Opinion
No. 2 CA-CR 2017-0231-PR
02-08-2018
THE STATE OF ARIZONA, Respondent, v. ANDREW PAUL GILARDI, Petitioner.
Andrew P. Gilardi, Kingman 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NOT FOR PUBLICATION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. CR20113752001
The Honorable Sean E. Brearcliffe, Judge
REVIEW GRANTED; RELIEF DENIED
Andrew P. Gilardi, Kingman
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 Andrew Gilardi seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order absent an abuse of discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Gilardi has not demonstrated such abuse here.
¶2 Gilardi pled guilty in 2012 to stalking and harassment. The trial court suspended the imposition of sentence and placed Gilardi on concurrent, five-year probation terms. In 2014, he admitted violating the terms of his probation. The court revoked probation and imposed concurrent prison terms, the longer of which is a maximum, seven-year term. See A.R.S. § 13-702(D). The court identified as aggravating circumstances "the [e]ffect the crime had upon the victim and the continuing threat to anyone the defendant is in a relationship with."
¶3 Gilardi sought post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but "found no colorable issues on which to file a petition in this case." The court gave Gilardi leave to file a pro se petition by December 31, 2016. Gilardi filed a petition, which was timestamped January 9, 2017, claiming the conduct leading to his conviction was "constitutionally-protected" and thus his conviction was improper; he was misinformed about the sentence he could face, rendering his guilty plea involuntary; and the sentencing court improperly found aggravating factors in determining his sentence. He further asserted his due process rights had been violated because the court did not bar his prosecution as unconstitutional or advise him it would impose an aggravated sentence, and because the court found aggravating factors "bas[ed] . . . on the [probation] violation, not the original offense." Finally, Gilardi asserted his trial counsel had been ineffective for failing to raise several of the claims he identified and failing to present his "ongoing mental health issues" in mitigation.
¶4 The trial court summarily dismissed Gilardi's petition as untimely filed. However, it additionally addressed the merits of his claims, finding none warranted relief. The court concluded Gilardi's claims related to his 2012 plea and sentences were waived and precluded. The court further determined the revocation sentencing court had not been required to provide notice pursuant to A.R.S. § 13-702(E) because it did not impose an aggravated sentence but instead imposed the "maximum" term as defined by statute, the sentence imposed was proper, and Gilardi had not made a colorable claim that counsel had been ineffective at sentencing. This petition for review followed.
¶5 On review, Gilardi first asserts the trial court erred by finding his petition untimely, claiming he "submitted [his petition] for mailing by the Arizona Department of Corrections on December 28, 2016," and attaching what he describes as a "Mail Receipt" showing that date. Gilardi is correct that a pro se prisoner generally is deemed to have filed a document when it is delivered, "properly addressed, to the proper prison authorities to be forwarded to the clerk of the superior court." State v. Goracke, 210 Ariz. 20, ¶¶ 5-6, 8, 13 (App. 2005), quoting Mayer v. State, 184 Ariz. 242, 245 (App. 1995). But we need not address this argument further because we agree with the trial court that Gilardi is not entitled to relief in any event.
To the extent Gilardi seeks to incorporate by reference his petition filed below, that procedure does not comport with our rules, and we limit our review to the issues raised in Gilardi's petition for review. See Ariz. R. Crim. P. 32.9(c)(5)(A); State v. Hess, 231 Ariz. 80, ¶ 13 (App. 2012).
