Opinion
No. 2 CA-CR 2018-0178-PR
10-03-2018
THE STATE OF ARIZONA, Respondent, v. MATTHEW ALEJANO CORDOVA, Petitioner.
Matthew A. Cordova, Florence In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pima County
No. CR20134985002
The Honorable Javier Chon-Lopez, Judge
REVIEW GRANTED; RELIEF DENIED
Matthew A. Cordova, Florence
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred.
STARING, Presiding Judge:
¶1 Matthew Cordova seeks review of the trial court's order summarily denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Cordova has not demonstrated such abuse here.
¶2 After a jury trial, Cordova was convicted of armed robbery, aggravated robbery, and kidnapping. The trial court sentenced him to concurrent prison terms, the longest of which was 15.75 years. This court affirmed his convictions and sentences on appeal. State v. Cordova, No. 2 CA-CR 2014-0231 (Ariz. App. Mar. 26, 2015) (mem. decision).
¶3 Cordova sought post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but found no colorable claims to raise pursuant to Rule 32. Cordova filed a pro se petition, arguing his trial counsel had been ineffective in failing to: (1) present evidence "of an unrelated third party's culpability"; (2) call an "expert witness" to testify it would have been "impossib[le]" for the victim to have shot him; and (3) object to the identification of his codefendant and request a mistrial. He also claimed counsel did not allow him to testify. The trial court summarily denied relief, and this petition for review followed.
¶4 On review, Cordova generally repeats his claims of ineffective assistance. We have reviewed the record and conclude the trial court correctly rejected those claims in its thorough order denying relief; we accordingly adopt that ruling. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993).
¶5 We write further, however, with regard to Cordova's claim that counsel "refused to let [him] testify." As the trial court correctly noted, our supreme court has held that "a defendant must make his desire to testify known at trial and cannot allege this desire as an afterthought," and a court is not required "to have a defendant make an on-the-record waiver"
of that right. State v. Gulbrandson, 184 Ariz. 46, 65 (1995); see also State v. Allie, 147 Ariz. 320, 328 (1985). And, even where (as Cordova alleges occurred here), counsel simply refused to allow a defendant to testify, a defendant is nonetheless required to "make his objection known at trial." State v. Martin, 102 Ariz. 142, 147 (1967).
¶6 Although Cordova urges us to "overrule" Gulbrandson, Allie, and Martin, we have no authority to do so. State v. Newnom, 208 Ariz. 507, ¶ 8 (App. 2004). Additionally, Cordova has cited nothing suggesting he was unaware of his right to testify, and the trial court was not required to accept his conclusory assertion that counsel "didn't let" him testify. See State v. Schurz, 176 Ariz. 46, 58 (1993) (to raise colorable claim of ineffective assistance, defendant must show unawareness of right to testify or counsel's deprivation of right); State v. Donald, 198 Ariz. 406, ¶ 21 (App. 2000) (to warrant evidentiary hearing, Rule 32 claim "must consist of more than conclusory assertions").
¶7 We grant review but deny relief.