State v. Flores Alvarez ( 2014 )

NOTICE: NOT FOR PUBLICATION.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.
LUIS FLORES ALVAREZ, Petitioner.
No. CR 13-0091 PRPC
FILED 05-29-2014
Petition for Review from the Superior Court in Maricopa County
No. CR2009-162012-001DT
The Honorable James T. Blomo, Judge
REVEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Arthur G. Hazelton
Counsel for Respondent
Luis Flores Alvarez, Florence
Petitioner Pro Se
MEMORANDUM DECISION
Presiding Judge John C. Gemmill delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Patricia A. Orozco joined.
STATE v. ALVAREZ
Decision of the Court
G E M M I L L, Judge:
¶1 Petitioner Luis Flores Alvarez petitions this court for review
from the dismissal of his petition for post-conviction relief. For the
following reasons, we grant review and deny relief.
¶2 Alvarez pled no contest to attempted second degree murder
and the trial court sentenced him to fifteen years imprisonment. Alvarez
filed a pro se petition for post-conviction relief of-right after his counsel
found no colorable claims for relief. The trial court summarily dismissed
the petition and Alvarez now seeks review. We have jurisdiction in
accordance with Arizona Rule of Criminal Procedure 32.9(c).
¶3 The petition for review properly presents two issues.
Alvarez argues he was not competent to stand trial or plead guilty. He
further argues the trial court violated his right to due process when it
sentenced him without the benefit of mitigation evidence that a
psychiatrist could have provided following an evaluation prior to
sentencing.
¶4 We deny relief. The trial court ordered Alvarez to undergo
examinations to determine his competency pursuant to Rule 11 of the
Arizona Rules of Criminal Procedure prior to trial. The trial court found
Alvarez competent based on the reports of the medical professionals who
examined Alvarez. Alvarez offers no evidence the determination of those
professionals or the finding of the trial court were incorrect, or that his
competency changed afterward.
¶5 Regarding the absence of a presentence psychiatric
evaluation, Alvarez’s counsel hired a Spanish speaking psychiatrist to
examine Alvarez in an effort to obtain and present mitigating evidence for
sentencing purposes. That psychiatrist spent several hours with Alvarez
over the course of three visits. Alvarez, however, refused to cooperate
with the psychiatrist even though his counsel attempted to persuade him
to do so. Therefore, Alvarez has failed to present a colorable claim that
the trial court denied him due process when it sentenced him without the
benefit of a presentence psychiatric evaluation.
¶6 While the petition for review presents additional issues,
Alvarez did not raise those issues in the petition for post-conviction relief
he filed in superior court. A petition for review may not present issues
not first presented to the trial court. State v. Bortz, 169 Ariz. 575, 577, 821
P.2d 236, 238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).
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STATE v. ALVAREZ
Decision of the Court
¶7 For the above reasons, we grant review and deny relief.
:gsh
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