State v. Poblete

• Decision Date: 28 July 2011
• Docket Number: No. 2 CA–CR 2011–0136–PR.,2 CA–CR 2011–0136–PR.
• Parties: The STATE of Arizona, Respondent,v.Gerardo POBLETE, Petitioner.
• Court: Arizona Court of Appeals

260 P.3d 1102

613 Ariz. Adv. Rep. 6

The STATE of Arizona, Respondent,

v.Gerardo POBLETE, Petitioner.

No. 2 CA–CR 2011–0136–PR.

Court of Appeals of Arizona, Division 2, Department A.

July 28, 2011.

Law Offices of Richard La Paglia By Mary Z. La Paglia, Eloy, Attorneys for Petitioner.

OPINION

BRAMMER, Judge.

¶ 1 Petitioner Gerardo Poblete seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R.Crim. P. “We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion.” State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App.2007). Poblete has not sustained his burden of establishing such abuse here.

¶ 2 Pursuant to a plea agreement, Poblete was convicted of one count of attempted possession of a narcotic drug for sale. The trial court suspended the imposition of sentence and placed him on probation for a period of four years, ordering that he serve sixty days in the county jail as a condition of probation. Poblete's probation was terminated early, in September 2008. Poblete, who is a non-citizen, legal resident of the United States, later consulted an immigration attorney in 2009, and the attorney informed him that, as a result of his conviction, he was subject to deportation under 8 U.S.C.A. § 1227.

¶ 3 In December 2010, Poblete initiated Rule 32 proceedings, asserting his failure to file timely his notice of post-conviction relief had not been his fault, but rather “was attributable to the ineffectiveness of his prior criminal counsel” in not informing him of the immigration consequences of his guilty plea. And, he maintained, he was entitled to relief based on the Supreme Court's decision in Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which he characterized as a significant change in the law for purposes of Rule 32.1(g). Poblete averred that neither the trial court ¹ nor his attorney had advised him “of the immigration consequences that would result from [his] plea of guilty” and that he “would not have pled guilty” had he known of those consequences. The court denied relief, concluding that because it had advised Poblete of the possible immigration consequences of his plea he was not entitled to relief under Rule 32.1(f) and that Padilla was not applicable retroactively and did not constitute a significant change in the law.

¶ 4 In his petition for review, Poblete again maintains he could not have sought post-conviction relief timely because “he did not become aware until ... later that this plea would result in mandatory removal from the United States” and argues Padilla was a significant change in the law entitling him to relief. He contends the trial court erred in concluding otherwise.

¶ 5 As the trial court correctly pointed out, Poblete's petition was untimely. Therefore he is entitled to relief only on certain grounds, among them that he was “without fault” for the delay in filing his notice, and that “[t]here has been a significant change in the law that if determined to apply to defendant's case would probably overturn the defendant's conviction or sentence.” Ariz. R.Crim. P. 32.1(f), (g) and 32.4(a).

¶ 6 Poblete first claims he is entitled to relief under Rule 32.1(f) because he “was not in a position to seek post-conviction relief within [ninety] days of his conviction because he did not become aware until a few years later that this plea would result in mandatory removal from the United States.” Rule 32.1(f) provides that a petitioner may request the right to file a delayed notice of post-conviction relief if his failure to file timely was “without fault on the [petitioner's] part.” Relief should be granted under this rule if the trial court failed to advise the defendant of his right to seek of-right post-conviction relief or if the defendant intended to seek post-conviction relief in an of-right proceeding and had believed mistakenly his counsel had filed a timely notice or request. See Ariz. R.Crim. P. 32.1(f) 2007 cmt.

