State v. Parker ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JENNIFER PARKER, Petitioner.
No. 1 CA-CR 15-0800 PRPC
FILED 3-24-16
Petition for Review from the Superior Court in Maricopa County
No. CR2010-113727-001
The Honorable Susan M. Brnovich, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Jones Skelton & Hochuli PLC, Phoenix
By Lori L. Voepel
Counsel for Petitioner
STATE v. PARKER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Randall M. Howe joined.
C A T T A N I, Judge:
¶1 Petitioner Jennifer Parker seeks review of the superior court’s
order dismissing her petition for post-conviction relief. For reasons that
follow, we accept review but deny relief.
FACTS AND PROCEDURAL BACKGROUND
¶2 In July 2010, Parker pleaded guilty to theft, a class 5 felony.
Parker and her family had legally immigrated to the United States in 1993,
and Parker’s written plea agreement noted potential immigration
consequences that could result from a criminal conviction. In particular,
paragraph eight of the agreement provided as follows: “I understand that
pleading guilty or no contest to a crime may affect my immigration status.
Admitting guilt may result in deportation even if the charge is later
dismissed. My plea or admission of guilt could result in my deportation or
removal.”
¶3 Parker initialed this paragraph and, at the change of plea
hearing, acknowledged that she had reviewed and understood the
agreement. It is not clear, however, whether the superior court also orally
advised Parker, as required under Rule 17.2(f) of the Arizona Rules of
Criminal Procedure, that her guilty plea might have immigration
consequences.1
¶4 Although the hearing transcript does not reflect the required
Rule 17.2(f) advisement, the State notes that the Maricopa County Superior
1 Rule 17.2(f) requires the court to advise a defendant who is not a U.S.
citizen that “If you are not a citizen of the United States, pleading guilty or
no contest to a crime may affect your immigration status. Admitting guilt
may result in deportation even if the charge is later dismissed. Your plea
or admission of guilt could result in your deportation or removal, could
prevent you from ever being able to get legal status in the United States, or
could prevent you from becoming a United States citizen.”
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STATE v. PARKER
Decision of the Court
Court generally makes the advisement to groups of defendants before
moving on to plea hearings in individual cases. Although Parker has not
provided a transcript of the group advisement, the transcript of Parker’s
change of plea hearing reflects that the court inquired whether Parker had
been “in court and listening earlier this morning when I went over your
constitutional rights” (to which Parker responded “Yes”) and whether
“When you plead guilty to—or were you in court and listening when I went
over the general possible consequences of pleading guilty to a felony” (to
which Parker again replied “Yes”).
¶5 The superior court deferred acceptance of the plea until
sentencing to allow the State to comply with victim’s rights requirements.
At sentencing in early September 2010, the court accepted Parker’s plea and
placed her on probation. The court advised Parker that “If you disagree
with what I’ve done, you have 90 days from today to file a petition for post-
conviction relief [“PCR petition”]. If you fail to do so, you lose that right.”
¶6 On October 25, 2010, before the end of the 90-day period for
filing a PCR petition, the State charged Parker with another crime, alleging
fraudulent schemes and artifices based on conduct that occurred after
entering the plea but before sentencing in the first case. In May 2011, Parker
pleaded guilty to attempted fraudulent schemes and artifices, a class 3
felony, with a stipulated five-year prison sentence. Her written plea
agreement in the second case contained the same provision regarding
immigration consequences as the written plea agreement in the first case.
It further provided “that if [Parker] is sentenced to prison . . . [in the first
case] it can be concurrent” with the five-year stipulated prison term in the
second case.
¶7 At sentencing in the second case, the prosecutor noted—in
Parker’s presence—that Parker’s counsel “seems to think that [Parker] is
likely to be deported after she gets out of prison.” The court also warned
Parker that “you’ll have to deal with the federal court on deportation. All
I can do is advise you when you have the change of plea that this is going
to have an [e]ffect on your status, but I don’t have any control over it. It’s
another court entirely. You understand that, right?” Parker replied “Yes.”
