State v. Ventura ( 2017 )


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  •                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
    AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    STATE OF ARIZONA, Respondent,
    v.
    LORENZO ANTONIO VENTURA, SR., Petitioner.
    No. 1 CA-CR 16-0562 PRPC
    FILED 7-20-2017
    Petition for Review from the Superior Court in Maricopa County
    No. CR2014-002012-019
    The Honorable M. Scott McCoy, Judge
    REVIEW GRANTED; RELIEF DENIED
    COUNSEL
    Maricopa County Attorney’s Office, Phoenix
    By Diane Meloche
    Counsel for Respondent
    Lorenzo Antonio Ventura, Sr., Douglas
    Petitioner
    STATE v. VENTURA
    Decision of the Court
    MEMORANDUM DECISION
    Judge Jennifer B. Campbell delivered the decision of the Court, in which
    Presiding Judge Diane M. Johnsen and Judge Patricia K. Norris1 joined.
    C A M P B E L L, Judge:
    ¶1           Lorenzo Antonio Ventura, Sr., petitions this court for review
    from the dismissal of his petition for post-conviction relief. We have
    considered the petition for review, and grant review but deny relief.
    ¶2            Ventura pled guilty to illegal control of an enterprise,
    conspiracy to possess marijuana for sale, and misconduct involving
    weapons. Ventura stipulated to a “slightly aggravated term of 4 years” on
    the illegal control of an enterprise offense charge with two aggravating
    circumstances—that he committed the offense for pecuniary gain and with
    accomplices. He also stipulated to probation for conspiracy to possess
    marijuana for sale and misconduct involving weapons. In October 2014, the
    superior court accepted the plea agreement and sentenced Ventura
    accordingly.
    ¶3             In April 2016, Ventura filed an untimely notice of post-
    conviction relief (“PCR”) and a supporting petition. See Ariz. R. Crim. P.
    32.4(a) (“Any notice [of post-conviction relief] not timely filed may only
    raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h).”) He alleged, in part,
    he pled guilty because defense counsel promised that he would be released
    to U.S. Immigration and Customs Enforcement after serving one-half of his
    sentence pursuant to former Arizona Revised Statutes section 41-1604.14.
    2016 Ariz. Sess. Laws, ch. 89, § 1 (repealed 2016). He asserted his appeal,
    while untimely, should be considered because he was being held beyond
    the expiration of his sentence, see Ariz. R. Crim. P. 32.1(d), and he was not
    at fault in the late filing of his petition, see Ariz. R. Crim. P. 32.1(f). In June
    2016, the superior court summarily dismissed his petition as untimely and
    thereby precluded. The court also found that even if his petition was not
    time barred, Ventura was not entitled to relief because he had not stated a
    1      The Honorable Patricia K. Norris, Retired Judge of the Arizona Court
    of Appeals, Division One, has been authorized to sit in this matter pursuant
    to Article VI, Section 3 of the Arizona Constitution.
    2
    STATE v. VENTURA
    Decision of the Court
    basis for relief under Rule 32.1(d) or (f). Ventura did not petition this court
    for review.
    ¶4            Ventura filed a successive notice of PCR, an “Affidavit,” and
    a pleading “To Amend Petition for Post-Conviction Relief and Reconsider.”
    He alleged: (1) he had newly discovered evidence that defense counsel had
    not informed him of a more favorable plea offer; (2) his trial counsel had
    been ineffective because she had promised he would only serve half of his
    sentence; and (3) the superior court had improperly aggravated his
    sentence because he had not stipulated to any aggravating circumstances in
    the plea agreement.
    ¶5            In July 2016, the superior court summarily dismissed his
    second petition. The superior court found Ventura failed to state a factual
    or legal basis for relief based on newly discovered evidence, see Ariz. R.
    Crim. P. 32.1(e), noting Ventura had inconsistently claimed he was both
    advised of the more favorable plea offer before he accepted the October plea
    agreement, and that he had only recently learned of the more favorable plea
    offer. The superior court additionally found that his ineffective assistance
    of counsel claim, and improper aggravated sentence claim pursuant to Rule
    32.1(a) and (c), were precluded as untimely and successive.
    ¶6            Ventura subsequently filed a petition for review with this
    court, seeking review of the June 2016 and July 2016 summary dismissals.
    His petition for review of the June 2016 order of dismissal is untimely and
    not properly before this court. See Ariz. R. Crim. P. 32.9(c) (petition for
    review must be filed within 30 days of the superior court’s final decision).
    Therefore, the only ruling properly before this court is the superior court’s
    July 2016 order of dismissal.2
    ¶7            The superior court clearly identified and correctly ruled upon
    the issues raised, and Ventura has failed to show on review the superior
    court abused its discretion. See State v. Gutierrez, 
    229 Ariz. 573
    , 577, ¶ 19
    (2012) (appellate court reviews denial of petition for post-conviction relief
    for abuse of discretion) (citation omitted). First, as the superior court found,
    Ventura presented conflicting statements as to whether he knew about the
    alleged more favorable plea offer before he accepted the October plea
    agreement. See State v. Sanchez, 
    200 Ariz. 163
    , 166–67, ¶ 11 (App. 2001)
    (newly discovered evidence is evidence that existed at time of trial, but not
    discovered until after trial). Second, we agree Ventura’s ineffective
    2   For reasons not apparent in the record, the trial court reissued this
    minute entry on August 8, 2016.
    3
    STATE v. VENTURA
    Decision of the Court
    assistance of counsel claim and improper aggravated sentence claim are
    precluded. See Ariz. R. Crim. P. 32.4(a); State v. Petty, 
    225 Ariz. 369
    , 373,
    ¶ 11 (App. 2010).
    ¶8           Accordingly, we grant review but deny relief.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    4
    

Document Info

Docket Number: 1 CA-CR 16-0562-PRPC

Filed Date: 7/20/2017

Precedential Status: Non-Precedential

Modified Date: 7/20/2017