State v. Lopez ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
EVERADO LOPEZ, JR., Petitioner.
No. 1 CA-CR 13-0867 PRPC
FILED 5-21-2015
Appeal from the Superior Court in Maricopa County
No. CR2003-014080-008 DT
The Honorable M. Scott McCoy, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane M. Meloche
Counsel for Respondent
Everado Lopez, Jr., Kingman
Petitioner
STATE v. LOPEZ
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Samuel A. Thumma and Judge Donn Kessler joined.
W I N T H R O P, Presiding Judge:
¶1 Petitioner, Everado Lopez, Jr. (“Lopez”), petitions for review
of the dismissal of his petition for post-conviction relief filed pursuant to
Rule 32, Ariz. R. Crim. P. After considering the petition for review, we
grant review and deny relief for the reasons stated below.
¶2 A jury convicted Lopez of the use of wire or electronic
communication in a drug-related transaction and conspiracy to commit
transportation of dangerous drugs for sale. The trial court sentenced Lopez
to an aggregate term of fifteen years’ imprisonment, and we affirmed his
convictions and sentences on direct appeal. State v. Lopez, 1 CA-CR 04-0534
(Ariz. App. Nov. 17, 2005) (mem. decision). Lopez now seeks review of the
summary dismissal of his third successive petition for post-conviction
relief. We have jurisdiction pursuant to Arizona Rule of Criminal
Procedure 32.9(c).
¶3 Lopez argues his trial counsel was ineffective when he
allegedly gave Lopez erroneous advice during plea negotiations. We deny
relief. Lopez could have raised this issue in his prior post-conviction relief
proceedings. Any claim a defendant raised or could have raised in an
earlier post-conviction relief proceeding is precluded. See Ariz. R. Crim. P.
32.2(a). None of the exceptions under Rule 32.2(b) apply here.
¶4 Lopez argues that Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399
(2012), and Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376 (2012), constitute
significant changes in the law that allow him to present an untimely claim
of ineffective assistance of counsel. See Ariz. R. Crim. P. 32.1(g), 32.2(b)
(recognizing that preclusion does not apply to claims for relief based on a
significant change in the law). In both cases, the Supreme Court held a
defendant has a right to effective assistance of counsel during the plea
bargain process. Frye, ___ U.S. at ___, 132 S. Ct. at 1407-08; Lafler, ___ U.S.
at ___, 132 S. Ct. at 1384. Frye and Lafler, however, are not significant
changes in the law as applied in Arizona. Arizona has long recognized that
the right to effective assistance of counsel extends to the plea bargain
2
STATE v. LOPEZ
Decision of the Court
process. State v. Donald, 198 Ariz. 406, 413, ¶¶ 14-17, 10 P.3d 1193, 1200
(App. 2000).1
¶5 Lopez may, however, be able to seek habeas corpus relief in
federal court based on ineffective assistance of trial counsel if he can first
show either he had no counsel in his first post-conviction relief proceeding
or counsel in his first post-conviction relief proceeding was ineffective. See
Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309, 1320 (2012). Martinez, however,
does not require a state court to consider all untimely claims of ineffective
assistance of counsel raised in post-conviction proceedings.
¶6 For the above reasons, we grant review and deny relief.
:ama
1 Further, in both Frye and Lafler, the Supreme Court acknowledged it
was merely applying the existing law as defined in 1984 in Strickland v.
Washington, 466 U.S. 668, 687 (1984). See Frye, ___ U.S. at ___, 132 S. Ct. at
1409; Lafler, ___ U.S. at ___, 132 S. Ct. at 1384. In 1985, the Supreme Court
held that the law announced in Strickland applied “to ineffective-assistance
claims arising out of the plea process.” Hill v. Lockhart, 474 U.S. 52, 57 (1985).
3