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State v. Carpino

Court of Appeals of Arizona, Second Division

December 12, 2013

The State of Arizona, Respondent,
v.
Tony Michael Carpino, Petitioner.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Petition for Review from the Superior Court in Maricopa County No. CR2011102465001DT The Honorable Kristin Hoffman, Judge

William G. Montgomery, Maricopa County Attorney By Diane Meloche, Deputy County Attorney, Phoenix Counsel for Respondent

Bruce Peterson, Maricopa County Legal Advocate, Consuelo M. Ohanesian, Deputy Legal Advocate, Phoenix Counsel for Petitioner

Chief Judge Howard and Presiding Judge Vásquez concurred.

MEMORANDUM DECISION

MILLER, Judge

¶1 Tony Carpino petitions this court for review of the trial court's order summarily dismissing his of-right petition for postconviction 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). Carpino has not met his burden of demonstrating such abuse here.

¶2 Carpino pled guilty to second-degree burglary and misconduct involving weapons and was sentenced to an eight-year prison term for burglary, to be followed by a three-year probation term for weapons misconduct. Carpino filed a notice and petition for post-conviction relief, arguing in his petition that "the factual basis of [his] plea was unconstitutional" based on United States v. Jones, __ U.S.__, 132 S.Ct. 945 (2012), because law enforcement had placed a Global Positioning System (GPS) device on his vehicle without a warrant, thus violating his Fourth Amendment rights. He additionally claimed that his trial counsel had been ineffective in failing to investigate the GPS issue or advise him about the prospects of seeking to suppress the related evidence, and that he would not have entered the plea had he been aware of that course of action.

¶3 The trial court summarily denied relief. It determined Carpino's first claim was precluded because he had waived any Fourth Amendment challenge to the evidence against him by pleading guilty. See Ariz. R. Crim. P. 32.2(a)(3). It also rejected Carpino's claim of ineffective assistance of counsel. The court concluded counsel had not been deficient in not advising Carpino about a motion to suppress the GPS evidence because he had entered his plea more than six months before Jones was decided and counsel could not have been expected "to anticipate the future ruling of the United States Supreme Court, " particularly when "[t]he great weight of authority" prior to Jones would not have supported a motion to suppress.

¶4 On review, Carpino reurges his claims without addressing the bases for the trial court's ruling. He ignores the court's determination that he waived his Fourth Amendment claim by pleading guilty and, beyond insisting that the Court in Jones "did not rewrite the Fourth Amendment, " fails to address the court's determination that counsel had no reason to advise Carpino that he had a viable Fourth Amendment claim. Notably, he identifies no authority existing before Jones suggesting that the warrantless placement of a GPS tracking device on a vehicle violates the Fourth Amendment. He certainly has not identified any authority suggesting trial counsel fell below prevailing professional norms by failing to raise such a claim. See State v. Bennett, 213 Ariz. 562, 21, 146 P.3d 63, 68 (2006) (colorable claim of ineffective assistance of counsel requires showing "both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant"), citing Strickland v. Washington, 466 U.S. 668, 687 (1984).

¶5 We have reviewed the record and conclude the trial court correctly rejected Carpino's claims in a thorough and well-reasoned minute entry; we therefore adopt the court's ruling. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993).

¶6 Although review is granted, relief is denied.


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