State v. Espino-Torres
Decision Date | 06 July 2017 |
Docket Number | No. 1 CA-CR 16-0309 PRPC,1 CA-CR 16-0309 PRPC |
Parties | STATE OF ARIZONA, Respondent, v. JUAN ESPINO-TORRES, Petitioner. |
Court | Arizona Court of Appeals |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
The Honorable Sally Schneider Duncan, Judge
Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Juan Espino-Torres, Florence
Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.
¶1 Juan Espino-Torres petitions for review from the dismissal of his petition for post-conviction relief. We have considered the petition for review and, for the reasons stated, grant review and deny relief.
¶2 A jury found Espino-Torres guilty of two counts of sexual conduct with a minor under the age of fifteen, both class two felonies and dangerous crimes against children; one count of sexual abuse of a minor under the age of fifteen, a class three felony; and three counts of sexual conduct with a minor, all class six felonies. The trial court imposed consecutive twenty-year terms of imprisonment for the sexual conduct charges and concurrent terms of lifetime probation on the remaining counts. Torres was acquitted of three additional charges for attempted molestation of a child, sexual abuse, and indecent exposure.
¶3 Espino-Torres' convictions and sentences were affirmed on direct appeal. See State v. Espino-Torres, 1 CA-CR 09-0212, 2009 WL 4877735 (Ariz. App. Dec. 17, 2009) (mem. decision). Following three other unsuccessful petitions, Espino filed the underlying petition for post-conviction relief — his fourth. Within that petition, Espino-Torres alleged trial counsel was ineffective because he: (1) would not allow Espino-Torres to testify in his own defense; (2) did not file a "bill of particulars"; (3) permitted amendments to the indictment; and (4) did not hire an expert on suppressed memory. Espino-Torres also claimed actual innocence, disputed facts from the trial, and claimed he had an alibi for certain charges because he was in federal custody at the time the incidents allegedly occurred. In support of these claims, Espino-Torres attached declarations of innocence, along with portions of trial transcripts and federal immigration documents relating to his custodial status. The trial court summarily dismissed his petition after noting most of the claims, including ineffective assistance of counsel, were successive, untimely, and precluded under Arizona Rule of Criminal Procedure 32.2(a). The court also found Espino-Torres' custodial status was not newly discovered evidence and that he failed to establish his "actual innocence" by clear and convincing evidence. See Ariz. R. Crim. P. 32.1(e), (h). Therefore, the court concluded the exceptions allowing untimely or successive petitions found in Rule 32.2(b) did not apply. Espino-Torres then petitioned this Court for review.1
¶4 We review the trial court's ruling on a petition for post-conviction relief for an abuse of discretion. State v. Jenkins, 193 Ariz. 115, 118 (App. 1998) (citing State v. Schrock, 49 Ariz. 433, 441 (1986)). We find none. The record reflects Espino-Torres could have and, at least to some extent, did raise his claims of ineffective assistance of counsel in prior post-conviction relief proceedings; these claims are therefore successive and precluded. See Ariz. R. Crim. P. 32.2(a). Moreover, in regard to the claim counsel prevented Espino-Torres from testifying, we note Espino-Torres was advised of his right to testify on the record and simply declined to do so.
¶5 We further agree with the trial court that Espino-Torres failed to present a colorable claim of newly discovered evidence under Rule 32.1(e)(2). Espino-Torres presence in federal custody is not new evidence that could not have been located with due diligence. See Ariz. R. Crim. P. 32.1(e) ( ). Moreover, the evidence he presents would not likely change the verdict. See Ariz. R. Crim. P. 32.1(e) ( ); State v. Mann, 117 Ariz. 517, 520 (App. 1977) () (citing State v. Morrow, 111 Ariz. 268, 270 (1974)). Espino-Torres presented evidence showing he was in federal custody for a narrow timeframe in May 1996. And, Espino-Torres was acquitted for both counts alleging misconduct that occurred during that time. The remainder of the charges, and all of the convictions, resulted from later incidents, occurring at times when there is no evidence to suggest Espino-Torres was in custody.
¶6 Espino-Torres' actual innocence claim likewise fails. To obtain post-conviction relief on the grounds of actual innocence, the defendant must "demonstrate[] by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found defendant guilty of the underlying offense beyond a reasonable doubt." Ariz. R. Crim. P. 32.1(h). Actual innocence requires "factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998) (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). "To be colorable, the claim must have the appearanceof validity, a determination that the trial court is in a better position to make than this [C]ourt." State v. Boldrey, 176 Ariz. 378, 380 (App. 1993) (citing State v. Adamson, 136 Ariz. 250, 265 (1983)). A defendant's self-serving affidavit alone is generally insufficient. See State v. Wilson, 179 Ariz. 17, 20 (App. 1993) ( ). Applying this standard, we cannot say the trial court abused its discretion in concluding Espino-Torres' affidavits protesting his innocence, immigration documents establishing an alibi for the crimes for which he was acquitted, and disputes regarding the...
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