State v. Martinez-Alicea ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ANTHONY MARTINEZ-ALICEA, Petitioner.
No. 1 CA-CR 13-0154 PRPC
FILED 2-5-2015
Petition for Review from the Superior Court in Maricopa County
No. CR2008-007760-007
The Honorable Bruce R. Cohen, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Anthony Martinez-Alicea, Kingman
Petitioner
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani, Judge Lawrence F. Winthrop, and Judge
Peter B. Swann delivered the decision of the Court.
STATE v. MARTINEZ-ALICEA
Decision of the Court
P E R C U R I A M:
¶1 Petitioner Anthony Martinez-Alicea petitions this court for
review of the dismissal of his petition for post-conviction relief under Rule
32 of the Arizona Rules of Criminal Procedure. We have considered the
petition for review and, for reasons that follow, grant review but deny
relief.
¶2 Martinez-Alicea pled guilty to possession of narcotic drugs
for sale and illegally conducting an enterprise. The superior court
sentenced him to a stipulated term of seven years’ imprisonment for
possession of narcotic drugs for sale followed by four years’ probation for
illegally conducting an enterprise. Martinez-Alicea then filed a pro se
petition for post-conviction relief after his counsel found no colorable
claims for relief. The superior court summarily dismissed the petition and
Martinez-Alicea now seeks review. We have jurisdiction under Arizona
Rule of Criminal Procedure 32.9(c).
¶3 Martinez-Alicea first contends his trial counsel was
ineffective. To state a colorable claim of ineffective assistance of counsel, a
defendant must show that counsel’s performance was so deficient as to be
objectively unreasonable and to have resulted in prejudice. Strickland v.
Washington, 466 U.S. 668, 687–88 (1984).
¶4 Martinez-Alicea argues his counsel was ineffective because
she misinformed him of the results of an expert’s analysis of recordings of
incriminating telephone conversations between Martinez-Alicea and his
codefendants. Martinez-Alicea claims his counsel told him the analysis
showed it was his voice on the recordings, but argues that he discovered
notes in counsel’s file that show the expert actually could not match the
voice in the recordings to Martinez-Alicea. Martinez-Alicea argues he
would not have pled guilty or would have sought a better plea offer had he
known this information.
¶5 We deny relief for several reasons. First, Martinez-Alicea
does not address the role the recording had, if any, in the State’s case against
him. Second, the notes at issue do not indicate who wrote them or when.
Instead, they are an intermingled mix of handwritten notes that appear to
have been written by different people without identifying the source of the
information contained therein. Moreover, the notes refer only to
“Anthony,” which is problematic because there was more than one
defendant named Anthony in the indictment. Finally, the notes do not
indicate whether anyone ultimately reached a conclusion about the
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STATE v. MARTINEZ-ALICEA
Decision of the Court
recordings, and it is apparent the notes are incomplete. Although the notes
indicate that someone named “Brian N.” analyzed unidentified audio
recordings, and could not initially verify the speaker’s voice, the notes also
indicate that Brian N. wanted an additional sample, requested additional
recordings of the person’s voice, and wanted to make his own recordings
in his studio before reaching a conclusion.
¶6 Martinez-Alicea does not provide any information regarding
what conclusions, if any, Brian N. or any other person reached after
obtaining additional materials or after performing additional analysis.
Accordingly, for these reasons, Martinez-Alicea has failed to present a
colorable claim of ineffective assistance of counsel based on notes relating
to telephone recordings.
¶7 Martinez-Alicea also argues that he involuntarily pled guilty
to possession of narcotic drugs for sale. Martinez-Alicea asserts that he
believed he was pleading guilty to possession of marijuana for sale—a less
serious felony offense.
¶8 Again, we deny relief. The plea agreement expressly
provided that Martinez-Alicea would plead guilty to possession of narcotic
drugs for sale, a class 2 felony. At the change of plea hearing, Martinez-
Alicea acknowledged to the court that he would plead guilty to possession
of narcotic drugs for sale as a class 2 felony. He further acknowledged t
that he had reviewed the plea agreement with his counsel and that he
understood all the terms, including the range of the available sentence.
Finally, the factual basis offered to support the plea provided that Martinez-
Alicea had possessed cocaine, not marijuana. Martinez-Alicea did not
contest the factual basis and instead continued to express his wish to plead
guilty. He thus has failed to present a colorable claim that his plea was not
entered into knowingly, intelligently, and voluntarily.
¶9 Accordingly, we grant review but deny relief.
:ama
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