¶6 Gilardi also asserts the trial court erred in precluding his claims related to his guilty plea. He contends, as we understand his argument, that he is entitled to raise these claims because his guilty plea does not waive his right to appeal, his guilty plea does not waive "antecedent constitutional rights" raisable under Rule 32.1(a), Rule 32.1(f) applies because his counsel failed to raise the issues he identifies, and his claims are of "sufficient constitutional magnitude" that preclusion does not apply. We disagree. To obtain review of his guilty plea and first sentencing, Gilardi was required to seek post-conviction relief within ninety days of his sentence. Ariz. R. Crim. P. 32.4(a)(2)(A), (C). Having failed to do so, he was only permitted to raise claims pursuant to Rule 32.1(d) through (h) in this untimely proceeding. Id. The only such claim he identifies—Rule 32.1(f)—was first raised in his reply to the state's response. Thus, the trial court was not required to address it, and neither is this court. See State v. Lopez, 223 Ariz. 238, ¶¶ 7-8 (App. 2009) (trial court need not consider issues first raised in petitioner's reply); see also Ariz. R. Crim. P. 32.9(c)(1)(A) (permitting petition "for review of the [trial court's] decision"). And, as this court has explained, the "constitutional magnitude" of his claims has no relevance to whether they can be raised in an untimely proceeding. See State v. Lopez, 234 Ariz. 513, ¶¶ 7-8 (App. 2014). The trial court did not err in summarily rejecting Gilardi's arguments related to his guilty plea and original disposition, including his claim that counsel was ineffective in those proceedings.
For the same reason, we do not address Gilardi's argument that his first sentence violated protections against double jeopardy.
¶7 Gilardi repeats his argument that the sentencing court improperly sentenced him "on the [probation] violation, not the original offense" because it found no aggravating factors at his first disposition. A court revoking probation "must impose a sentence because of the original offense," and "is without authority to impose punishment for violation of probation alone." State v. Rowe, 116 Ariz. 283, 284 (1977). But, as the court explained in Rowe, "the discretion which exists at the time a sentence is imposed for the original offense embraces consideration of the fact that defendant failed to avail himself of the opportunity to reform." Id.; see also State v. Baum, 182 Ariz. 138, 140 (App. 1995) (observing that trial court is not precluded "from treating probationary failure as an aggravating factor"). It necessarily follows that a court imposing a sentence following probation revocation is not limited to the findings made at the original disposition and, thus, is not precluded from finding aggravating factors. The trial court did not err in rejecting this claim.
¶8 Lastly, Gilardi repeats his claim that counsel was ineffective at sentencing following revocation of his probation because counsel did not object when the sentencing court did not notify the parties of its intent to impose an aggravated sentence, raise issues related to the aggravating factors identified by the trial court, or present mitigating evidence concerning his mental health. To state a colorable claim of ineffective assistance, Gilardi must "show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him]." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006); accord State v. Kolmann, 239 Ariz. 157, ¶ 9 (2016); see also Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984). To demonstrate prejudice, Gilardi must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Kolmann, 239 Ariz. 157, ¶ 9, quoting Hinton v. Alabama, ___ U.S. ___, ___, 134 S. Ct. 1081, 1089 (2014).
¶9 As the trial court correctly concluded, the sentencing court was not required to give Gilardi notice it intended to impose a seven-year prison term. Section 13-702(E) requires a court to "inform all of the parties before sentencing occurs of its intent to increase or decrease a sentence to the aggravated or mitigated sentence pursuant this section." Notwithstanding the sentencing court's reference to "aggravating factors" and an "aggravated term" of imprisonment, § 13-702(D) states that a seven-year term is the "[m]aximum" term for Gilardi's conviction for stalking, and it defines the relevant "[a]ggravated" prison term as 8.75 years. Because the court did not impose the aggravated term here, only the maximum, no notice was required under § 13-702(E). Counsel had no basis to object to any lack of notice.
¶10 Moreover, as noted above, the sentencing court was not precluded from finding aggravating factors at sentencing. And Gilardi has not developed any other argument on review that the factors found by the court were improper. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim on review). Nor has he established any likelihood that additional information about his mental health would have altered his sentence. Gilardi attached to his Rule 32 petition various medical records indicating he had been diagnosed with depression and anxiety and had sought treatment near the time of his offenses. The presentence report prepared before his first sentencing, however, indicated he had no known mental health issues. And a psychological exam conducted before his second sentencing also found no "major" mental illness. But even had counsel presented the medical records, Gilardi has not attempted to establish any causal nexus between his mental health history and his offenses. While a defendant's mental health history is a potentially mitigating factor, "[a]bsent a causal nexus to the crime, . . . we usually give it little weight." State v. Prince, 226 Ariz. 516, ¶ 113 (2011).
¶11 Although we grant review, relief is denied.