State v. Nunez, 111519 AZAPP2, 2 CA-CR 2019-0087-PR

Docket Nº:2 CA-CR 2019-0087-PR
Opinion Judge:ECKERSTROM, JUDGE.
Party Name:The State of Arizona, Respondent, v. Gustavo Felix Nunez, Petitioner.
Attorney:Mark Brnovich, Arizona Attorney General By Joshua Moser, Assistant Attorney General, Tucson Counsel for Respondent Robert A. Kerry, Tucson Counsel for Petitioner
Judge Panel:Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred.
Case Date:November 15, 2019
Court:Court of Appeals of Arizona
 
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The State of Arizona, Respondent,

v.

Gustavo Felix Nunez, Petitioner.

No. 2 CA-CR 2019-0087-PR

Court of Appeals of Arizona, Second Division

November 15, 2019

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Petition for Review from the Superior Court in Pima County No. CR20154350001 The Honorable Danelle B. Liwski, Judge.

Mark Brnovich, Arizona Attorney General By Joshua Moser, Assistant Attorney General, Tucson Counsel for Respondent

Robert A. Kerry, Tucson Counsel for Petitioner

Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred.

MEMORANDUM DECISION

ECKERSTROM, JUDGE.

¶1 Gustavo Nunez seeks review of the trial court's orders denying his of-right petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb those orders unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We grant review and partial relief, remanding the case to the trial court for an evidentiary hearing on Nunez's claim that his plea was rendered involuntary because counsel provided misleading information or failed to provide adequate information.

¶2 Nunez pled guilty to sixteen counts of aggravated assault, nine counts of practicing medicine without a license, and one count each of fraudulent schemes and artifice, conspiracy, and control of an illegal enterprise. He was sentenced to concurrent and consecutive prison terms totaling 38.25 years. Nunez sought post-conviction relief, arguing: (1) his plea was invalid because two attachments to the plea document containing the factual bases and sentencing ranges were unsigned; (2) his plea was induced by counsel's ineffectiveness, including that counsel had given him faulty information about the prison term he could face if he pled guilty, the conditions of his incarceration depending on whether he pled guilty or went to trial, and the burden of proof; (3) counsel were ineffective in failing to retain a medical expert; (4) some of his consecutive sentences violated double jeopardy and A.R.S. § 13-116; (5) his plea was involuntary because he was unaware he would be ineligible for probation, pardon, or other release; and (6) some of his sentences were "invalid" because the trial court did not comply with A.R.S. §§ 13-703(P) and 13-704(F) by notifying him in advance of sentencing that it intended to increase his sentences under those sections and, alternatively, that counsel was ineffective in failing to object.

¶3 The trial court summarily rejected all of Nunez's claims. But, despite determining "the plea is not invalid because of the lack of signatures by [Nunez]," the court noted the filed plea agreement did not include revisions transcribed by the judge at the change-of-plea hearing. It set an evidentiary hearing "to determine why the signed plea and plea attachments that [Nunez] and [the judge] initialed are not filed in the record" and "if this in any way would affect the validity of the plea agreement." After that hearing, at which one of Nunez's two trial attorneys testified, the court denied the petition for post-conviction relief. This petition for review followed.

¶4 On review, Nunez repeats his claims. He first argues the plea is not "valid" because the two attachments in the record are unsigned. Rule 17.4(b), Ariz. R. Crim. P., states "[t]he terms of a plea agreement must be in writing and be signed by the defendant, defense counsel (if any), and the prosecutor," and the plea must be filed.

¶5 "The provisions of Rule 17 are intended to insure the voluntary and intelligent quality of the plea" and, thus, an unwritten plea may be invalid. State v. Lee, 112 Ariz. 283, 284 (1975). However, the failure to comply with Rule 17.4(b) warrants relief only if the error causes prejudice. See State v. Morris, 115 Ariz. 127, 127 (1977). Nunez has not shown prejudice.

¶6 The unsigned attachments to the plea contain the range of sentences and the factual bases for the offenses to which Nunez pled guilty. Nunez has not argued they are inconsistent with the plea colloquy, during which Nunez admitted the factual bases and stated he understood the possible sentences he could receive. Nunez does not argue in his petition that he misunderstood the factual bases for his pleas of guilty and, although he suggests he did not fully understand the trial court's verbal recitation of the sentencing ranges, he has identified no specific confusion about the sentences he could face for each offense. And Nunez signed attachments to the plea-just not the copies filed with the court. Although he asserts the attachments he signed and the filed attachments could have varied, this claim is speculative. Nunez has not identified anything in the documents he signed that differs from the...

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