State v. Palazzetti ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
RICHARD PALAZZETTI, Petitioner.
No. 1 CA-CR 19-0103 PRPC
FILED 10-22-2019
Petition for Review from the Superior Court in Maricopa County
No. CR2017-132537-001
The Honorable Joseph P. Mikitish, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Respondent
Richard Palazzetti, Kingman
Petitioner
STATE v. PALAZZETTI
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Paul J. McMurdie joined.
P E R K I N S, Judge:
¶1 Richard Palazzetti petitions this court for review from the
dismissal of his petition for post-conviction relief, filed pursuant to Arizona
Rule of Criminal Procedure 32. We have considered the petition for review
and, for the reasons stated, grant review and deny relief.
¶2 Palazzetti pleaded guilty to one count of attempted sexual
exploitation of a minor and one count of attempted sexual abuse. The
superior court sentenced him to seven years’ imprisonment on the
exploitation charge, to be followed by lifetime probation on the abuse
charge.
¶3 Palazzetti timely initiated proceedings for post-conviction
relief and filed a pro se petition after opting not to request appointment of
counsel. The superior court summarily dismissed his petition, occasioning
our review. Absent an abuse of discretion, we will not disturb the superior
court’s denial of post-conviction relief. State v. Amaral, 239 Ariz. 217, 219,
¶ 9 (2016).
¶4 Palazzetti contends the superior court erred in rejecting his
ineffective assistance of counsel claim. Palazzetti faults his attorney for
purportedly failing to (1) obtain transcripts of alleged victim interviews, (2)
explain the consequences of pleading to a preparatory offense, (3) negotiate
a plea with a stipulated prison term, (4) present exculpatory or mitigating
evidence to the superior court, and (5) file a timely notice of appeal.
Palazzetti further asserts that his guilty plea was unlawfully induced and
that his right against self-incrimination was infringed, although he does not
specify whether defense counsel or some other actor caused these
violations.
¶5 The superior court acted within its discretion in dismissing
Palazzetti’s petition for post-conviction relief. “To state a colorable claim of
ineffective assistance of counsel, a defendant must show both that counsel’s
performance fell below objectively reasonable standards and that this
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STATE v. PALAZZETTI
Decision of the Court
deficiency prejudiced the defendant.” State v. Bennett, 213 Ariz. 562, 567,
¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). We
need not address both deficient performance and prejudice “if the
defendant makes an insufficient showing on one.” State v. Pandeli, 242 Ariz.
175, 181, ¶ 6 (2017) (quoting Strickland, 466 U.S. at 697). Palazzetti raises no
colorable claims of ineffective assistance.
¶6 The record shows that Palazzetti reviewed the interview of
the alleged victim and that his attorney used the victim’s interview
statements in order to negotiate a more favorable plea. Palazzetti does not
explain why his attorney’s failure to obtain interview transcripts was
“unreasonable under the circumstances,” State v. Cuffle, 171 Ariz. 49, 53
(1992), or how the lack of transcripts “affected the outcome of the
proceedings,” id.¶7 The record also belies Palazzetti’s assertions that his attorney
otherwise performed deficiently with respect to the plea and resulting
sentence. By negotiating a plea to preparatory offenses, as opposed to the
completed offenses with which Palazzetti was charged and which formed
the basis of the State’s initial plea offer, defense counsel significantly
reduced Palazzetti’s prison exposure. See A.R.S. § 13-705(J), (O). Contrary
to Palazzetti’s contention, defense counsel also presented evidence
favorable to him in support of a mitigated prison term. As a result of his
attorney’s performance, Palazzetti received less prison time than what the
State requested both in its initial plea offer and at sentencing.
¶8 Nor is Palazzetti entitled to relief on the ground that his
attorney failed to file a notice of appeal. Palazzetti agreed in his plea
agreement to “waive[ ] and give[ ] up his right to appeal,” a decision
consistent with State law, which bars defendants who plead guilty in
noncapital cases from filing a direct appeal. See A.R.S. § 13-4033(B); Ariz. R.
Crim. P. 17.1(e). The Supreme Court recently held that where a defendant
instructs counsel to file a notice of appeal, the attorney’s failure to timely
do so is constitutionally deficient and presumptively prejudicial, even if the
defendant pleaded guilty and waived the right to appeal in a plea
agreement. Garza v. Idaho, 139 S. Ct. 738, 747–50 (2019).
¶9 Palazzetti prepared his petition for post-conviction relief
using a form document, in which he checked a box stating, as a ground for
relief, “[t]he failure of defendant/petitioner’s attorney to file a timely notice
of appeal after being instructed to do so.” Palazzetti provides no specific
facts in the petition or otherwise in support of his claim that he asked his
attorney to file an appeal. See State v. Donald, 198 Ariz. 406, 413, ¶ 17 (App.
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STATE v. PALAZZETTI
Decision of the Court
2000) (observing that defendants “must provide specific factual
allegations,” and not merely “conclusory assertion[s],” to warrant an
evidentiary hearing on an ineffective assistance claim). Assuming without
deciding that Garza would apply retroactively, we conclude it nonetheless
does not apply here. See Garza, 139 S. Ct. at 746 (emphasizing that counsel’s
failure to file a notice of appeal was deficient because of the defendant’s
“clear requests” that counsel do so).
¶10 Palazzetti’s generalized claims of an unlawfully induced plea
and infringement of his right against self-incrimination are also insufficient
to justify an evidentiary hearing. At a settlement conference preceding his
change of plea, Palazzetti engaged in a lengthy colloquy with the court, the
prosecutor, and his counsel concerning the terms of the State’s plea offer.
Thereafter, Palazzetti confirmed he understood the plea agreement,
confirmed he understood the consequences of pleading guilty, confirmed
his plea was voluntary, and admitted to facts in support of his guilt on both
counts. Palazzetti’s unsubstantiated claim that his plea was involuntary
does not suffice to merit relief. Palazzetti’s self-incrimination claim is also
baseless as he provides no facts explaining who infringed his right against
self-incrimination or how.
¶11 We decline to consider additional grounds for relief that
Palazzetti raised before the superior court but did not identify in his
petition for review. See Ariz. R. Crim. P. 32.9(c)(4)(D) (“A party’s failure to
raise any issue that could be raised in the petition . . . for review constitutes
a waiver of appellate review of that issue.”).
¶12 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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