State v. Wade ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
NATHANIEL WADE, Petitioner.
No. 1 CA-CR 20-0471 PRPC
FILED 5-6-2021
Petition for Review from the Superior Court in Maricopa County
No. CR2017-117023-003
The Honorable Annielaurie Van Wie, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Respondent
Nathaniel Wade, Eloy
Petitioner
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Brian Y. Furuya joined.
STATE v. WADE
Decision of the Court
C A T T A N I, Judge:
¶1 Nathaniel Wade petitions for review from the dismissal of his
petition for post-conviction relief. For reasons that follow, we grant review
but deny relief.
¶2 In 2018, Wade pleaded guilty to possession of dangerous
drugs for sale. The superior court sentenced him as stipulated in the plea
agreement to a presumptive prison term of 10 calendar years.
¶3 Wade timely initiated post-conviction proceedings. After
appointed counsel found no viable claims for relief, the superior court
ordered the attorney to continue in an advisory capacity and authorized
Wade to file a pro se petition. Wade filed a petition asserting that his
conviction was not supported by sufficient evidence (or his guilty plea
lacked an adequate factual basis), and that defense counsel provided
ineffective assistance by failing to request a preliminary hearing, failing to
request an evidentiary hearing, and failing to develop mitigation evidence
or pursue a mitigated sentence.
¶4 After the State failed to timely file a response, the superior
court emailed the State—copying Wade’s advisory counsel—to inquire
about the status of its response. The State explained that it had no record
of the minute entry order establishing a due date and requested an
extension, which the court granted over Wade’s objection. The State then
filed a response opposing Wade’s petition, and Wade filed a reply. The
court summarily dismissed Wade’s petition, reasoning that Wade’s
mitigation-specific ineffective assistance claim was not colorable because
Wade had not offered any proof of deficient performance or resulting
prejudice, his statements in open court at the change of plea provided an
adequate factual basis for his guilty plea, and his guilty plea waived all his
other asserted bases for relief.
¶5 Wade petitioned for review, asserting that (1) judges are paid
based on the length of prison sentences they impose, giving the judge a
pecuniary interest in securing a conviction; (2) the court’s email inquiring
about the status of the State’s response was an improper ex parte
communication prejudicing Wade’s rights; and (3) the superior court
abused its discretion by allowing the State to file a late response. We review
the superior court’s ruling on a petition for post-conviction relief for an
abuse of discretion. See State v. Kolmann, 239 Ariz. 157, 160, ¶ 8 (2016).
2
STATE v. WADE
Decision of the Court
¶6 Preliminarily, Wade does not challenge the superior court’s
denial of relief on his insufficient evidence and ineffective assistance claims
and has thus waived review of these issues. See Ariz. R. Crim. P. 33.16(c)(4).
Nor does the record show any abuse of discretion in the court’s resolution
of those claims. See, e.g., State v. Tison, 129 Ariz. 546, 556 (1981) (colorable
claim of ineffective assistance requires more than vague speculation and
conclusory allegations); State v. Salinas, 181 Ariz. 104, 106 (1994) (factual
basis to support each element of the crime may be established by the
defendant’s admissions); State v. Banda, 232 Ariz. 582, 585, ¶ 12 (App. 2013)
(guilty plea waives claims “except those that relate to the validity of a
plea”).
¶7 Wade asserts that the superior court’s pay structure deprived
it of jurisdiction, but he fails to provide factual support for his assertion that
judges are paid for imposing prison terms. We do not further address this
claim, however, because Wade did not first present it to the superior court,
and a petition for review may not include new arguments that were not first
presented in the petition for post-conviction relief. See Ariz. R. Crim. P.
33.16(c)(2)(B) (limiting petition for review to “issues the trial court
decided”); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980).
¶8 Wade next claims that improper ex parte communication
between the court and the State deprived him of due process, but Wade’s
advisory counsel was included on the purportedly ex parte email.
Although Wade argues that notice to advisory counsel was inadequate
because Wade was representing himself and was unable to contact the
advisory attorney, under the circumstances, the court’s email to the State
did not constitute an improper ex parte communication. Cf. State v.
Delvecchio, 110 Ariz. 396, 402 (1974) (finding no error where the superior
court directed advisory counsel to represent pro per defendants while the
defendants were absent from the proceedings); Ariz. R. Crim. P. 6.1(c)
(requiring the superior court to “give advisory counsel the same notice that
is given to the [self-represented] defendant”). Moreover, Wade had a full
and fair opportunity to challenge the State’s late response, and he has not
shown that notice of the email provided to him personally at the same time
as to advisory counsel would have led to a different outcome. See
McElhanon v. Hing, 151 Ariz. 403, 413 (1986) (requiring a showing of actual
prejudice related to ex parte communication).
¶9 Finally, Wade claims that the superior court abused its
discretion by granting the State an extension to file its response to the
petition “while requiring Defendant to abide by the rules perfectly.” But
the court similarly granted Wade extensions during the post-conviction
3
STATE v. WADE
Decision of the Court
proceedings, and we discern no abuse of discretion in the superior court’s
decision to grant the State an extension as well. Findlay v. Lewis, 172 Ariz.
343, 346 (1992) (noting the superior court’s “broad discretion over the
management of its docket”). Because the record shows good cause to grant
an extension, we decline to substitute our judgment for that of the superior
court. See id.¶10 Accordingly, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
4