Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR 2010-140334-001 The Honorable Sherry K. Stephens, Judge.
Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent.
Gerardo Andrada-Pastrano, Florence Petitioner.
Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Maurice Portley joined.
¶1 Petitioner, Gerardo Edmundo Andrada-Pastrano, petitions this court for review from the dismissal of his petition for post-conviction relief. We have considered the petition for review and, for the reasons stated below, grant review and deny relief.
¶2 Petitioner was convicted of a sexual offense he committed in 1991 (the 1991 case). This conviction required Petitioner to register as a sex offender. In 2010, the State charged Petitioner with two counts of failure to register as a sex offender. Petitioner ultimately pled guilty to a class six felony, presentment of a false instrument for filing, and the trial court placed him on three years' probation. Petitioner filed a pro se petition for post-conviction relief of-right after his counsel found no colorable claims. The trial court found Petitioner presented colorable claims for relief, however, and held an evidentiary hearing. The court denied the petition for post-conviction relief at the conclusion of the hearing and Petitioner now seeks review. We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).
¶3 In his petition for review, Petitioner argues the factual basis to support his plea was insufficient; his trial counsel was ineffective; the trial court erred when it refused to appoint an investigator to assist Petitioner; he has newly discovered evidence regarding the 1991 case and the court improperly limited the scope of the evidentiary hearing. We will affirm the trial court's ruling if it is based on substantial evidence. See State v. Sasak, 178 Ariz. 182, 186 (App. 1993).
¶4 The factual basis required to support a plea may be determined from the extended record, which may include presentence reports, transcripts from preliminary hearings, proceedings before the grand jury, and other sources. See State v. Sodders, 130 Ariz. 23, 25 (1981). The factual basis may "be established by 'strong evidence' of guilt and does not require a finding of guilt beyond a reasonable doubt." State v. Salinas, 181 Ariz. 104, 106 (1994). Further, "Arizona courts have consistently held that it is sufficient that the court, not the defendant, satisfy itself of the factual basis for the plea." State v. Herndon, 109 Ariz. 147, 148 (1973).
¶5 The factual basis was sufficient to support the plea. Defense counsel provided the factual basis at the change-of-plea hearing. Counsel explained to the court that on the date of the incident, Petitioner appeared in a public office and presented to a public officer a document he knew contained false information. Petitioner personally told the court he agreed with everything his attorney said. A probation violation report further clarified that Petitioner knowingly provided a false address on the registration form when he renewed his sex offender registration. This evidence is sufficient to support a guilty plea to presentment of a false instrument for filing. See Arizona Revised Statutes (A.R.S.) section 39-161 (West 2015). That Petitioner later told the court at the change of plea hearing that he was also "negligent" is of no matter. The factual basis established more than sufficient evidence of Petitioner's guilt.
¶6 As to his claim of ineffective assistance of counsel, Petitioner argues his trial attorney was ineffective because counsel first argued at a settlement conference that Petitioner was merely negligent, and therefore innocent, but then took the opposite position when he provided the factual basis for the plea and told the court Petitioner acted knowingly. The trial court did not err when it denied relief on this issue because counsel's performance did not fall below an "objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688 (1984). Counsel's actions were well within the permissible bounds of advocacy.
¶7 Regarding the court's denial of Petitioner's request for the appointment of an investigator, Petitioner argues on review that he needed an investigator to locate, interview and/or help subpoena several witnesses. However, Petitioner advised the trial court that he only needed an investigator to locate and subpoena his trial counsel from this case and the 1991 case. He told the court that was what his motion for an investigator "was all about." We do not address this issue in the context of the 1991 case counsel because Petitioner presents no argument on review regarding his 1991 counsel. For the reasons stated below, the trial court was also correct in its determination that counsel from the 1991 case was irrelevant to any issue in this case. Regarding the witnesses Petitioner identifies for the first time in his petition for review, a petition for review may not present issues not first presented to the trial court. See State v. Bortz, 169 Ariz. 575, 577 (App. 1991); Ariz. R. Crim. P. 32.9.c.1. (ii). Therefore, we address this issue only in the context of trial counsel in the instant case.
¶8 A trial court has authority to grant discovery requests in post- conviction proceedings upon a showing of good cause. See Canion v. Cole, 210 Ariz. 598, 600, ¶ 10 (2005). However, there are no provisions in Rule 32 that provide for post-conviction discovery proceedings. Id. at 599-600, ¶¶ 7-10. Petitioner failed to show there was good cause to appoint an investigator because there was no need to locate and/or subpoena his counsel. During a telephonic conference a month before the evidentiary hearing, counsel informed the court and parties he would appear at the evidentiary hearing voluntarily, and he ultimately did so. While Petitioner argues that an investigator's interview ...