The court then imposed a five-year prison sentence.
¶8 At that same hearing, the court indicated an intent to leave in
place the probation grant in the first case. Parker’s counsel asked, however,
that the court revoke probation and impose a concurrent 1.5 year prison
sentence. Counsel explained, “I think Ms. Parker would also reject the
probation grant. I do think that’s one of the things with the likely
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STATE v. PARKER
Decision of the Court
immigration consequences that we would face.” Given that request, the
court sentenced Parker to a 1.5-year prison term in the first case, to be
served concurrently with the five-year prison term in the second case. The
court then advised Parker of her rights of review and had Parker sign a
written “Notice of Rights of Review” form explaining those rights,
including the requirement that any PCR petition notice be filed within 90
days. Parker did not file a PCR petition until almost three years later.
¶9 In April 2012, the United States Department of Homeland
Security (“DHS”) filed a Notice to Appear, charging Parker as being subject
to removal for having been convicted of two crimes involving moral
turpitude. Sometime later, DHS filed an additional charge of deportability
based on Parker’s theft conviction “for which the term of imprisonment was
at least one year.” Parker appeared before an immigration judge in January
2013 and March 2014 while still serving her sentences. At the March 2014
proceeding, she appeared with counsel and contested removability.
¶10 In late August 2014, more than 1,000 days after the imposition
of her sentences, and more than 850 days after DHS’s notification that she
was subject to removal, Parker filed her first PCR petition. She alleged as
grounds for relief under Rule 32 of the Arizona Rules of Criminal Procedure
that (1) her guilty plea and conviction were obtained “in violation of Rule
17.2” because she had not been advised of the “ramifications as a non-U.S.
citizen” of her guilty plea, and (2) she received ineffective assistance of
counsel. She claimed that the reason her PCR was untimely was that she
had only recently discovered that the court did not advise her of the
immigration consequences of her plea as required by Rule 17.2(f), and that
this discovery was “new evidence.” She did not argue in her petition, nor
assert in her affidavit attached to her petition, that the failure to timely
commence PCR proceedings was based on counsel’s advice.
¶11 The court summarily dismissed the PCR petition, finding the
claims were precluded because they were not timely presented. Parker
filed an untimely motion to reconsider, arguing her claims were excepted
from preclusion as contemplated by Rule 32.2(b). Rule 32.2(b) provides for
exceptions to preclusion for, among other reasons, claims involving newly
discovered evidence, actual innocence, and for delay claims when the
defendant was not at fault for the delay. Although she referenced Rules
32.1(e) (newly discovered evidence), (f) (delayed PCR), and (h) (actual
innocence), she did not set forth specific facts or argument to support her
claims. Instead, she argued that she was entitled to relief because she “was
not informed of her rights under Rule 17.2(f) by the court, nor did her
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STATE v. PARKER
Decision of the Court
counsel insist that such rights regarding deportation be explained to her by
the court.”
¶12 Before the court ruled on the motion to reconsider, new
counsel appeared on Parker’s behalf and filed a request to amend Parker’s
sentence, or alternatively, to grant the motion to reconsider. In this filing,
Parker argued that because she had been sentenced to a term of at least one
year of imprisonment for the theft conviction, the conviction was an
“aggravated felony” under federal law, for which Parker would be subject
to automatic deportation. She asserted that neither the court, nor her
counsel, had advised her of this consequence. To avoid automatic
deportation, Parker requested that the court amend her sentence in the first
case to 364 days.
¶13 Parker alternatively urged the court to grant the motion to
reconsider. She claimed that her recent discovery that she had not been
advised of the immigration consequences of her guilty plea constituted
newly discovered evidence. She also argued that under Rule 32.2(b), her
claims of actual innocence and delayed PCR were not precluded. Given
these filings, the court ordered the State to file a response.
