Opinion
2 CA-CR 2024-0136-PR
10-31-2024
The State of Arizona, Respondent, v. Adrian Michael Ortiz, Petitioner.
Adrian M. Ortiz, Buckeye In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20100538003 The Honorable Christopher Browning, Judge
Adrian M. Ortiz, Buckeye
In Propria Persona
Judge Kelly authored the decision of the Court, in which Presiding Judge O'Neil and Judge Vasquez concurred.
MEMORANDUM DECISION
KELLY, Judge:
¶1 Petitioner Adrian Ortiz seeks review of the superior court's ruling summarily dismissing his petition for post-conviction relief filed under Rule 33, Ariz. R. Crim. P. "We will not disturb that ruling unless the court abused its discretion." State v. Hagerty, 255 Ariz. 112, ¶ 1 (App. 2023). Ortiz has not met his burden of establishing such abuse here.
¶2 Pursuant to a 2011 plea agreement, Ortiz was convicted of second-degree murder, armed robbery, and "conspiracy to commit aggravated robbery and/or armed robbery." The superior court sentenced him to a combination of consecutive and concurrent, presumptive and aggravated prison terms totaling thirty-seven years.
¶3 Shortly after sentencing, Ortiz filed a notice of post-conviction relief and requested that counsel be appointed to represent him in postconviction proceedings. In June 2012, appointed counsel filed a notice of completion of post-conviction review, stating that her review of the case- including her review of court files and transcripts, communications with Ortiz, and legal research-had revealed no colorable claims for relief. She reported that Ortiz did not wish to vacate his plea, and she requested an extension of time for him to file a pro se petition. In July 2012, the superior court granted the extension, providing Ortiz until the end of August 2012 to submit a supplemental pro se petition for post-conviction relief. Ortiz did not do so.
¶4 In April 2023, Ortiz filed a second notice of post-conviction relief. The superior court again appointed counsel to represent him. In September 2023, counsel filed a petition for relief arguing that the Arizona Department of Corrections was illegally imposing a flat-time sentence of sixteen years on the second-degree murder count, when the plea agreement called for an eighty-five percent sentence, as recognized by the court at sentencing. Concurrent with the petition, counsel filed a motion for permission for Ortiz to file a pro se petition for post-conviction relief. As the motion explained, having reviewed the "many issues" asserted in Ortiz's "extensive" notice, counsel had determined they were not sufficient basis for a petition, but Ortiz wished to pursue them pursuant to Rule 33.6(d). Then, because he had declined to raise in the petition any of the claims set forth in Ortiz's April 2023 notice, counsel filed a notice of completion under Rule 33.6(c) and a motion to withdraw. He explained that, with the exception of the sentence-related discrepancy identified in the one-issue petition, a review of the record and communications with Ortiz had left counsel "unable to find a meritorious issue of law or fact" to raise as a basis for relief under Rule 33. In November 2023, agreeing that Ortiz was entitled to early release credits under the terms of his plea agreement and the statute in effect at the time of the murder, the court granted the relief requested in the September 2023 petition.
¶5 Shortly thereafter, Ortiz sought leave to file a petition on his own behalf to assert grounds for relief that his appointed counsel had refused to include. The superior court granted that request, and Ortiz filed his pro se petition in March 2024. He raised claims challenging the validity of his plea, the legality of his sentences, and the effectiveness of his trial counsel.
¶6 In May 2024, the superior court summarily dismissed Ortiz's pro se petition. The court explained that most of the issues raised "would only be applicable if [Ortiz] had proceeded with a trial rather than accepting the plea agreement." In particular, the court noted that no jury finding is necessary to determine aggravating factors in a plea agreement and that, by pleading guilty, Ortiz had "waived several of the rights he would have [otherwise] been entitled to." This allowed him to receive a conviction and sentence for second-degree murder, rather than proceeding to trial on the original charge of first-degree murder. In addition, as a result of the plea, Ortiz received convictions and sentences for "only three out of the numerous crimes he was charged with," which "could have otherwise resulted in an effective life sentence, or a number of years far surpassing his statistical life expectancy, had he been convicted by a jury."
