State v. Salazar ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOSE GENARO SALAZAR, Petitioner.
No. 1 CA-CR 16-0508 PRPC
FILED 10-17-2017
Petition for Review from the Superior Court in Maricopa County
No. CR 2000-010424
The Honorable Teresa A. Sanders, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Jose Genaro Salazar, Kingman
Petitioner
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.
STATE v. SALAZAR
Decision of the Court
C A M P B E L L, Judge:
¶1 Jose Genaro Salazar petitions this court for review from the
dismissal of his petition for post-conviction relief, pursuant to Arizona Rule
of Criminal Procedure 32. We have considered the petition for review and
grant review but deny relief.
¶2 On July 7, 2000, Salazar was indicted on nine counts of sexual
misconduct involving three victims. Salazar agreed to plead guilty to three
counts. Each count in the plea related to a different child. Each child was
under the age of 15 at the time of the events. At the December 2000 plea
hearing Salazar pled guilty to: count 3, sexual conduct with a minor, a class
2 felony and dangerous crime against children; count 7, attempted
molestation of a child, a class 3 felony and dangerous crime against
children; and count 9, attempted molestation of a child, a class 3 felony and
dangerous crime against children, reduced per plea agreement.
¶3 The superior court informed Salazar that he would get
lifetime probation for count 9, but he could receive a term of imprisonment
or probation for count 7. In January 2001, Salazar was sentenced to: 20 years
on count 3, sexual conduct with a minor; the presumptive term of 10 years
on count 7, attempted molestation to run consecutive to count 3; and
lifetime probation on count 9. 1
¶4 On April 3, 2001, Salazar filed his first petition for post-
conviction relief claiming he was improperly induced to enter the plea
agreement and his trial counsel had been ineffective. The superior court
dismissed the petition on April 25, 2002.
¶5 Over six years later, on August 27, 2008, Salazar filed a second
petition for post-conviction relief claiming newly discovered evidence, he
was without fault for failing to file a timely petition, and a significant
change in the law. Salazar alleged his sentence violated the sentencing
guidelines, his trial counsel had been ineffective by inducing him to accept
the plea agreement, the prosecution failed to turn over exculpatory material
in violation of Brady v. Maryland, 373 U.S. 83 (1963), and he was selectively
prosecuted based on his race and indigent status. The superior court
1 As discussed, infra ¶ 11, the plea, the superior court’s minute entry
regarding the change of plea hearing, and the sentencing minute entry
erroneously state count 7 was for attempted sexual conduct with a minor,
rather than attempted molestation.
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STATE v. SALAZAR
Decision of the Court
dismissed the petition as untimely and precluded. This court denied
Salazar’s petition for review.
¶6 On April 22, 2016, Salazar filed his third petition in which he
again claimed ineffective assistance of counsel and newly discovered
evidence. Salazar added a new claim asserting he should have received
probation on count 7 and in failing to impose probation, the superior court
violated his right to due process. The superior court dismissed the petition
as untimely and the claims precluded.
¶7 On May 19, 2016, Salazar filed a Motion for Reconsideration.
He claimed that the superior court had misinterpreted the statute, and the
offense charged in count 7 was an attempted, not completed offense.
Therefore, meting out the presumptive sentence of 10 years was in error.
Salazar filed a second Motion for Reconsideration on May 24, 2016, raising
the same issue. The superior court denied both motions.
¶8 Salazar then filed a “Supplemental Rule 32” on June 16, 2016.
In the supplement, he pointed to a discrepancy between the statutory
citation of count 7 in the indictment and the statutory citation in the plea
agreement. He also claimed the superior court lacked subject matter
jurisdiction because of this discrepancy. On July 1, 2016, the superior court
dismissed the supplemental petition stating: “The pleading appears to be
the Defendant’s fifth attempt to avoid his consecutive prison term of 10
years imposed on January 26, 2001. The sentence imposed was a legal
sentence.”
¶9 On July 28, 2016, Salazar petitioned this court for review,
seeking only review of his supplemental petition. He notes that the
indictment charged count 7 as an attempt to commit an offense under
Arizona Revised Statutes (“A.R.S.”) section 13-1410 (molestation of a child
under 15 years of age) and the plea agreement changed the violation to an
attempt to commit an offense under A.R.S. § 13-1405 (sexual conduct with
a minor under the age of 15). He claims this change violates his right to
notice of the charges against him, and strips the superior court of subject
matter jurisdiction to accept the plea.
¶10 The reviewing court will not reverse a court’s summary
dismissal of post-conviction relief proceedings unless it finds an abuse of
discretion. State v. Ward, 211 Ariz. 158, 161, ¶ 7 (App. 2005). Here, the
superior court correctly found that Salazar’s claims in his “supplemental”
petition were untimely and the claims precluded.
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STATE v. SALAZAR
Decision of the Court
¶11 We note however, that a review of the transcripts from the
change of plea hearing and the sentencing hearing demonstrate that count
7—the offense that Salazar pled to and for which he provided the
supporting factual basis—was attempted molestation. We therefore correct
the superior court’s minute entry regarding the plea agreement/change of
plea hearing and its sentencing minute entry to reflect that count 7 is
attempted molestation, a class 3 felony and dangerous crime against
children. See State v. James, 239 Ariz. 367, 368, ¶ 7 (App. 2016) (“When there
is a discrepancy between the trial court’s oral statements at a sentencing
hearing and its written minute entry, the oral statements control.”) (citation
omitted); State v. Contreras, 180 Ariz. 450, 453 n.2 (App. 1994) (“When we
are able to ascertain the trial court’s intention by reference to the record,
remand for clarification is unnecessary.”).
¶12 Accordingly, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
4