¶14 Before the State responded, Parker filed a supplement to her
request for an amended sentence, and attached the federal government’s
removal order, dated June 30, 2015, which ordered that Parker be removed
to the United Kingdom.2 Parker again asked the court to amend her
sentence in the first case to 364 days because “at the time Ms. Parker entered
into her plea, neither trial counsel nor the court explained the consequences
of the probation violation case to Ms. Parker. . . . A mere ‘nunc pro tunc’
amendment to the sentence from 1-1/2 years to 364 days would remove it
as an aggravated felony.”
¶15 The State’s response argued that, with the exception of her
claim pursuant to Rule 32.1(f) (delayed PCR), Parker’s claims should have
been raised within 90 days of sentencing. The State asserted that Parker’s
other claims raised due process and ineffective assistance of counsel issues,
which are constitutional claims subject to preclusion if not timely raised.
2 Although the order of removal is based on Parker’s theft conviction,
or “aggravated felony,” the order notes that an immigration judge also
found that the two crimes involved moral turpitude, but that consideration
of this factor would be held in abeyance because “the Court has found
[Parker] removable under the aggravated felony charge, which also
precludes [Parker’s] eligibility for many possible forms of relief.”
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STATE v. PARKER
Decision of the Court
See Ariz. R. Crim. P. 32.1(a), 32.2(a)(3). The State further argued that
Parker’s delayed PCR claim was not colorable, noting that she had been
personally advised on two separate occasions of her right to file a PCR
within 90 days, and that she had signed two “Notice of Rights of Review
after Conviction and Procedure” advisements. The State also pointed out
that Parker had offered no explanation for her failure to timely file her PCR,
and that waiting for DHS to decide whether to deport her was not a basis
to excuse her untimeliness.
¶16 Although Parker’s motion to reconsider was untimely, the
court considered the merits and denied the motion:
Defendant’s PCR was filed over 4 years after her sentencing.
It was untimely. Defendant wants this Court to consider the
claim under Rules 32.1 (e), (f), or (h). Defendant’s argument
under Rule 32.1(e) fails as there is no “newly discovered
material fact” that “would have changed the verdict or
sentence.” She asserts that the newly discovered fact[] is that
she is subject to deportation. That is not a newly discovered
material fact and even if it was, it would not have changed the
verdict or sentence. Defendant knew that she was not a US
citizen at the time that she entered into the first plea
agreement. She also knew that a guilty plea may affect her
immigration status and could result in deportation because it
was in writing in her plea agreement. She initialed the
paragraph indicating that she read it and understood it.
Defendant committed a second offense while awaiting
sentence in her first case. She was again advised that pleading
guilty to a crime could affect her immigration status and may
result in deportation on May 18, 2011 when she entered into
her second plea agreement. Defendant cites no facts to
support relief under Rule 32.1(f) or (h).
The court also denied Parker’s request to amend her sentence in the first
case, finding that it had no authority to do so.
¶17 Parker then filed another motion for rehearing. For the first
time, she claimed that she had not filed a timely PCR based on her prior
counsel’s advice. Parker’s current counsel submitted an attached
declaration in which counsel speculated that Parker’s prior counsel had
“recommended that she not seek independent counsel to consider filing a
Rule 32 petition, perhaps because he was concerned that if she challenged
the plea agreement, some court at a later date could possibly set aside the
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STATE v. PARKER
Decision of the Court
agreement, risking imposition of consecutive prison sentences.” The
motion for rehearing indicated Parker was in custody and that the motion
would be supplemented with Parker’s affidavit or declaration as soon as it
became available.
¶18 A short time later, Parker filed a declaration stating that her
trial counsel did not explain the purpose of post-conviction relief. She also
stated that trial counsel “recommended that I not challenge the state and
the plea agreement, out of concern that the state could come back and run
my sentences consecutively, instead of concurrently.” The court denied the
motion for rehearing, but granted Parker’s request for an extension of time
to file a petition for review. Parker thereafter filed the pending petition for
review.
