State v. Botello-Rangel
Decision Date | 25 February 2020 |
Docket Number | No. 1 CA-CR 19-0332 PRPC,1 CA-CR 19-0332 PRPC |
Citation | 248 Ariz. 429,461 P.3d 449 |
Parties | STATE of Arizona, Respondent, v. Sergio BOTELLO-RANGEL, Petitioner. |
Court | Arizona Court of Appeals |
Navajo County Attorney’s Office, Holbrook, By Michael R. Shumway, Counsel for Respondent
Aspey Watkins & Diesel, PLLC, Flagstaff, By Kathryn G. Mahady, Counsel for Petitioner
¶1 Petitioner Sergio Botello-Rangel seeks review from the superior court’s dismissal of his petition for post-conviction relief under Arizona Rule of Criminal Procedure ("Rule") 33.1.1 We grant review but deny relief, holding: (1) a defendant waives a claim of ineffective assistance of counsel under Rule 33.1(a) by failing to raise the claim in a timely manner; (2) Rule 33.1(e) does not encompass a claim of newly discovered evidence of ineffective assistance of counsel or involuntary guilty plea, and is instead restricted to newly discovered material facts that probably would have changed the judgment or sentence; and (3) a defendant waives a claim of newly discovered evidence by failing to raise it within a reasonable time after discovering the factual predicate for the claim.
¶2 In 2008, the State charged Botello-Rangel with transportation of marijuana and possession of marijuana for sale of approximately 86 pounds of the drug. In January 2009, Botello-Rangel pled guilty. Under the terms of his plea agreement, Botello-Rangel would plead guilty to an amended count of conspiracy to transport marijuana for sale, and the more serious charges would be dismissed. The plea agreement stipulated that Botello-Rangel would be placed on probation with all terms and conditions of probation to be imposed at the discretion of the court.
¶3 The court engaged Botello-Rangel in a colloquy at the change-of-plea hearing:
The State provided the following factual basis for the guilty plea:
The court accepted the plea and later placed Botello-Rangel on five years of supervised probation. He completed his probation in February 2014.
¶4 Before he finished his probation, in December 2013, the federal government served a notice of removal from the United States on Botello-Rangel because of the criminal conviction in this case. The notice stated his criminal conviction was an aggravated felony conviction under federal law, meaning he was not eligible for any form of relief from deportation. In June 2018, more than four years after his probation terminated, Botello-Rangel filed a notice of post-conviction relief. Although he initially only raised a claim for failing to file a timely notice without fault under Rule 33.1(f), eventually Botello-Rangel raised three substantive claims: (1) ineffective assistance of counsel because counsel "did not advise him that there would be immigration consequences to his guilty plea"; (2) involuntary guilty plea because he "entered a guilty plea without any knowledge that his plea would directly affect his immigration status"; and (3) the existence of newly discovered material facts that supported claims 1 and 2. Botello-Rangel requested that his conviction be vacated. The newly discovered material facts alleged were the December 2013 notice of removal and the initiation of removal proceedings against him because of his conviction. After an evidentiary hearing on the petition, the court denied relief. Botello-Rangel petitioned for review, and we have jurisdiction under Arizona Revised Statutes ("A.R.S.") section 13-4239(C) and Rule 33.16.
¶5 We review the superior court’s denial of post-conviction relief for an abuse of discretion, State v. Gutierrez , 229 Ariz. 573, 577, ¶ 19, 278 P.3d 1276, 1280 (2012), but review the interpretation of the Arizona Rules of Criminal Procedure de novo , State v. Mendoza , 248 Ariz. 6, 14–15, ¶ 12, 455 P.3d 705 (App. 2019). Post-conviction relief "is applied quite restrictively to overturn guilty pleas," primarily because by pleading guilty, a defendant waives all non-jurisdictional defenses. State v. Fritz, 157 Ariz. 139, 140, 755 P.2d 444, 445 (App. 1988). To be eligible for post-conviction relief, a defendant must strictly comply with the post-conviction rules. Canion v. Cole , 210 Ariz. 598, 600, ¶ 11, 115 P.3d 1261, 1263 (2005) ; State v. Carriger, 143 Ariz. 142, 146, 692 P.2d 991, 995 (1984) ().
¶6 In his petition for review, Botello-Rangel raises the same three claims he raised in his petition for post-conviction relief. But Botello-Rangel has not complied with the applicable post-conviction relief procedures to obtain relief.
¶7 Under Rules 33.1(a) and 33.4, a defendant must file a notice of post-conviction relief within 90 days of the sentence to assert a claim that the plea was obtained in violation of the United States or Arizona constitutions. See A.R.S. § 13-4234(G) ( ); State v. Lopez , 234 Ariz. 513, 515, ¶ 8, 323 P.3d 1164, 1166 (App. 2014) ( ); accord State v. Spreitz, 202 Ariz. 1, 2, ¶ 4, 39 P.3d 525, 526 (2002) ( ).
¶8 If a defendant fails to file a timely notice, he or she is precluded from raising claims under Rule 33.1(a) and may only raise claims under Rule 33.1(b) through (h). Ariz. R. Crim. P. 33.4(b)(3)(B) ( ); Ariz. R. Crim. P. 33.2(b)(1) ( ); A.R.S. § 13-4232(B) ( ); A.R.S. § 13-4234(G). Here, the parties agree that Botello-Rangel filed for post-conviction relief in an untimely manner. Therefore, he may only raise non-precluded claims. Ariz. R. Crim. P. 33.4(b)(3)(A); A.R.S. § 13-4232(B).
¶9 Under the statute and rule, Botello-Rangel is precluded from raising his claims for ineffective assistance of counsel and involuntary guilty plea. Ariz. R. Crim. P. 33.1(a) ; Ariz. R. Crim. P. 33.4(b)(3)(A); A.R.S. § 13-4234(G). Botello-Rangel attempts to avoid preclusion of these two claims by arguing that he has "newly discovered evidence" of his counsel’s ineffective assistance during the plea proceedings that rendered his "plea involuntary." Botello-Rangel cannot use these grounds to escape the rule barring his ineffective assistance and involuntary guilty plea claims.
¶10 A claim of ineffective assistance of counsel is not cognizable as a non-precluded claim because it is recognized under Rule 33.1(a). See State v. Petty , 225 Ariz. 369, 373, ¶ 11, 238 P.3d 637, 641 (App. 2010) ; see also Ariz. R. Crim. P. 33.1(a) cmt. (counsel and violations of other constitutional rights fall under this subsection). claims of ineffectiveness of This court has consistently found that claims of ineffective assistance of counsel cannot be raised in an untimely proceeding. See, e.g. , Petty , 225 Ariz. at 373, ¶ 11,...
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