State v. Calvillo ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOSUE ESTRADA CALVILLO, Petitioner.
No. 1 CA-CR 19-0239 PRPC
FILED 9-1-2020
Petition for Review from the Superior Court in Maricopa County
No. CR2013-003405-001
The Honorable William R. Wingard, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Respondent
Josue Estrada Calvillo, Florence
Petitioner
STATE v. CALVILLO
Decision of the Court
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.
W E I N Z W E I G, Judge:
¶1 Josue Estrada Calvillo petitions this Court to review the
dismissal of his petition for post-conviction relief (“PCR”). We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.
¶2 Petitioner pled guilty to one count of sexual conduct with a
minor, a class 2 felony, and two counts of attempted child molestation, class
3 felonies. See A.R.S. §§ 13-1405, -1410. The superior court imposed a
twenty-year sentence for the sexual conduct charge plus concurrent lifetime
probation terms for the attempted molestation charges, to run
consecutively to the prison term. By entering a guilty plea, Petitioner
waived all non-jurisdictional defenses, errors and defects before the plea.
State v. Flores, 218 Ariz. 407, 409-10, ¶ 6 (App. 2008).
¶3 Petitioner timely requested post-conviction relief and the
superior court appointed defense counsel to represent him. PCR counsel
found no colorable issues to raise after reviewing the record and
considering Petitioner’s input. Petitioner then moved for post-conviction
relief pro se in the superior court, challenging only his conviction for sexual
conduct with a minor. He argued that insufficient evidence supported his
conviction because the State suppressed exculpatory evidence in violation
of Brady v. Maryland, 373 U.S. 83 (1963), pointing to an undisclosed (1)
medical report finding “no signs of genital injury or trauma” to the victim
and (2) transcript of a call between Petitioner’s wife and a family member.
Petitioner did not otherwise challenge the factual basis supporting his
conviction for sexual conduct with a minor. See State v. Ovante, 231 Ariz.
180, 184, ¶ 12 (2013) (“Before accepting a plea, a court must establish a
factual basis for each element of the crime.”); Ariz. R. Crim. P. 17.3(b). He
also claimed ineffective assistance of counsel for failure to investigate this
previously undisclosed evidence. The superior court summarily dismissed
his petition.
2
STATE v. CALVILLO
Decision of the Court
¶4 Summary dismissal is appropriate unless the petitioner states
a colorable claim, State v. Kolmann, 239 Ariz. 157, 160, ¶ 8 (2016), meaning
the claim, if true, “might have changed the outcome,” State v. Runningeagle,
176 Ariz. 59, 63 (1993). We review the superior court’s denial of relief for
an abuse of discretion. State v. Amaral, 239 Ariz. 217, 219, ¶ 9 (2016). We
find no abuse here.
Brady Claim
¶5 The State violates “a defendant’s right to due process [under
Brady] if it withholds evidence that is favorable to the defense and material
to the defendant’s guilt.” See Smith v. Cain, 565 U.S. 73, 75 (2012); State v.
Benson, 232 Ariz. 452, 460, ¶ 24 (2013) (same). Evidence is “material” if
“there is a reasonable probability that, had the evidence been disclosed, the
result of the proceeding would have been different.” Smith, 565 U.S. at 75
(quoting Cone v. Bell, 556 U.S. 449, 470 (2009)).
¶6 Petitioner fails to present a colorable Brady claim for two
reasons. First, pleading defendants waive all non-jurisdictional defects
antedating the plea, Flores, 218 Ariz. at 409-10, ¶ 6, including any pretrial
Brady violations, State v. Reed, 121 Ariz. 547, 548 (App. 1979).
¶7 Second, the undisclosed documents were neither exculpatory
nor material. Because Petitioner’s conviction for sexual conduct with a
minor arose from masturbatory contact (“rubbing”), not penetration, the
lack of physical trauma to the victim’s genitals does not negate his guilt.
And the call transcript only reflects that Petitioner denied the crime to his
wife, which does not establish Petitioner’s innocence or disprove any
element of sexual conduct with a minor. See A.R.S. § 13-1405(A). As such,
Petitioner has not shown a reasonable probability that disclosure of the
medical report or transcript would have led him to reject a plea offer and
proceed to trial. See Benson, 232 Ariz. at 460, ¶ 24.
