State v. Andrada-Pastrano ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
GERARDO ANDRADA-PASTRANO,
Petitioner.
No. 1 CA-CR 13-0669 PRPC
FILED 10-8-2015
Appeal from the Superior Court in Maricopa County
No. CR 2010-140334-001
The Honorable Sherry K. Stephens, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Gerardo Andrada-Pastrano, Florence
Petitioner
STATE v. ANDRADA-PASTRANO
Decision of the Court
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Maurice Portley joined.
O R O Z C O, Judge:
¶1 Petitioner, Gerardo Edmundo Andrada-Pastrano, petitions
this court for review from the dismissal of his petition for post-conviction
relief. We have considered the petition for review and, for the reasons
stated below, grant review and deny relief.
¶2 Petitioner was convicted of a sexual offense he committed in
1991 (the 1991 case). This conviction required Petitioner to register as a sex
offender. In 2010, the State charged Petitioner with two counts of failure to
register as a sex offender. Petitioner ultimately pled guilty to a class six
felony, presentment of a false instrument for filing, and the trial court
placed him on three years' probation. Petitioner filed a pro se petition for
post-conviction relief of-right after his counsel found no colorable claims.
The trial court found Petitioner presented colorable claims for relief,
however, and held an evidentiary hearing. The court denied the petition
for post-conviction relief at the conclusion of the hearing and Petitioner
now seeks review. We have jurisdiction pursuant to Arizona Rule of
Criminal Procedure 32.9(c).
¶3 In his petition for review, Petitioner argues the factual basis
to support his plea was insufficient; his trial counsel was ineffective; the
trial court erred when it refused to appoint an investigator to assist
Petitioner; he has newly discovered evidence regarding the 1991 case and
the court improperly limited the scope of the evidentiary hearing. We will
affirm the trial court’s ruling if it is based on substantial evidence. See State
v. Sasak, 178 Ariz. 182, 186 (App. 1993).
¶4 The factual basis required to support a plea may be
determined from the extended record, which may include presentence
reports, transcripts from preliminary hearings, proceedings before the
grand jury, and other sources. See State v. Sodders, 130 Ariz. 23, 25 (1981).
The factual basis may “be established by ‘strong evidence’ of guilt and does
not require a finding of guilt beyond a reasonable doubt.” State v. Salinas,
181 Ariz. 104, 106 (1994). Further, “Arizona courts have consistently held
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STATE v. ANDRADA-PASTRANO
Decision of the Court
that it is sufficient that the court, not the defendant, satisfy itself of the
factual basis for the plea.” State v. Herndon, 109 Ariz. 147, 148 (1973).
¶5 The factual basis was sufficient to support the plea. Defense
counsel provided the factual basis at the change-of-plea hearing. Counsel
explained to the court that on the date of the incident, Petitioner appeared
in a public office and presented to a public officer a document he knew
contained false information. Petitioner personally told the court he agreed
with everything his attorney said. A probation violation report further
clarified that Petitioner knowingly provided a false address on the
registration form when he renewed his sex offender registration. This
evidence is sufficient to support a guilty plea to presentment of a false
instrument for filing. See Arizona Revised Statutes (A.R.S.) section 39-161
(West 2015).1 That Petitioner later told the court at the change of plea
hearing that he was also “negligent” is of no matter. The factual basis
established more than sufficient evidence of Petitioner’s guilt.
¶6 As to his claim of ineffective assistance of counsel, Petitioner
argues his trial attorney was ineffective because counsel first argued at a
settlement conference that Petitioner was merely negligent, and therefore
innocent, but then took the opposite position when he provided the factual
basis for the plea and told the court Petitioner acted knowingly. The trial
court did not err when it denied relief on this issue because counsel’s
performance did not fall below an “objective standard of reasonableness.”
Strickland v. Washington, 466 U.S. 668, 688 (1984). Counsel’s actions were
well within the permissible bounds of advocacy.
¶7 Regarding the court’s denial of Petitioner’s request for the
appointment of an investigator, Petitioner argues on review that he needed
an investigator to locate, interview and/or help subpoena several
witnesses. However, Petitioner advised the trial court that he only needed
an investigator to locate and subpoena his trial counsel from this case and
the 1991 case. He told the court that was what his motion for an investigator
“was all about.” We do not address this issue in the context of the 1991 case
counsel because Petitioner presents no argument on review regarding his
1991 counsel. For the reasons stated below, the trial court was also correct
in its determination that counsel from the 1991 case was irrelevant to any
issue in this case. Regarding the witnesses Petitioner identifies for the first
time in his petition for review, a petition for review may not present issues
not first presented to the trial court. See State v. Bortz, 169 Ariz. 575, 577
1 We cite the current version of the applicable statutes unless revisions
material to this decision have occurred since the date of the offense.
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STATE v. ANDRADA-PASTRANO
Decision of the Court
(App. 1991); Ariz. R. Crim. P. 32.9.c.1.(ii). Therefore, we address this issue
only in the context of trial counsel in the instant case.
¶8 A trial court has authority to grant discovery requests in post-
conviction proceedings upon a showing of good cause. See Canion v. Cole,
210 Ariz. 598, 600, ¶ 10 (2005). However, there are no provisions in Rule 32
that provide for post-conviction discovery proceedings. Id. at 599-600, ¶¶
7-10. Petitioner failed to show there was good cause to appoint an
investigator because there was no need to locate and/or subpoena his
counsel. During a telephonic conference a month before the evidentiary
hearing, counsel informed the court and parties he would appear at the
evidentiary hearing voluntarily, and he ultimately did so. While Petitioner
argues that an investigator’s interview of counsel would have revealed
additional relevant information and would have helped prepare Petitioner
for the hearing, Petitioner did not present this argument below.
¶9 Finally, Petitioner argues that his trial counsel was ineffective
when he failed to investigate the validity of his 1991 conviction. Petitioner
contends that his 1991 conviction is invalid for various reasons. He argues
that because his 1991 conviction was invalid, he was not required to register
as a sex offender, and therefore he cannot be guilty of presentment of a false
instrument for filing. He further argues he has a newly discovered police
report related to the 1991 case.
¶10 Petitioner's arguments amount to collateral attacks on his
conviction in the 1991 case. His challenge of that conviction and claim of
newly discovered evidence should have been made in a timely post-
conviction proceeding in that case, not this case. Unless and until Petitioner
successfully overturns his conviction in the 1991 case, that conviction
remains valid and there was no reason for counsel in this case to investigate
the validity of that prior conviction. For these same reasons, we find the
trial court did not err when it prevented Petitioner from examining his
attorney about this issue at the evidentiary hearing.
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STATE v. ANDRADA-PASTRANO
Decision of the Court
¶11 While the petition for review presents additional issues,
Petitioner did not raise those issues in the petition for post-conviction relief
filed below. Again, a petition for review may not present issues not first
presented to the trial court.
¶12 For the foregoing reasons, we grant review but deny relief.
:ama
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