¶ 7 Poblete is not arguing he was unaware of his right to petition for post-conviction relief or of the time within which a notice of post-conviction relief must be filed or that he intended to challenge the court's decision but his attorney or someone else interfered with his timely filing of a notice as contemplated by Rule 32.1(f). See Ariz. R.Crim. P. 32.1(f) 2007 cmt. Indeed, the trial court informed Poblete that he had a right to seek post-conviction relief. Rather, his claim is essentially that, based on information that later came to light, he regretted having failed to challenge his conviction. Such a claim is not cognizable under Rule 32.1(f). See Ariz. R.Crim. P. 32.1(f) 2007 cmt.; cf. State v. Montez, 102 Ariz. 444, 447, 432 P.2d 456, 459 (1967) (“[A] convicted felon may acquiesce in the advice and decision of counsel not to appeal, so as to make that decision his. We will not recognize the claim that the decision of counsel in which he acquiesced deprived him of the right to counsel ... so as ... to permit it to be asserted as the basis of good cause for a delayed appeal.”); David B. Wexler & Andrew Silverman, Representing Prison Inmates: A Primer on an Emerging Dimension of Poverty Law Practice, 11 Ariz. L.Rev. 385, 397–400 (1969) (“Plainly ... a defendant's decision not to appeal ... will preclude the possibility of a subsequent delayed appeal.”).

¶ 8 We must then consider whether Poblete is entitled to relief under Rule 32.1(g), which provides relief when there has been a “significant change in the law.” “Rule 32 does not define a significant change in the law.' But plainly a change in the law' requires some transformative event, a clear break from the past.' ” State v. Shrum, 220 Ariz. 115, ¶ 15, 203 P.3d 1175, 1178 (2009), quoting State v. Slemmer, 170 Ariz. 174, 182, 823 P.2d 41, 49 (1991).

¶ 9 In Padilla, the Supreme Court concluded “Padilla's counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country.” ––– U.S. at ––––, 130 S.Ct. at 1478. Because counsel had not so advised Padilla, the Court ruled he had established deficient performance under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and remanded the matter to the state court to determine whether Padilla could establish he had been prejudiced by counsel's failure to advise him of the immigration consequences of his guilty plea. Padilla, ––– U.S. at ––––, 130 S.Ct. at 1483–84. Thus, under Padilla, failure to advise a client of the immigration consequences of a guilty plea constitutes deficient performance under Strickland. Id. at ––––, 130 S.Ct. at 1483.

¶ 10 We agree with Poblete that Padilla constitutes a significant change in the law. Before Padilla, the law in Arizona provided that an attorney's failure to advise a defendant of the immigration consequences of his or her plea was not ineffective assistance of counsel because such advice related to a “collateral” matter. See State v. Rosas, 183 Ariz. 421, 423, 904 P.2d 1245, 1247 (App.1995). The majority of other states and every federal circuit that had considered the issue pre- Padilla followed a similar rule. See People v. Kabre, 29 Misc.3d 307, 905 N.Y.S.2d 887, 893–94 (Crim.Ct.2010); see also Miller v. State, 196 Md.App. 658, 11 A.3d 340, 349–51 (2010). Because the Supreme Court rejected this approach in Padilla, we conclude Padilla represents a significant change in the law.

¶ 11 The question remains, however, whether this significant change in the law applies to Poblete. See Ariz. R.Crim. P. 32.1(g) (relief based on significant change in the law “that if determined to apply to defendant's case would probably overturn the defendant's conviction or sentence.”) To answer that question, we must determine whether Padilla is applicable retroactively to cases, like Poblete's, that were final at the time it was decided. State v. Towery, 204 Ariz. 386, ¶ 8, 64 P.3d 828, 831–32 (2003) (“A defendant's case becomes final when a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.' ”), quoting Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).

¶ 12 New constitutional rules generally are not applicable to cases already final when the rule is announced. See State v. Febles, 210 Ariz. 589, ¶ 8, 115 P.3d 629, 632 (App.2005); see also Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007) (“[A]n old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review.”). A rule clearly is “new” when a court expressly overturns its own precedent. Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). When, as in Padilla, the court extends existing law, however, the determination of whether the rule being announced is new is more complicated. Id.; see also Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion). In Teague, the Supreme Court defined a new rule as a rule that “breaks new ground,” “imposes a new obligation on the States or the Federal Government,” or was not “ dictated by precedent existing at the time the defendant's conviction became final.” 489 U.S. at 301, 109 S.Ct. 1060.

¶ 13 Poblete argues on review that although Padilla “is new and is a significant change in the law,” it was “not a new basis for setting aside a conviction,” and was therefore not a new rule for retroactivity purposes. ² We disagree. We recognize that, as Poblete suggests, the Padilla Court applied the existing Strickland standard. But, although a new rule generally is not created by the application of an established rule, a new rule may be announced if “the prior...