¶7 In response to Ortiz's allegation that he had been advised on the basis of a different plea agreement than the one he ultimately signed, the superior court found that none of the attorneys who had assisted Ortiz over the years had found "any evidence of this claim." The court further found that Ortiz had been "advised of all his rights," both before the change-of-plea hearing and again by the court during that hearing, orally confirming that he had read and understood the entire document. Finally, with regard to Ortiz's challenges to the effectiveness of his counsel, the court found that Ortiz had "received the benefit of numerous competent counsel, none of which were conflicted in their representation of [him]." This petition for review followed.
¶8 On review, Ortiz first contends the superior court's grant of the sentence-related relief requested in his September 2023 petition for postconviction relief, together with its subsequent summary dismissal of his pro se petition, entitles him to a direct appeal under A.R.S. § 13-4033. But § 13-4033(B) establishes that "a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement." By pleading guilty, a defendant "waive[s] his right to a direct appeal of his conviction and sentence." State v. Celaya, 213 Ariz. 282, ¶ 6 (App. 2006); see also Ariz. R. Crim. P. 17.1(e). Such waiver was an express term of the plea agreement Ortiz signed, and it was explained to him by the court at the change-of-plea hearing. By granting the relief requested in the September 2023 petition, the court merely ensured compliance with the original plea agreement and the sentence the court itself had previously imposed. It "did not modify or change" Ortiz's original sentence or otherwise "affect his substantial rights." State v. Delgarito, 189 Ariz. 58, 60 (App. 1997) (pleading defendant may only directly appeal ruling on post-judgment motion "if the issues raised are not those that would normally arise in an appeal from the original judgment and sentence"); see also Fisher v. Kaufman, 201 Ariz. 500, ¶ 6 (App. 2001) (defendant cannot appeal to challenge sentence originally imposed). Ortiz's reliance on our supreme court's opinion in State v. Purcell, 255 Ariz. 1 (2023), is likewise misplaced, as that case involved no plea agreement and is otherwise fully distinguishable. See id. ¶¶ 1, 20.
¶9 In addition, Ortiz continues to challenge the validity of his plea. He contends he was induced, via oral and written promises, to sign a plea agreement with materially different terms from those contained in the version of the agreement that formed the basis for his sentences. In support of this claim, Ortiz refers to a copy of the plea agreement with handwritten notations purportedly added by his trial counsel, as well an affidavit avowing that he was led to expect a total prison sentence of no more than sixteen years. As noted above, the superior court rejected these claims, both because none of Ortiz's attorneys had found "any evidence" to support them, and because the court-based on its personal interaction with Ortiz at the change-of-plea hearing-determined that his plea was knowing, voluntary, and intelligent.
¶10 Indeed, the transcript from that hearing reflects that the superior court explained the possible sentencing exposure to Ortiz in detail, including that he could be sentenced to up to thirty-nine years in prison. Insofar as they reveal anything, the handwritten notes Ortiz references include repeated indications, consistent with the court's colloquy at the change-of-plea hearing, that his "max" exposure was "39" years in prison, as well as presumptive and aggravated sentences for the three crimes that are consistent with those ultimately imposed by the court. Thus, the court's determination was supported by the record, and it did not abuse its discretion in ruling that Ortiz was not entitled to relief on this ground. See State v. Swoopes, 216 Ariz. 390, ¶ 18 (App. 2007).
¶11 Ortiz also argues that his plea was invalid because the state, rather than defense counsel, provided the factual basis, with Ortiz himself never having waived his right to do so. Relatedly, Ortiz urges that there was insufficient factual basis for the second-degree murder conviction in particular, claiming evidence would have established that he lacked the requisite "mental state or culpability for the offense." Ortiz has waived these claims by failing to support them with record citation or relevant legal authority. See State v. Digeno, 251 Ariz. 549, ¶ 13 (App. 2021) (failure to cite relevant authority and meaningfully develop argument waives claim); see also Ariz. R. Crim. P. 32.16(c)(2)(C), (D) (petition for review must contain both specific references to record and citations to supporting legal authority).