DISCUSSION
¶19 Parker asserts three bases for relief: (1) “neither her trial
counsel nor the trial court advised her that by pleading guilty to a class five
felony theft . . . she would be subject to automatic deportation if her
probation were ever revoked and she was sentenced to prison,” (2) “neither
her trial counsel nor the trial court advised her that by acquiescing in her
attorney’s request for the court to revoke her probation and instead impose
a 1.5 year prison term . . . she would automatically be deported upon
completion of her prison sentence,” and (3) her failure to timely file a notice
of post-conviction relief within 90 days was without fault on her part. We
review the superior court’s denial of a petition for post-conviction relief for
“a clear abuse of discretion.” State v. Swoopes, 216 Ariz. 390, 393, ¶ 4 (App.
2007).
¶20 Parker’s first two issues present claims for relief under Rule
32.1(a) and as such, Parker was required to present them within 90 days of
sentencing. Ariz. R. Crim. P. 32.4(a). Any claim that could have been raised
in an earlier PCR proceeding is precluded, except for claims raised under
Rule 32.2(b). Ariz. R. Crim. P. 32.4(a); see also State v. Shrum, 220 Ariz. 115,
118, ¶¶ 12–13 (2009) (other than claims excepted under Rule 32.2(b), post-
conviction claim is waived if not timely raised); State v. Peek, 219 Ariz. 182,
183, ¶ 4 (2008) (same). Thus, the court did not abuse its discretion by
denying relief on these claims.
¶21 Parker’s third issue—in which she asserts that her failure to
timely file a notice of post-conviction relief was without fault on her part—
is not time barred. Ariz. R. Crim. P. 32.1(f), 32.2(b). But it is not colorable.
In a similar case, this court explained:
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STATE v. PARKER
Decision of the Court
[Petitioner] is not arguing he was unaware of his right to
petition for post-conviction relief or of the time within which
a notice of post-conviction relief must be filed or that he
intended to challenge the court’s decision but his attorney or
someone else interfered with his timely filing of a notice as
contemplated by Rule 32.1(f). See Ariz. R. Crim. P. 32.1(f) 2007
cmt. Indeed, the trial court informed [Petitioner] that he had
a right to seek post-conviction relief. Rather, his claim is
essentially that, based on information that later came to light,
he regretted having failed to challenge his conviction. Such a
claim is not cognizable under Rule 32.1(f). See Ariz. R. Crim.
P. 32.1(f) 2007 cmt.; cf. State v. Montez, 102 Ariz. 444, 447, 432
P.2d 456, 459 (1967) (“[A] convicted felon may acquiesce in
the advice and decision of counsel not to appeal, so as to make
that decision his. We will not recognize the claim that the
decision of counsel in which he acquiesced deprived him of
the right to counsel . . . so as . . . to permit it to be asserted as
the basis of good cause for a delayed appeal.”) . . . .
State v. Poblete, 227 Ariz. 537, 539–40, ¶ 7 (App. 2011).
¶22 Here, Parker’s claim that she did not timely file a PCR petition
because of her counsel’s advice is likewise not colorable. This claim was
not raised in Parker’s petition for post-conviction relief, or in her first
motion for rehearing. Until that time, Parker claimed she had not timely
initiated PCR proceedings because she had only recently discovered that
the court did not advise her of immigration consequences under Rule 17.2(f)
when the issue arose during an immigration case. Parker did not assert that
her filing delay was based on counsel’s advice until she filed her second
motion for rehearing, and then only supported the assertion with an
unsworn statement.3 On these facts, Parker has not shown that the superior
court abused its discretion by denying relief.
3 Even if presented in the form of an affidavit, a defendant’s self-
serving assertions are generally insufficient to raise a colorable claim. State
v. Wilson, 179 Ariz. 17, 20 (App. 1993); see also State v. Goswick, 142 Ariz. 582,
585 (1984).
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STATE v. PARKER
Decision of the Court
CONCLUSION
¶23 For the foregoing reasons, we grant review but deny relief.
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