State v. Leyva

• Decision Date: 22 February 2017
• Docket Number: No. 2 CA–CR 2016–0386–PR,2 CA–CR 2016–0386–PR
• Citation: 389 P.3d 1266
• Parties: The STATE of Arizona, Respondent, v. Jose Eligio LEYVA, Petitioner.
• Court: Arizona Court of Appeals

389 P.3d 1266

The STATE of Arizona, Respondent,

v.Jose Eligio LEYVA, Petitioner.

No. 2 CA–CR 2016–0386–PR

Court of Appeals of Arizona, Division 2.

Filed February 22, 2017

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.

OPINION

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.

Discussion

¶ 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, 203 P.3d 1175, 1178 (2009) ; see also 1992 Ariz. Sess. Laws, ch. 184, § 1 (amending A.R.S. § 13–4033 ).

¶ 8 Rule 32 is "analogous to a direct appeal." Montgomery v. Sheldon , 181 Ariz. 256, 260 n.5, 889 P.2d 614, 618 n.5 (1995), superseded by statute on other grounds as recognized by State v. Smith , 184 Ariz. 456, 459, 910 P.2d 1, 4 (1996). But it provides " ‘a distinct form of appellate review,’ " and "[e]ven when a Rule 32 petition provides the first opportunity for review, as occurs when a defendant pleads guilty, ... the Rule 32 process does not equate to a direct appeal." State v. Glassel , 233 Ariz. 353, ¶¶ 9–10, 312 P.3d 1119, 1120–21 (2013), quoting Montgomery , 181 Ariz. at 259 n.2, 889 P.2d at 617 n.2. Specifically, post-conviction relief under Rule 32 "is more limited" than that available by direct appeal. Wilson v. Ellis , 176 Ariz. 121, 125, 859 P.2d 744, 748 (1993) (Martone, J., dissenting). Unlike a direct appeal, in which the type and number of issues an appellant can raise "are not limited by a per se rule," the issues that may be raised in a Rule 32 petition are limited by Rule 32.1, and a petitioner must "assert grounds that bring him within the provisions of the Rule in order to obtain relief." State v. Carriger , 143 Ariz. 142, 145–46, 692 P.2d 991, 994–95 (1984).

¶ 9 Although Leyva framed one of his claims below as a challenge to the trial court's denial of his motion to withdraw his plea, Rule 32.1 does not provide for review of such a ruling. See Ariz. R. Crim. P. 32.1 ; see also Washington v. Superior Court , 180 Ariz. 91, 93, 881 P.2d 1196, 1198 (App. 1994) (accepting special action review of denial of Rule 17.5 motion to withdraw no contest plea, noting appeal unavailable). However, his claim that his plea was involuntary, and therefore "was in violation of the Constitution of the United States or of the State of Arizona" under Rule 32.1(a), is a cognizable claim for post-conviction relief.⁵

Voluntary Nature of Leyva's Guilty Plea

¶ 10 In its Rule 32 order, the trial court explained that, when it afforded Leyva an opportunity to discuss the state's plea offer with his family and attorney, "[t]hese discussions did not include the deputy county attorney or the court," and "the parties were not hurried or pressured to reach a resolution." After it was informed that Leyva wished to accept the plea agreement, the court conducted a plea colloquy and accepted Leyva's guilty plea.⁶

¶ 11 Referring to those proceedings in its Rule 32 order, the court noted that "[t]here was nothing on the record, in his demeanor or stated by Leyva that he did not want the plea agreement," and that, despite "a number of opportunities to say something about the plea agreement and his reluctance to enter into the agreement," Leyva "stayed silent." Through its review of those proceedings, the court reaffirmed its finding of voluntariness. We reject Leyva's contrary assertion.

¶ 12 We are similarly unpersuaded by Leyva's claim that the change-of-plea colloquy was "only one possible item" to be considered by the trial court in assessing his claim that his plea was involuntary.⁷ "This colloquy between a judge and a defendant before accepting a guilty plea is not pro forma and without legal significance." Fields v. Gibson , 277 F.3d 1203, 1213–14 (10th Cir. 2002). At the change-of-plea hearing, Leyva told the trial court he understood the agreement, had no questions, had been made no other promises, and was willing to give up his rights in order to enter a guilty plea. Such "[s]olemn declarations in open court carry a strong presumption of verity," and "constitute a formidable barrier" in a subsequent challenge to the validity of the plea. Blackledge v. Allison , 431 U.S. 63, 73–74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).

¶ 13 Nonetheless, the Supreme Court has likened a guilty plea to a contract that may be set aside "on the grounds of fraud, mistake, [or] duress." Id. at 75, n.6, 97 S.Ct. 1621. Thus, the presumption a defendant responded truthfully when questioned by the court may be rebutted by showing those representations "were so much the product of such factors as misunderstanding, duress, or misrepresentation by others as to make the guilty plea a constitutionally inadequate basis" for his conviction. Id. at 75–78, 97 S.Ct. 1621 (summary dismissal unwarranted when record limited to "standard printed form" and claim supported by "specific factual allegations" about "when, where, and by whom the promise had been made," identity of "witness to its communication," and attorney's advice to conceal promise from court); see also State v. Hershberger , 180 Ariz. 495, 497–98, 885 P.2d 183, 185–86 (App. 1994) (evidentiary hearing required on claim plea induced by attorney's misrepresentation of sex offender registration provisions). But a challenge to plea proceedings is subject to summary dismissal when based on "conclusory allegations unsupported by specifics" or on "contentions that in the face of the record are wholly incredible." Allison , 431 U.S. at 74, 97 S.Ct....