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State v. Leyva

Court of Appeals of Arizona, Second Division

February 22, 2017

The State of Arizona, Respondent,
Jose Eligio Leyva, Petitioner.

         Petition for Review from the Superior Court in Santa Cruz County No. S1200CR201500109 The Honorable Anna M. Montoya-Paez, Judge

          George E. Silva, Santa Cruz County Attorney By Kimberly J. Hunley, Deputy County Attorney, Nogales Counsel for Respondent

          Barton & Storts, P.C., Tucson By Brick P. Storts, III Counsel for Petitioner

          Presiding Judge Staring authored the opinion of the Court, in which Judge Espinosa and Judge Miller concurred.


          STARING, Presiding Judge:

         ¶1 Jose Leyva seeks review of the trial court's summary dismissal of his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. For the reasons that follow, we grant review but deny relief.

         ¶2 Pursuant to a plea agreement, Leyva was convicted of one count each of kidnapping, aggravated assault, and child abuse, all domestic violence offenses.[1] The trial court accepted his guilty plea on January 14, 2016, a week before his jury trial was scheduled to commence. Although that date's hearing had been scheduled to address motions in limine, jury instructions, and voir dire, Leyva's attorney asked the court to grant Leyva an opportunity to discuss the state's plea offer with his mother and sister, who were present in court. The court granted the request and later was informed Leyva had signed a plea agreement.[2] After conducting a plea colloquy, see Ariz. R. Crim. P. 17.2, the court found Leyva's guilty plea had been "made knowingly, intelligently and voluntarily" and scheduled sentencing for February 16.

         ¶3 On February 11, Leyva filed a motion to withdraw from his plea agreement, asserting he had been "coerced into accepting the plea because of pressure put on him" by his attorney, his mother, and his sister. Leyva argued he had "regretted this decision upon leaving the courtroom, and wished to file an immediate motion requesting withdrawal." His attorney had "encouraged him to wait a little while to see if he would feel differently before formally requesting to withdraw, " but, after waiting, he "still believe[d] that acceptance of the plea offer was not the right thing to do." The court scheduled a hearing for February 29 and tentatively continued sentencing until that date, dependent on its ruling on the motion. On February 29, the court denied Leyva's motion and rescheduled sentencing for March 7. Leyva admitted having one historical prior felony conviction, and the trial court sentenced him to enhanced, maximum, concurrent terms of imprisonment, the longest of which is 18.5 years.

         ¶4 Leyva filed a timely notice of post-conviction relief and, in the petition that followed, alleged he had been "denied a basic constitutional right when the trial court denied his motion to withdraw from the plea, and his counsel was ineffective because she failed to file a motion to withdraw from the plea immediately upon learning that [he] felt coerced" into entering the plea. Leyva asserted he "would have had a much better chance of having the motion granted" had it been filed sooner. Finally, Leyva maintained his attorney performed deficiently at sentencing by failing to present mitigating evidence or to object to the presentence report.

         ¶5 The trial court dismissed the petition without a hearing, finding "no purpose would be served by further proceedings." See Ariz. R. Crim. P. 32.6(c) (court "shall order the petition dismissed" if no non-precluded claim "presents a material issue of fact or law which would entitle the defendant to relief" and "no purpose would be served by any further proceedings"). This petition for review followed.


         ¶6 We review a trial court's denial of post-conviction relief for an abuse of discretion, and we will affirm that ruling if it is legally correct for any reason. State v. Roseberry, 237 Ariz. 507, ¶ 7, 353 P.3d 847, 848 (2015). On review, Leyva asserts "the trial court err[ed]" in finding he failed to state a colorable claim, and he asks that we remand the case for an evidentiary hearing. He argues "there was no determination of voluntariness" with respect to his guilty plea.[3] He also contends the trial court "did not consider" his assertions that his guilty plea was "coerced" by family members and counsel and therefore was not voluntary. [4] The court correctly concluded that no material issue of fact or law would entitle Leyva to relief and correctly dismissed his petition.

         Limitations of Post-Conviction Relief under Rule 32

         ¶7 Leyva's claims for post-conviction relief are cognizable only to the extent they fall within a specific ground enumerated in Rule 32.1. As our supreme court has explained, "[a]fter the legislature abolished direct appeals for pleading defendants" in 1992, "Rule 32.1 was amended to provide for an 'of-right' [post-conviction relief] proceeding" for such defendants, to be heard "in the court that rendered the challenged conviction or sentence." State v. Shrum,220 Ariz. 115, ¶ 10, 20 ...

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