State v. Chavez ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
LINO ALBERTO CHAVEZ, Petitioner.
No. 1 CA-CR 15-0482 PRPC
FILED 11-16-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2012-005785-001
The Honorable Bruce R. Cohen, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Respondent
Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Petitioner
Arizona Attorney General’s Office, Phoenix
By Terry M. Crist
Counsel for Amicus Curiae Arizona Attorney General’s Office
Arizona Attorneys for Criminal Justice, Tucson
By David J. Euchner
Co-Counsel for Amicus Curiae Arizona Attorneys for Criminal Justice
Federal Public Defender’s Office, Phoenix
By Keith James Hilzendeger
Co-Counsel for Amicus Curiae Arizona Attorneys for Criminal Justice
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined.
M c M U R D I E, Judge:
¶1 Lino Alberto Chavez petitions this court for review from the
dismissal of his petition for post-conviction relief of-right. In a concurrently
filed opinion, we address another issue raised by Chavez.
FACTS AND PROCEDURAL BACKGROUND
¶2 In January 2012, Chavez was indicted with one count of first
degree murder, a Class 1 dangerous felony, one count of robbery, a Class 4
felony, and one count of trafficking in stolen property, a Class 3 felony. The
State alleged that Chavez drove a vehicle in which he and his codefendant
fled after the codefendant stole a laptop computer. The victim died from
injuries she sustained when she attempted to hang on to the vehicle as it
sped away. Chavez pled guilty to one count of second degree murder, a
Class 1 dangerous felony, and the superior court sentenced him to a
presumptive term of 16 years’ imprisonment.
¶3 Chavez filed a timely notice of post-conviction relief (“PCR”)
and his appointed Rule 32 counsel filed a notice of completion. Chavez then
filed a pro se petition for post-conviction relief, which the superior court
denied. Chavez filed a timely petition for review.
DISCUSSION
¶4 Chavez claims his trial counsel provided ineffective
assistance. To state a colorable claim of ineffective assistance of counsel, a
defendant must show counsel’s performance fell below objectively
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STATE v. CHAVEZ
Decision of the Court
reasonable standards and the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Nash,
143 Ariz. 392, 397 (1985).
¶5 Chavez first argues his trial counsel were ineffective because
they failed to investigate and obtain evidence to support their arguments
for why the superior court should find various mitigating circumstances for
sentencing. However, Chavez does not identify what additional evidence
counsel should have presented for the court’s consideration. In its order
dismissing Chavez’s petition, the superior court explained that when it
imposed the sentence it found all the mitigating circumstances Chavez
identified in his petition even without additional evidence from counsel,
and the court sentenced Chavez based on his version of the events. The
court ultimately held “[a]ny supplements to the presentation by his
attorneys at the time of sentencing would not have in any way altered the
results.” Therefore, even if his counsel’s performance was somehow
deficient, Chavez suffered no prejudice. See State v. Salazar, 146 Ariz. 540,
541 (1985) (when defendant fails to make a sufficient showing of prejudice,
we need not determine whether counsel’s performance fell below
objectively reasonable standards).
¶6 Chavez also contends his counsel were ineffective during plea
negotiations. A defendant is entitled to effective representation during plea
negotiations with the State. State v. Donald, 198 Ariz. 406, 413, ¶ 14 (App.
2000). To establish counsel’s deficient performance during plea
negotiations, a defendant must show counsel either (1) gave erroneous
advice, or (2) failed to give information necessary to allow the defendant to
make an informed decision regarding the plea agreement. Id. at ¶ 16.
Chavez argues that if counsel had presented the State with more evidence
showing he did not know his codefendant planned to steal the victim’s
laptop computer and that Chavez did not participate in the subsequent sale
of that computer, the State might have made a better plea offer or charged
him differently. 1 Such a contention is only speculation regarding what the
State might have done in a hypothetical situation, and is therefore not
sufficient to show prejudice. See State v. Jackson, 209 Ariz. 13, 17, ¶ 10 (App.
2004) (“[I]t is neither possible nor appropriate for a trial court to divine the
terms of a previously unoffered plea agreement in order to determine the
merits of a speculative claim of ineffective assistance of counsel in the plea
bargaining process.”). Furthermore, Chavez makes no argument that
1 The plea agreement permitted a sentence anywhere within the 10 to
22 years’ imprisonment available on a conviction for second degree murder
for a non-repetitive offender. A.R.S. § 13-710(A).
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STATE v. CHAVEZ
Decision of the Court
counsel gave him erroneous advice or failed to give him the information
necessary to make an informed decision regarding the plea. See Donald, 198
Ariz. at 413, ¶ 16. Accordingly, Chavez’s claim of ineffective assistance of
counsel must fail.
¶7 Finally, Chavez argues the superior court abused its
discretion when it imposed the presumptive sentence. We do not address
this issue because Chavez did not raise it in the petition for post-conviction
relief filed in the superior court. A petition for review may not present
issues not first presented to the trial court. State v. Bortz, 169 Ariz. 575,
577–78 (App. 1991); State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988); State v.
Ramirez, 126 Ariz. 464, 468 (App. 1980).
CONCLUSION
¶8 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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