State v. Vindiola ( 2015 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
LORENZO BOLOGNA VINDIOLA, Petitioner.
No. 1 CA-CR 13-0418 PRPC
FILED 1-15-2015
Petition for Review from the Superior Court in Maricopa County
No. CR1994-92384
The Honorable Brian K. Ishikawa, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Lorenzo Bologna Vindiola, Florence
Petitioner
STATE v. VINDIOLA
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge John C. Gemmill and Judge Kenton D. Jones joined.
K E S S L E R, Judge:
¶1 Petitioner Lorenzo Bologna Vindiola 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, grant review
and deny relief.
¶2 A jury convicted Vindiola of molestation of a child as a
dangerous crime against children in 1995. The trial court sentenced him to
a “flat time” term of twenty years’ imprisonment and we affirmed his
conviction and sentence on direct appeal. State v. Vindiola, 1 CA-CR 95-0818
(Ariz. App. Jul. 25, 1996) (mem. decision). Vindiola now seeks review of
the summary dismissal of his second petition for post-conviction relief
proceeding.1 We have jurisdiction pursuant to Arizona Rule of Criminal
Procedure 32.9(c).
¶3 Vindiola first argues that the decision in State v. Tarango, 185
Ariz. 208, 914 P.2d 1300 (1996) is a significant change in the law that renders
his “flat time” term of imprisonment illegal and makes him eligible for early
release. We deny relief on this issue. First, our supreme court decided
Tarango in April 1996. Id. Vindiola could have raised this issue in the
context of Tarango on direct appeal and/or in his first post-conviction relief
1Vindiola claims this is his first post-conviction relief proceeding. The trial
court dismissed Vindiola’s first post-conviction proceeding in 1997 after
Vindiola filed his notice of post-conviction relief but never filed a petition
as ordered by the court. Therefore, this is Vindiola’s second post-conviction
relief proceeding. Vindiola is also incorrect in his assertion that the trial
court did not allow him to fully brief the issues he raised in this second
proceeding. Vindiola filed his second petition for post-conviction relief
contemporaneously with his second notice of post-conviction relief. That
petition contained a memorandum of points and authorities. There were
no limitations on Vindiola’s ability to fully brief and support the issues and
arguments he presented.
2
STATE v. VINDIOLA
Decision of the Court
proceeding. Any claim a defendant could have raised on direct appeal or
in an earlier post-conviction relief proceeding is precluded. Ariz. R. Crim.
P. 32.2(a). None of the exceptions under Rule 32.2(b) apply. Our supreme
court has made it clear that the rule of preclusion includes untimely claims
regarding the legality of a sentence. State v. Shrum, 220 Ariz. 115, 117-20,
¶¶ 3-23, 203 P.3d 1175, 1177-80 (2009) (finding that a sentencing issue
regarding the legality of a sentence was precluded as untimely even though
no lawful authority allowed the sentence to be imposed).
¶4 Further, Tarango provides Vindiola no relief. Tarango
addressed a conflict in former Arizona Revised Statute (“A.R.S.”) sections
13-604(D) and 13-3408(D) (Supp. 1995). 185 Ariz. at 209, 914 P.2d at 1301.
Neither of these prior versions of sentencing statutes have any application
to Vindiola’s case. Here, the trial court correctly sentenced Vindiola
pursuant to A.R.S. § 13-604.01(E) (1994). Section 13-604.01(E) provides that,
with limited exceptions, a person who has been convicted of any dangerous
crime against children involving sexual abuse and is either eighteen years
of age or has been tried as an adult is not eligible for suspension of sentence,
probation, pardon or release from confinement until that person has served
the entire sentence.2
¶5 Vindiola also asserts that the trial court erred when it imposed
a term of community supervision to follow his prison sentence. Vindiola
does not contest that the law required the court to impose a term of
community supervision, even after a “flat time” sentence. See A.R.S. § 13-
603(I) (1994); State v. Jenkins, 193 Ariz. 115, 119-20, ¶ 13, 970 P.2d 947, 951-
52 (App. 1998). Vindiola argues that the court could not impose the term of
community supervision as part of a nunc pro tunc order that corrected
portions of the original sentencing minute entry approximately four
months after the court originally imposed the sentence. We deny relief
because Vindiola could have raised this issue in his direct appeal and/or in
his first post-conviction relief proceeding. Vindiola further claims that the
trial court erred when it admitted evidence of his prior convictions for
impeachment purposes at trial. This issue is also precluded because
Vindiola could have raised it on direct appeal.
¶6 Finally, while Vindiola presents claims of ineffective
assistance of counsel in his petition for review, they are not the same claims
of ineffective assistance he raised below. We will not consider issues that
were not first presented to the trial court. State v. Bortz, 169 Ariz. 575, 577,
2 The exceptions have no application here.
3
STATE v. VINDIOLA
Decision of the Court
821 P.2d 236, 238 (App. 1991); State v. Wagstaff, 161 Ariz. 66, 71, 775 P.2d
1130, 1135 (App. 1988).
¶7 We grant review and deny relief.
:ama
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