Ineffective Assistance of Counsel
¶8 Petitioner likewise fails to present a colorable claim for
ineffective assistance of counsel. A petitioner “may obtain post-conviction
relief on the basis that counsel’s ineffective assistance led [him] to make an
uninformed decision to accept or reject a plea bargain.” State v. Banda, 232
Ariz. 582, 585, ¶ 12 (App. 2013). To state a colorable claim, the petitioner
“must show both that counsel’s performance fell below objectively
reasonable standards and that this deficiency prejudiced [him].” State v.
Bennett, 213 Ariz. 562, 567, ¶ 21 (2006).
3
STATE v. CALVILLO
Decision of the Court
¶9 Petitioner cannot show that counsel’s performance was
deficient during plea negotiations, Runningeagle, 176 Ariz. at 63, meaning
that counsel “either (1) gave erroneous advice or (2) failed to give
information necessary to allow the petitioner to make an informed decision
whether to accept the plea.” State v. Donald, 198 Ariz. 406, 413, ¶ 16 (App.
2000). Petitioner suggests his counsel was deficient because he never
discovered the medical report or call transcript. Aside from our
determination that this evidence was neither exculpatory nor material,
defense counsel cannot reasonably be expected to explore possible defenses
based on an investigation of undisclosed evidence. See Kolmann, 239 Ariz.
at 160, ¶ 9 (We ask whether counsel’s assistance was “reasonable under
prevailing professional norms, ‘considering all the circumstances.’”)
(quoting Hinton v. Alabama, 571 U.S. 263, 273 (2014)). Petitioner therefore
cannot show prejudice either. See State v. Bowers, 192 Ariz. 419, 424, ¶ 19
(App. 1998) (The prejudice requirement “is satisfied when a petitioner
demonstrates a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.”)
(internal quotation marks omitted) (quoting Hill v. Lockhart, 474 U.S. 52, 59
(1985)).
¶10 Nor did Petitioner “specify the acts or omissions of counsel
that allegedly constitute ineffective assistance [of counsel].” State v.
Santanna, 153 Ariz. 147, 149 (1987); Donald, 198 Ariz. at 413, ¶ 17 (To
establish a colorable claim, petitioner must “present more than a conclusory
assertion” and “should support [his] allegations by sworn statements or
provide a satisfactory explanation of their absence.”). Petitioner only
asserts that counsel conducted “no investigation” and failed to “challenge
any part of the [S]tate’s case on material [or] constitutional grounds.” Cf.
State v. Pandeli, 242 Ariz. 175, 180-83, ¶¶ 2, 9, 22 (2017) (PCR counsel
asserted fifteen specific IAC claims, including failure to cross-examine the
State’s key witness and failure to present petitioner’s brain imaging scans.).
Petitioner’s inability to articulate his claim or specify why counsel’s efforts
were deficient is fatal. See State v. Leyva, 241 Ariz. 521, 526, ¶ 13 (App. 2017)
(“[A] challenge to plea proceedings is subject to summary dismissal when
based on ‘conclusory allegations unsupported by specifics’ or on
‘contentions that in the face of the record are wholly incredible.’”) (quoting
Blacklege v. Allison, 431 U.S. 63, 74 (1977)).
¶11 Lastly, Petitioner does not allege he was induced to plead
guilty by promises or threats, and this court has rejected his “coercion”
theory. Leyva, 241 Ariz. at 526, ¶¶ 14, 16 (A defendant “will feel ‘coerced’
in the lay sense of the word by an attorney’s recommendation to plead
guilty, but defense counsel’s . . . honest but negative assessment of
4
STATE v. CALVILLO
Decision of the Court
[petitioner’s] chances at trial does not constitute improper behavior or
coercion that would suffice to invalidate a plea.”) (alteration in original)
(internal quotation marks omitted) (quoting United States v. Juncal, 245 F.3d
166, 172-74 (2d Cir. 2001)).
¶12 We therefore grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
5