State v. Romero ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DENISE NECTALY ROMERO, Petitioner.
No. 1 CA-CR 14-0859 PRPC
FILED 11-17-2016
Petition for Review from the Superior Court in Maricopa County
No. CR2012-135851-008
The Honorable Peter C. Reinstein, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Karen Kemper
Counsel for Respondent
Denise Nectaly Romero, Goodyear
Petitioner
STATE v. ROMERO
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Margaret H. Downie joined.
N O R R I S, Judge:
¶1 Denise Nectaly Romero petitions this court for review of the
superior court’s dismissal of her petition for post-conviction relief. We
grant review, but deny relief.
¶2 Romero pled guilty to possession of narcotic drugs for sale
and sale or transportation of narcotic drugs. In her petition for review,
Romero argues her counsel was ineffective because he failed to (1) file a
motion to sever; (2) provide copies of discovery to her; (3) communicate
with her; (4) convince the State to offer her a better plea deal; and (5) create
a mitigation packet without charging Romero additional fees.
¶3 A plea agreement waives all non-jurisdictional defenses,
errors, and defects which occurred prior to the plea. State v. Moreno, 134
Ariz. 199, 200, 655 P.2d 23, 24 (App. 1982) (citation omitted). The waiver of
non-jurisdictional defects includes alleged deprivations of constitutional
rights, Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed.
2d 235 (1973), and all claims of ineffective assistance of counsel not directly
related to the entry of the plea, State v. Quick, 177 Ariz. 314, 316, 868 P.2d
327, 329 (App. 1994). Here, Romero admitted her guilt at the change of plea
hearing, admitted the factual basis for each count, and informed the court
that she had not been threatened or otherwise coerced into entering the plea
agreement. In seeking post-conviction relief, Romero offered nothing to
suggest her attorney could have persuaded the State to make a plea offer
better than the one she accepted.
¶4 Romero additionally argues, without citation to authority,
that the superior court imposed an illegal, consecutive sentence. Under
Arizona Revised Statutes (“A.R.S.”) section 13-711 (2016),1 however, the
“sentences imposed by the court shall run consecutively unless the court
1This statute has not been amended since May 2012, when the
State alleged Romero began her involvement in the underlying offenses.
Thus, we cite to the current version of the statute.
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STATE v. ROMERO
Decision of the Court
expressly directs otherwise.” Thus, the court did not impose an illegal
sentence.
¶5 Romero next argues the State failed to disclose recordings of
phone conversations. However, the emails Romero attached to her petition
for review show the State disclosed information regarding the phone
conversations to her attorney.
¶6 Romero also argues the superior court should have granted
her post-conviction relief based on her actual innocence. We reject this
argument. See State v. Swoopes, 216 Ariz. 390, 393, ¶ 4, 166 P.3d 945, 948
(App. 2007) (appellate court reviews ruling on post-conviction motion for
abuse of discretion) (citations omitted). Under Ariz. R. Crim. P. 32.1(h), a
defendant claiming actual innocence in a post-conviction petition must
show “by clear and convincing evidence that . . . no reasonable fact-finder
would have found defendant guilty of the underlying offense beyond a
reasonable doubt.” Romero has offered no evidence to support that she was
actually innocent. Indeed, although she downplays her role in the
underlying offenses, she admitted her involvement in the offenses in her
petition for post-conviction relief and her petition for review. Accordingly,
Romero has not met her burden under Rule 32.1(h). See Swoopes, 216 Ariz.
at 404, ¶ 46, 166 P.3d at 959.
¶7 Finally, Romero has raised several arguments in her petition
for review that she did not raise in her petition for post-conviction relief in
the superior court. For example, in her petition for review, she argues the
seriousness of her case necessitated two attorneys. Because Romero failed
to raise these arguments in the superior court, they are not properly before
us. See State v. Ramirez, 126 Ariz. 464, 467, 616 P.2d 924, 927 (App. 1980)
(appellate court does not address argument raised for the first time in a
petition for review); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (requiring a
petition for review to contain “issues which were decided by the trial
court”). We also will not consider any of the arguments she has raised for
the first time in her reply brief. See State v. Watson, 198 Ariz. 48, 51, ¶ 4, 6
P.3d 752, 755 (App. 2000) (citation omitted). Further, we do not review
post-conviction petitions for fundamental error. State v. Smith, 184 Ariz. 456,
459, 910 P.2d 1, 4 (1996).
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STATE v. ROMERO
Decision of the Court
¶8 For the foregoing reasons, the superior court properly
dismissed Romero’s petition for post-conviction relief. Thus, although we
grant review, we deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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