State v. Laureano ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
RUBI LAUREANO, Petitioner.
No. 1 CA-CR 16-0663 PRPC
FILED 1-2-2018
Petition for Review from the Superior Court in Maricopa County
No. CR2015-001251-001 DT
The Honorable Dean M. Fink, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Jeffrey R. Duvendack
Counsel for Respondent
Law Offices of Matthew H. Green, Tucson
By Mary M. Kincaid
Counsel for Petitioner
STATE v. LAUREANO
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.
W I N T H R O P, Presiding Judge:
¶1 Rubi Laureano petitions this court for review of the dismissal
of her of-right petition for post-conviction relief filed pursuant to Arizona
Rule of Criminal Procedure (“Rule”) 32. We have considered the petition
for review and, for the reasons stated, grant review but deny relief.
¶2 Although she was aware her husband had sexually abused
and impregnated their thirteen-year-old daughter, Laureano did not report
the abuse to police. After the victim’s school reported the abuse, the State
charged Laureano with one count each of child abuse, a class 4 felony, and
failure to report nonaccidental injuries and physical neglect of minors, a
class 6 felony.
¶3 Laureano, a Mexican national who was unlawfully present in
the United States, subsequently pled guilty to an amended count of child
abuse, a class 6 undesignated felony. At sentencing, defense counsel
requested that the court designate the offense a misdemeanor. The court
denied the request, imposed a two-year term of probation, and ordered that
the offense remain undesignated until Laureano completed probation.
¶4 Laureano timely sought post-conviction relief. In her first
amended Rule 32 petition, Laureano raised a claim of ineffective assistance
of counsel (“IAC”) based on counsel’s purported failure to “effectively
engage in plea negotiations.” Specifically, Laureano argued counsel’s
performance was deficient for not attempting to negotiate an agreement to
plead guilty only to compounding, a conviction for which, according to
Laureano, would not trigger immigration proceedings to remove her from
the United States.1 See Ariz. Rev. Stat. § 13-2405(A)(2) (2010) (providing that
1 Because the record reflects Laureano argued in superior court that
counsel was ineffective for failing to negotiate a specific plea agreement, we
reject her assertion in her petition for review that she did not seek a “specific
plea.”
2
STATE v. LAUREANO
Decision of the Court
a person commits compounding by knowingly accepting, or agreeing to
accept, any pecuniary benefit for refraining from reporting to law
enforcement authorities the commission of any offense). The superior court
summarily dismissed the petition, reasoning in part that Laureano was
properly advised regarding the adverse effect a guilty plea could have on
her immigration status, and Laureano failed to establish the State would
have agreed to offer a plea to compounding. Laureano timely filed a
petition for review. We review for an abuse of discretion the court’s
dismissal of Laureano’s first amended petition. State v. Gutierrez, 229 Ariz.
573, 577, ¶ 19 (2012).
¶5 No error occurred. The record supports the superior court’s
finding that Laureano was advised her guilty plea could result in negative
consequences regarding her immigration status. The court also correctly
found that Laureano failed to establish the requisite prejudice for her IAC
claim because she did not establish a reasonable probability the State would
have agreed to a plea for compounding. See Strickland v. Washington, 466
U.S. 668, 687–88, 694 (1984) (holding that, to state a colorable claim of
ineffective assistance of counsel, a “defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different”), superseded by statute
on other grounds, Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104–132, 110 Stat. 1214 (1996).
¶6 Laureano nonetheless contends the court erred in failing to
apply the correct standard to determine whether an attorney’s advice to a
client that a guilty plea “may” have immigration consequences was
sufficient. Relying on an opinion by the Ninth Circuit Court of Appeals,
Laureano argues her lawyer had a duty to advise her that a conviction for
child abuse was “virtually certain” to lead to her removal. Laureano first
raised this argument in her reply to the State’s response to her petition for
post-conviction relief; thus, the superior court properly exercised its
discretion in not addressing it. See State v. Lopez, 223 Ariz. 238, 240, ¶ 7
(App. 2009) (holding that the superior court may refuse to consider issues
and arguments first raised in a reply in support of a petition for post-
conviction relief). Accordingly, we also do not address this issue. See Ariz.
R. Crim. P. 32.9(c) (permitting a petition “for review of the actions of the
trial court”).
3
STATE v. LAUREANO
Decision of the Court
¶7 Accordingly, although we grant review, we deny relief.
AMY M. WOOD • Clerk of the Court
FILED: JT
4