State v. Kisemh ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
WALTER HERBERT KISEMH, Petitioner.
No. 1 CA-CR 17-0719 PRPC
FILED 4-10-2018
Petition for Review from the Superior Court in Yavapai County
No. P1300CR201600220
The Honorable Patricia A. Trebesch, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Yavapai County Attorney’s Office, Prescott
By Danalyn Savage
Counsel for Respondent
Walter Herbert Kisemh, Phoenix
Petitioner
MEMORANDUM DECISION
Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Peter B. Swann and Judge James P. Beene joined.
STATE v. KISEMH
Decision of the Court
T H O M P S O N, Presiding Judge:
¶1 Petitioner Walter Herbert Kisemh petitions this court for
review from the summary dismissal of his petition for post-conviction relief
of-right. We have considered the petition for review and, for the reasons
stated, grant review and deny relief.
¶2 Kisemh pled guilty to aggravated driving under the influence
and taking the identity of another. The superior court sentenced him to
concurrent terms of six years’ imprisonment for each count. Kisemh filed a
pro se petition for post-conviction relief of-right after his counsel found no
colorable claims for relief. The superior court summarily dismissed the
petition and Kisemh now seeks review. We have jurisdiction pursuant to
Arizona Rule of Criminal Procedure 32.9(c) and Arizona Revised Statutes
(A.R.S.) section 13-4239(C) (2010).
¶3 In his petition for review, Kisemh argues his first trial counsel
was ineffective when counsel failed to challenge the grand jury
proceedings. Kisemh contends counsel should have challenged the
proceedings based on the alleged absence of evidence to support the
indictment. 1 He further argues his first counsel should have discussed
challenging the grand jury proceedings with Kisemh’s subsequent counsel
even though his first counsel no longer represented Kisemh.
¶4 We deny relief because Kisemh waived these issues when he
pled guilty. A plea agreement waives all non-jurisdictional defenses, errors
and defects which occurred prior to the plea. State v. Moreno, 134 Ariz. 199,
200 (App. 1982). The waiver of non-jurisdictional defects includes
deprivations of constitutional rights. Tollett v. Henderson, 411 U.S. 258, 267
(1973) (“A guilty plea represents a break in the chain of events which has
preceded it in the criminal process. When a criminal defendant has
solemnly admitted in open court that he is in fact guilty of the offense with
which he is charged, he may not thereafter raise independent claims
relating to deprivation of constitutional rights that occurred prior to the
entry of the guilty plea.”). Further, the waiver includes all claims of
ineffective assistance of counsel not directly related to the entry of the plea.
State v. Quick, 177 Ariz. 314, 316 (App. 1993). The claim that counsel failed
to challenge a grand jury proceeding is not directly related to the entry of a
plea.
1Kisemh’s first trial counsel withdrew with Kisemh’s consent after they
were unable to overcome their disagreements regarding trial strategy.
2
STATE v. KISEMH
Decision of the Court
¶5 Finally, Kisemh makes a cursory argument that his pleas were
not knowing, intelligent and voluntary because of his first counsel’s failure
to challenge the grand jury proceedings. We deny relief on this issue as
well. First, Kisemh did not raise this issue in his petition for post-conviction
relief below. While Kisemh raised this new issue in the reply below, a
defendant may not amend a petition for post-conviction relief to raise new
issues absent leave of court upon a showing of good cause. Ariz. R. Crim.
P. 32.6(c). The superior court did not grant Kisemh leave to amend the
petition with this new issue and did not address it. 2 A superior court may
refuse to consider new issues and arguments first raised in a reply in
support of a petition for post-conviction relief. State v. Lopez, 223 Ariz. 238,
240, ¶ 7 (App. 2009). Second, Kisemh cannot claim his pleas were
involuntary based on counsel’s failure to raise an issue Kisemh waived.
¶6 We grant review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
2In its conclusion, the court made a generic reference that its review of the
overall record showed Kisemh’s pleas were knowing, intelligent and
voluntary. The court did not address Kisemh’s new claim that Kisemh’s
pleas were involuntary based on counsel’s alleged inaction.
3