State v. Valdespino ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
PAUL THOMAS VALDESPINO, Petitioner.
No. 1 CA-CR 15-0333 PRPC
FILED 4-25-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2011-149258-001
The Honorable M. Scott McCoy, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By David R. Cole
Counsel for Respondent
Paul Thomas Valdespino, San Luis
Petitioner
MEMORANDUM DECISION
Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kenton D. Jones and Judge Donn Kessler joined.
STATE v. VALDESPINO
Decision of the Court
D O W N I E, Judge:
¶1 Paul Thomas Valdespino petitions for review from the
summary dismissal of his first petition for post-conviction relief. For the
following reasons, we grant review but deny relief.
¶2 A jury found Valdespino guilty of misconduct involving
weapons and the trial court sentenced him to 12 years’ imprisonment. This
Court affirmed Valdespino’s conviction and sentence as modified on direct
appeal. State v. Valdespino, 1 CA-CR 12-0724, 2014 WL 730134 (Ariz. App.
Feb. 25, 2014) (mem. decision).
¶3 In his petition for review, Valdespino contends his second
trial attorney was ineffective because he did not file a motion to suppress.
We deny relief because Valdespino’s petition for review identifies neither
the evidence counsel should have sought to suppress nor the grounds upon
which suppression was appropriate. Valdespino also does not identify any
facts to support his claim or cite the record or legal authority in support of
his claim. A petition for review must set forth specific claims, present
sufficient argument supported by legal authority, and include citations to
the record. Ariz. R. Crim. P. 32.9(c)(1)(iv) (Petition must contain “[t]he
reasons why the petition should be granted” and either an appendix or
“specific references to the record,” but “shall not incorporate any document
by reference, except the appendices.”). “[C]ompliance with Rule 32 is not a
mere formality.” Canion v. Cole, 210 Ariz. 598, 600, ¶ 11 (2005). A petitioner
must “strictly comply” with Rule 32 to be entitled to relief. Id. Nor will this
court consider arguments or issues raised for the first time in a reply. See
State v. Watson, 198 Ariz. 48, 51, ¶ 4 (App. 2000).
¶4 Even assuming Valdespino has properly presented for review
the one issue he raised below, relief as to that issue is inappropriate.
Valdespino argued in the superior court that both of his trial lawyers were
ineffective because they did not move to suppress a handgun police officers
seized from him. Valdespino cited State v. Serna, 235 Ariz. 270 (2014), which
held that before an officer may frisk a suspect, he or she “must reasonably
suspect both that criminal activity is afoot and that the suspect is armed and
dangerous.” 235 Ariz. at 275, ¶ 21. Serna further held that mere knowledge
or suspicion that a suspect is carrying a firearm does not provide reasonable
suspicion that the person is “presently dangerous.” Id. at ¶ 22.
¶5 Serna was decided after Valdespino’s conviction became final.
Valdespino does not explain how Serna falls within either exception to the
rule that “new rules generally should not be applied retroactively to cases
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on collateral review.” Teague v. Lane, 489 U.S. 288, 305 (1989). The
exceptions are (1) if the new rule “places ‘certain kinds of primary, private
individual conduct beyond the power of the criminal law-making authority
to proscribe,’” or (2) the rule “requires the observance of ‘those procedures
that . . . are implicit in the concept of ordered liberty.’” Id. at 307 (quoting
Mackey v. United States, 401 U.S. 667, 692 (1971) and Palko v. Connecticut, 302
U.S. 319, 325 (1937), respectively).
¶6 More fundamentally, Serna is distinguishable because it
involved a consensual encounter that was not based on any suspicion of
criminal activity. Id. at ¶ 23. Here, however, Valdespino’s encounter with
law enforcement was not consensual, and officers had reasonable suspicion
of criminal activity.
¶7 Police officers found a bicycle with its headlight still on
parked outside the open garage door of a business. One of the officers knew
the owner of the business and knew he lived alone on the premises. The
officer also knew the owner had an order of protection against a woman
that prohibited her from being on the property. The officer saw no vehicles
suggesting that the owner was home. However, the officer did see a
woman rummaging through the garage. He believed she may have been
the subject of the order of protection. The officer contacted the woman, who
possessed no identification but claimed she worked there. The officer knew
a woman who worked at the business and knew the woman rummaging
through the garage was not that person. The woman stated that the owner
was somewhere on the premises. The officer went to look for him. He
noticed that one of the doors of the business was open and that the interior
was darker than normal. The officer stood in the doorway and called out
for the owner, when he saw Valdespino. Valdespino stated he would get
the owner, then began to walk away. The officer instructed Valdespino to
stop and twice asked him to come outside before Valdespino complied.
¶8 When Valdespino came outside, the officer asked if he had
any weapons, and Valdespino responded that he did. When the officer
asked if he had a gun or a knife, Valdespino did not answer, but instead
began to reach into his pants pocket. The officer commanded him to stop
and then handcuffed Valdespino. The officer told Valdespino he was not
under arrest and that he would be detained only until the owner could be
located and could verify that Valdespino was properly on the premises.
When the officer again asked what kind of weapon he had, Valdespino
answered that he had a .25 caliber handgun. The officer then retrieved the
gun. At that time, the officer suspected the woman and Valdespino were
engaged in criminal activity. The officers eventually located the owner,
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STATE v. VALDESPINO
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who verified that the woman and Valdespino had permission to be on the
premises. By that time, however, the officers had determined that the gun
retrieved from Valdespino was stolen and that both Valdespino and the
woman had outstanding warrants.
¶9 We previously held on direct appeal that the officers had
probable cause to be on the property based on their suspicion of criminal
activity. Valdespino, 1 CA-CR 12-0724 at *2, ¶ 9. The evidence recited supra
reflects that the officers had reasonable suspicion of not only criminal
activity, but reasonable suspicion that Valdespino was armed and presently
dangerous. A law enforcement officer may frisk a suspect if the law
enforcement officer reasonably suspects there is criminal activity and that
the suspect is armed and dangerous. Serna, 235 Ariz. at 275, ¶ 21. Under
these circumstances, the trial lawyers were not ineffective by failing to file
a motion to suppress the gun.
¶10 Valdespino also argues his first trial lawyer was ineffective
because he used drugs and was suspended from the practice of law,
reportedly while representing Valdespino. He also argues his second trial
lawyer was ineffective by failing to file unidentified pretrial motions,
develop a trial strategy or discuss strategy with Valdespino, and by failing
to conduct an adequate investigation. We do not address these additional
issues because Valdespino did not sufficiently raise them in the petition for
post-conviction relief he filed below.1 A petition for review may not
present issues not first presented to the trial court. Ariz. R. Crim. P.
32.9(c)(1)(ii); 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); see also State v. Swoopes, 216 Ariz. 390, 403, ¶ 41 (App. 2007);
State v. Smith, 184 Ariz. 456, 459 (1996) (both holding there is no review for
fundamental error in a post-conviction relief proceeding).
1 While the factual background section of Valdespino’s petition below
did mention his first attorney’s drug use and suspension as well as his
second attorney’s failure to file unidentified pretrial motions, he did not
present these as separate issues on which he sought relief nor did he
reference these matters in his argument in support of the one issue he did
raise below. Merely mentioning a potential issue is not enough. State v.
Moody, 208 Ariz. 424, 452 n.9, ¶ 101 (2004).
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STATE v. VALDESPINO
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CONCLUSION
¶11 For the reasons stated, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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