¶12 Ortiz also repeats on review his claims that his sentences are illegal and excessive. He argues, in part, that the state did not meet its burden of proving the existence of aggravators beyond a reasonable doubt. The superior court correctly rejected this argument. Ortiz received an aggravated sentence only for the armed robbery conviction. He admitted at the change-of-plea hearing that the crime had been committed with accomplices for the purpose of finding drugs or money. This provided adequate basis for the court's finding "the presence of accomplices" and "the commission of the offenses for pecuniary gain"-both statutory aggravators under A.R.S. § 13-701(D)(4), (6), which was in effect at the time of sentencing in November 2011, and the materially identical precursor in effect when the crime was committed in May 2008, see 1993 Ariz. Sess. Laws, ch. 255, § 11. See State v. Allen, 248 Ariz. 352, ¶ 62 (2020) (trial court may impose maximum prison term "if one or more statutory aggravating factors are found by a jury or admitted by the defendant" (emphasis added)).
¶13 Ortiz further contends the superior court imposed a greater punishment than contemplated in the plea agreement or permitted under the statutes in effect at the time of the crimes. This is false, given the plain terms of the plea agreement as written and as described to Ortiz in open court at the change-of-plea hearing. The sentences imposed were also consistent with all relevant statutes. See A.R.S. §§ 13-702(D), 13-710(A); 2007 Ariz. Sess. Laws, ch. 287, § 1. The court thus properly rejected Ortiz's post-conviction challenges to the legality of his sentences.
¶14 Finally, Ortiz challenges the effectiveness of his two post conviction attorneys. Because Ortiz failed to raise these claims in his pro se petition, we could deem them waived and refuse to address them. See Ariz. R. Crim. P. 33.16(c)(4) ("party's failure to raise any issue that could be raised in the petition for review . . . constitutes a waiver of appellate review of that issue"); see also State v. Vera, 235 Ariz. 571, ¶ 8 (App. 2014). However, Ortiz mentioned these claims in his second notice of post-conviction relief and his motion for leave to file his pro se petition, and the superior court summarily rejected them along with his challenge to the effectiveness of his trial counsel. Regardless, the claims fail.
¶15 As an initial matter, Ortiz did not file his notice raising claims regarding his first post-conviction counsel until April 2023, over ten years after she filed her notice of completion of post-conviction review and the superior court first provided him an opportunity to file a pro se petition in 2012. Even assuming the court properly excused this untimely filing, see Ariz. R. Crim. P. 33.4(b)(3)(D), Ortiz has not meaningfully challenged the court's conclusion that his first post-conviction counsel provided competent, non-conflicted representation. See State v. Reed, 252 Ariz. 236, ¶ 6 (App. 2021) (petitioner's burden to establish abuse of discretion in superior court's denial of post-conviction relief). Insofar as her performance was deficient because she failed to raise the sentence-related discrepancy later identified by second post-conviction counsel, Ortiz cannot establish prejudice. See State v. Bennett, 213 Ariz. 562, ¶ 25 (2006) (to state colorable claim of ineffective assistance of counsel, defendant must show "counsel's deficient performance resulted in prejudice"). As explained above, the issue was raised in Ortiz's September 2023 petition and resolved by the court in its November 2023 ruling granting relief.
¶16 As to his claims regarding second appointed post-conviction counsel, these claims are not cognizable because there is no constitutional right to the effective assistance of counsel in a successive post-conviction proceeding under Rule 33. See State v. Pruett, 185 Ariz. 128, 130-31 (App. 1995) (pleading defendant "constitutionally entitled to the effective assistance of counsel on his first petition for post-conviction relief, the counterpart of a direct appeal" (emphasis added)); see also Ariz. R. Crim. P. 33.2(b)(2) (permitting ineffective assistance claim in successive postconviction notice only regarding "counsel in the first Rule 33 postconviction proceeding"). For all these reasons, Ortiz has failed to establish any abuse of discretion in the superior court's dismissal of his pro se petition for post-conviction relief. See Hagerty, 255 Ariz. 112, ¶ 1.
¶17 Accordingly, we grant review but deny relief.