State v. Alderete
| Decision Date | 13 August 2018 |
| Docket Number | No. 2 CA-CR 2018-0079-PR,2 CA-CR 2018-0079-PR |
| Parties | THE STATE OF ARIZONA, Respondent, v. JOHN JUSTIN ALDERETE, Petitioner. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pinal County
The Honorable Joseph R. Georgini, Judge
REVIEW GRANTED; RELIEF DENIED
Kent P. Volkmer, Pinal County Attorney
By Geraldine L. Roll, Deputy County Attorney, Florence
Counsel for Respondent
The Law Office of Bret Huggins, Florence
By Bret H. Huggins
Counsel for Petitioner
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred.
¶1 John Alderete seeks review of the trial court's order summarily denying his of-right petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Alderete has not shown such abuse here.
¶2 Alderete pled guilty to attempted first-degree murder and the trial court sentenced him to a 10.5-year prison term. He sought post-conviction relief, arguing the factual basis for his plea was insufficient, his plea was involuntary because he did not understand the requisite intent required for accomplice liability, and his trial counsel was ineffective in failing to establish an adequate factual basis, explain to him the requisite intent, investigate his case, and object at sentencing when the court imposed a prison term greater than the statutory maximum of ten years. The court summarily denied relief, and this petition for review followed.
¶3 On review, Alderete first repeats his argument that the factual basis for his guilty plea was insufficient because it did not establish his liability as an accomplice. 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. State v. Sodders, 130 Ariz. 23, 25 (App. 1981). A sufficient 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), quoting State v. Wallace, 151 Ariz. 362, 365 (1986). 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). Thus, a defendant's "understanding of the legal terminology is not determinative." State v. Ovante, 231 Ariz. 180, ¶ 17 (2013).
¶4 To establish a person's guilt as an accomplice to attempted first-degree murder pursuant to a plea agreement, the factual basis must demonstrate that person, "with the intent to promote or facilitate" attempted first-degree murder, "[s]olicit[ed] or command[ed] another person to commit" that offense, "[a]id[ed], counsel[ed], agree[d] to aid or attempt[ed] to aid another person in planning or committing" it, or "[p]rovide[d] means or opportunity to another person to commit" it. A.R.S. §§ 13-301, 13-303(A)(3); see also A.R.S. §§ 13-1001, 13-1105. Alderete's argument is essentially that the factual basis was insufficient because there was no evidence he was aware his passenger would shoot the victim. But, "intent to engage in the criminal venture may be shown by the relationship of the parties and their conduct before and after the offense." State v. Tison, 129 Ariz. 546, 553 (1981). Thus, that a person intended to aid in the commission of the offense may be inferred when the person acts as a getaway driver. Cf. State v. Axley, 132 Ariz. 383, 385, 393 (1982); State v. Parker, 121 Ariz. 172, 173-74 (App. 1978).
¶5 The factual basis here establishes that Alderete and his passenger drove to the scene of an earlier confrontation with the victim and, after the passenger shot the victim in the head from inside the car, Alderete drove away with the shooter. Additionally, Alderete admitted at the change-of-plea hearing that he had acted "in concert" with the shooter.1 These facts clearly permit the inference that Alderete intended to aid the shooter in committing first-degree murder. And, because the factual basis was sufficient, we also reject Alderete's related claim that counsel was ineffective in failing to understand accomplice liability and challenge the requisite sufficiency of his guilty plea. See State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) ().
¶6 To the extent Alderete reurges that his plea was involuntary because he was "never informed of the nature of accomplice liability," thatclaim does not warrant relief. For a plea to be valid, "the record must show that the defendant understood the nature of the charges against him and that his conduct fell within those charges." State v. Coleman, 152 Ariz. 583, 586 (App. 1987). However, a trial court need not "inform a defendant of each element of every crime with which he is charged." Id. As we have explained, Alderete acknowledged acting in concert with the shooter, evincing his understanding that his culpability rested on his cooperation, not his mere presence. Nothing more was required. And Alderete has not identified any evidence in the record supporting his claim that counsel failed to adequately inform him of the requisite intent to aid the shooter.2
¶7 Alderete also contends that counsel was ineffective for failing to investigate his case. But, by pleading guilty, Alderete has waived all non-jurisdictional defects, including claims of ineffective assistance, except those related to the validity of his plea. See State v. Quick, 177 Ariz. 314, 316 (App. 1993). Thus, Alderete must allege he would not have pled guilty "but for counsel's deficient performance" and must provide "an allegation of specific facts which would allow a court to meaningfully assess why that deficiency was material to [his] decision" to waive his rights. State v. Bowers, 192 Ariz. 419, ¶ 25 (App. 1998). Alderete has not done so; this claim of ineffective assistance therefore fails.
¶8 Alderete additionally asserts that counsel was ineffective for failing to object on A.R.S. § 13-702(E) grounds when the trial court imposed a 10.5-year prison term. Pursuant to § 13-702(E), a court is required to Attempted first-degree murder is a class two felony, with a presumptive prison term of fiveyears, a maximum term of ten years, and an aggravated term of 12.5 years.3 §§ 13-702(D), 13-1001(C)(1), 13-1105(D). But, even assuming that § 13-702(E) applies when the court imposes more than the maximum but less than the aggravated prison term and that counsel's failure to object could have no reasoned tactical basis, Alderete has not shown any likelihood the court would have imposed a lesser sentence. See Bennett, 213 Ariz. 562, ¶ 21 (); State v. Denz, 232 Ariz. 441, ¶ 7 (App. 2013) (...
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