State v. Urosevic ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MILOVAN RAJKO UROSEVIC, Petitioner.
No. CR 13-0787 PRPC
FILED 4-21-2016
Petition for Review from the Superior Court in Maricopa County
No. CR 2006-007094-001
The Honorable Carolyn K. Passamonte, Commissioner
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By E. Catherine Leisch
Counsel for Respondent
Milovan Rajko Urosevic, Eloy
Pro Se Petitioner
STATE v. UROSEVIC
Decision of the Court
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Maurice Portley joined.
N O R R I S, Judge:
¶1 Milovan Rajko Urosevic seeks review of the superior court’s
summary dismissal of his petition for post-conviction relief filed pursuant
to Arizona Rule of Criminal Procedure 32, arguing the superior court
should have allowed him to withdraw his guilty plea because it improperly
sentenced him in a different case and because his trial counsel was
ineffective. We have considered his petition for review and grant review,
but deny relief.
FACTS AND PROCEDURAL BACKGROUND
¶2 In this case (“drug possession case”), Urosevic pleaded guilty
to possession or use of dangerous drugs (methamphetamine), a Class 4
felony, in exchange for dismissal of two other counts and sentence
enhancement allegations pursuant to a plea agreement. The plea
agreement provided that he would be placed on supervised probation,
consecutive to a four-month prison term for aggravated DUI in another case
(“DUI case”), in which he had also entered into a plea agreement. 1
¶3 Accordingly, on December 20, 2010, the superior court
suspended Urosevic’s sentence in the drug possession case and placed him
on supervised probation for three years to begin upon discharge from
prison in the DUI case and concurrent to a term of probation for a separate
aggravated domestic violence conviction. 2 The superior court, however,
imposed a 2.5-year prison term in the DUI case rather than the four-month
1Maricopa County Superior Court Cause No. CR 2005-123523-
001.
2Maricopa County Superior Court Cause No. CR 2005-141996-
001.
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STATE v. UROSEVIC
Decision of the Court
term. At sentencing, neither Urosevic nor his counsel objected to the
sentences imposed by the superior court.
¶4 On December 12, 2012, Urosevic petitioned pro per for post-
conviction relief in the drug possession case, 3 arguing the superior court
failed to follow the terms of his plea agreement in the DUI case regarding
the prison sentence imposed in the DUI case and thus he should be
permitted to withdraw both guilty pleas. In response, the State argued the
superior court should summarily dismiss the petition. Conceding that
Urosevic had been incorrectly sentenced in the DUI case, the State argued,
however, that this mistake did not entitle him to relief in the drug
possession case, especially since it had agreed that he should be resentenced
in the DUI case.
¶5 On May 20, 2013, while his first petition for post-conviction
relief was still pending a decision, Urosevic filed a second notice of post-
conviction relief/amendment to the first petition and claimed ineffective
assistance of trial counsel based on his lawyer’s alleged failure to advise
him that his guilty plea to possession of dangerous drugs would result in a
deportation order. He alleged that if he had been aware of this
consequence, he would never have agreed to plead guilty.
¶6 On July 8, 2013, the superior court summarily dismissed
Urosevic’s petition for post-conviction relief, ruling that he had failed to
state a colorable claim for relief with respect to either his erroneous sentence
claim or his ineffective assistance of counsel claim. After the superior court
denied his motion for reconsideration, Urosevic petitioned for review.
DISCUSSION
I. Withdrawal of Guilty Plea
¶7 The sentence imposed by the superior court in the DUI case
does not provide a basis for withdrawal of the guilty plea entered in the
drug possession case. Any relief for the sentencing error in the DUI case is
properly obtained in that case rather than here. Indeed, the superior court
in the DUI case has resentenced Urosevic in accordance with the terms of
3On June 13, 2012, Urosevic’s appointed counsel in the post-
conviction proceeding filed a notice stating that after completing her
review, she could not find any claims for relief to raise on Urosevic’s behalf.
The superior court thereafter granted Urosevic leave to file a pro per
petition.
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STATE v. UROSEVIC
Decision of the Court
the plea agreement. Thus, the sentencing error he raises here has now been
corrected.
¶8 Moreover, Urosevic’s reliance on the terms of the plea
agreements in claiming that the sentencing error in the DUI case entitles
him to withdraw his guilty plea in this case is misplaced. Even if we accept
the two plea agreements were part of a “global resolution,” they provided
for withdrawal only if the superior court rejected the plea agreements. See
Ariz. R. Crim. P. 17.4(e); State v. Hawkins, 134 Ariz. 403, 405, 656 P.2d 1264,
1266 (App. 1982) (“Where a plea agreement or a provision of the agreement
is rejected by the trial court, it is obliged to give the defendant an
opportunity to withdraw the plea.”) Here, the superior court did not reject
the plea agreements or any of their terms. The superior court simply made
a mistake as to the sentence permitted under the plea agreement in the DUI
case. Thus, we cannot say the superior court abused its discretion in
denying Urosevic’s request that he be allowed to withdraw from his plea
agreement in the drug possession case. State v. Schrock, 149 Ariz. 433, 441,
719 P.2d 1049, 1057 (1986) (superior court’s ruling on a petition for post-
conviction relief reviewed for abuse of discretion).
II. Ineffective Assistance of Counsel
¶9 Urosevic is not entitled to relief for ineffective assistance of
counsel, even if we were to accept his unsworn allegations as true.
¶10 A counsel’s failure to inform a client whether the guilty plea
carries a risk of deportation constitutes deficient performance under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 1486-87, 176 L. Ed. 2d
284 (2010). To state a colorable claim of ineffective assistance of counsel,
however, a defendant must show both deficient performance and
prejudice. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; State v. Nash, 143
Ariz. 392, 397, 694 P.2d 222, 227 (1985). If a defendant fails to make a
sufficient showing on either prong of the Strickland test, the court need not
determine whether the other prong was satisfied. State v. Salazar, 146 Ariz.
540, 541, 707 P.2d 944, 945 (1985).
¶11 Here, regardless of whether his lawyer informed him about
the risk of deportation, before accepting his guilty plea, the superior court
specifically informed Urosevic at the sentencing hearing that admitting
guilt could result in his deportation or removal. See State v. Lemieux, 137
Ariz. 143, 146, 699 P.2d 121, 124 (App. 1983) (court views allegations in
petition in light of the entire record to determine if a claim is colorable).
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And, Urosevic told the superior court he understood the risk and was
“ready to proceed [] anyway.” Accordingly, Urosevic cannot satisfy the
prejudice prong for establishing a colorable claim of ineffective assistance
of counsel.
CONCLUSION
¶12 For the foregoing reasons, we grant review but deny relief.
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