings. Additionally, at the change-of-plea hearing the court asked if he had had enough time to "go over" the plea agreement with his attorney, to which he responded, "Yes." Accordingly, as set forth in his plea agreement, Gil-Mendoza knowingly and voluntarily waived the right to challenge his sentence, and he thus is precluded from post-conviction relief on this claim. See Ariz. R. Crim. P. 32.2(a)(3); see also State v. Espinosa, 200 Ariz. 503,
¶¶ 7, 10, 29 P.3d 278, 280-81 (App. 2001). t?In a related claim, Gil-Mendoza contends trial counsel was ineffective because she misinformed him the victim had died and she failed to challenge the trial court's reliance on sentencing statutes that had been repealed, rendering his guilty plea involuntary. He further asserts trial counsel coerced him to plead guilty with the threat that his wife, who owned the vehicle he had been driving when the accident occurred, would be "arrested and put in jail" if he did not plead guilty. Gil-Mendoza also maintains Rule 32 counsel was ineffective for failing to raise these claims on his behalf Assuming without deciding that Gil-Mendoza's claims of ineffective assistance of counsel relate directly to the validity of his guilty plea, see State v. Quick, 177 Ariz. 314, 316, 868 P.2d 327, 329 (App. 1993) (by entering guilty plea, defendant waives all nonjurisdictional defects, including claims of ineffective assistance of counsel, except as they relate to validity of plea), we address them.
¶8 To state a colorable claim of ineffective assistance of counsel, a petitioner must establish that counsel's performance fell below an objectively reasonable professional standard and that prejudice resulted from the deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985). Based on our conclusion that Gil-Mendoza's sentence was imposed legally pursuant to § 13-704(A), his claim that trial counsel was ineffective for failing to challenge the sentencing statutes necessarily fails. In addition, because Gil-Mendoza has not raised a colorable claim that he pled guilty based on his belief the victim had died, his claim of ineffective assistance of counsel related to that argument likewise fails. And, to the extent he is raising a claim of ineffective assistance of Rule 32 counsel, it is improper for Gil-Mendoza to raise such a claim in the same proceeding where he is represented in an advisory capacity by the same attorney whose conduct is at issue. Cf. State v. Bennett, 213 Ariz. 562, ¶¶ 14-16, 146 P.3d 63, 67 (2006) (claim of ineffective assistance of counsel may be raised only in successive petition for post-conviction relief if, in order to raise claim in earlier petition, counsel would have had to assert his or her own ineffectiveness).
¶9 Finding no abuse of discretion in the trial court's summary dismissal of Gil- Mendoza's petition for post-conviction relief, we grant the ...