State v. Odette ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ALEXANDER DUANE ODETTE, Petitioner.
No. 1 CA-CR 19-0090 PRPC
FILED 9-10-2019
Petition for Review from the Superior Court in Maricopa County
No. CR2016-124829-001
The Honorable Sherry K Stephens, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Lisa Marie Martin
Counsel for Respondent
Alexander Duane Odette, Florence
Petitioner
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Chief Judge Peter B. Swann joined.
STATE v. ODETTE
Decision of the Court
T H U M M A, Judge:
¶1 Alexander Duane Odette petitions this court for review from
the summary dismissal of his petition for post-conviction relief filed
pursuant to Arizona Rule of Criminal Procedure 32. Having considered the
petition for review, this court grants review but denies relief.
¶2 Odette pled guilty to sexual conduct with a minor and two
counts of attempt to commit sexual conduct with a minor. Consistent with
the parties’ stipulations in the plea, the superior court imposed a slightly
mitigated 19-year prison sentence on the completed offense and lifetime
probation on the attempt convictions.
¶3 Odette timely sought post-conviction relief. After reviewing
the file and conferring with Odette, appointed counsel found no colorable
claim for relief. Odette proceeded as a self-represented litigant and
challenged the indictment and grand jury proceedings. Odette also argued
his sentence was improperly aggravated, a confrontation call recording was
inadmissible, and ineffective assistance of counsel during plea and post-
conviction relief proceedings. The State filed its response at 12:20 a.m. the
day after it was due. Referring to the State’s untimeliness, Odette
unsuccessfully moved to preclude the response. The court later dismissed
Odette’s petition, and this timely petition for review followed.
¶4 This court reviews the summary dismissal of a post-
conviction relief proceeding for an abuse of discretion. State v. Bennett, 213
Ariz. 562, 566 ¶ 17 (2006). Odette bears the burden of establishing an abuse
of discretion. State v. Poblete, 227 Ariz. 537, 538 ¶ 1 (App. 2011).
¶5 Odette first challenges the denial of his motion to preclude the
State’s response. Although Odette generally complains that the court
violated his constitutional rights by not precluding the untimely response,
he cites no supporting authority, and he does not explain how the State’s
20-minute tardiness prejudiced him. To the extent Odette asserts he was
automatically entitled to post-conviction relief based on the State’s late
response, the law does not support that assertion. See State v. Cawley, 133
Ariz. 27, 29 (App. 1982) (noting State’s failure to file a response “requires
no explanation and the trial court is not bound to grant [relief to a
petitioner] just because the State failed to respond”).
¶6 The court also did not err in dismissing Odette’s claims
regarding the propriety of the indictment and grand jury proceeding.
Because he pled guilty, Odette waived those challenges. See State v. Moreno,
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STATE v. ODETTE
Decision of the Court
134 Ariz. 199, 200 (App. 1982) (“[B]y entering a plea of guilty [petitioner]
relinquished his right to assert on appeal all nonjurisdictional defenses,
errors and defects occurring prior to the plea proceedings.”), disapproved of
on other grounds by State ex rel. Dean v. Dolny, 161 Ariz. 297 (1989); see also
United States v. Cotton, 535 U.S. 625, 630-31 (2002) (noting defects in an
indictment are not “jurisdictional” and do not deprive a court of its power
to adjudicate a case).
¶7 Similarly unavailing are Odette’s claims of ineffective
assistance of counsel based on a failure to challenge the indictment before
the guilty plea. See State v. Banda, 232 Ariz. 582, 585 ¶¶ 12-13 (App. 2013)
(guilty plea waives ineffective assistance of counsel claims except for those
“that relate to the validity of the plea”); State v. Quick, 177 Ariz. 314, 316
(App. 1993) (ineffective assistance of counsel claim is limited to “matters
directly relating to the entry of a guilty plea [not] allegedly deficient
performance as to other aspects of the representation”).
¶8 Because Odette fails to show the superior court abused its
discretion by dismissing his petition, this court grants review but denies
relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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