State v. Caratachea

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ALEXANDER CARATACHEA, Petitioner.
No. 1 CA-CR 13-0664 PRPC
FILED 9-24-2015
Petition for Review from the Superior Court in Maricopa County
No. CR2007-009027-001
CR2008-006084-001
CR2008-006586-001
CR2008-006591-001
The Honorable Jeanne Garcia, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Susan L. Luder
Counsel for Respondent
Maricopa County Office of the Legal Advocate, Phoenix
By Consuelo M. Ohanesian
Counsel for Petitioner
STATE v. CARATACHEA
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
W I N T H R O P, Judge:
¶1 Petitioner, Alexander Caratachea, petitions this court for
review of the dismissal of his petition for post-conviction relief, filed
pursuant to Rule 32, Ariz. R. Crim. P. After considering the petition for
review, we grant review and deny relief for the reasons stated below.
¶2 This matter involves four consolidated cases in which
Caratachea pled guilty to several counts of armed robbery in 2008. We
detail the procedural history of those cases to give context to our decision.
In case “A,” Caratachea pled guilty to two counts of armed robbery, and
the trial court sentenced him to concurrent terms of twenty-one years’
imprisonment. In case “B,” Caratachea pled guilty to one count of armed
robbery, and the trial court sentenced him to twelve years’ imprisonment.
In case “C,” Caratachea pled guilty to two counts of armed robbery, and the
trial court sentenced him to concurrent terms of thirty-five years’
imprisonment. Finally, in case “D,” Caratachea pled guilty to armed
robbery, and the trial court sentenced him to twelve years’ imprisonment.
The trial court ordered all six sentences to run concurrently.
¶3 Caratachea filed a timely notice of post-conviction relief “of-
right,” but only identified cases A and B in the caption and/or within the
body of the notice. The trial court in turn appointed counsel to represent
Caratachea in those two cases only. Appointed counsel eventually
informed the court that he could find no colorable claims for relief. Shortly
thereafter, Caratachea moved to amend his notice of post-conviction relief
to include all four cases, noting that his omission of cases C and D was an
oversight. Caratachea did not raise any additional issues or provide any
additional argument, but sought only to add those two additional case
numbers. The record on review contains no ruling on this motion.
Regardless, approximately nine months later, in January 2010, the trial
court summarily dismissed the notice after Caratachea failed to file a pro se
petition as ordered by the court. That minute entry referenced only cases
A and B.
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STATE v. CARATACHEA
Decision of the Court
¶4 Caratachea immediately filed a second notice of post-
conviction relief, in which he identified all four cases. In the accompanying
petition, Caratachea raised a number of claims of ineffective assistance of
trial counsel. Among the many claims, Caratachea argued his counsel was
ineffective when he failed to adequately communicate and/or maintain
sufficient contact with Caratachea; when he failed to adequately explain to
Caratachea the State’s cases and the evidence against him; when he failed
to adequately explain and/or timely provide disclosed evidence to
Caratachea despite Caratachea’s requests to see the evidence; and when
counsel failed to adequately communicate with Caratachea about the
State’s plea offers and/or explain those offers to Caratachea. The trial court
summarily dismissed the second post-conviction relief proceedings in
February 2010.
¶5 In June 2011, Caratachea filed his third notice of post-
conviction relief. The caption of that notice identified only cases A and B,
but the accompanying argument addressed case C as well. The trial court
summarily dismissed the notice in August 2011. Several months later,
however, the court granted Caratachea’s motion for reconsideration in part
and allowed Caratachea to proceed with the claim that counsel who
represented Caratachea in his “of-right” post-conviction relief proceeding
was ineffective when he failed to present claims of ineffective assistance of
trial counsel. See State v. Krum, 183 Ariz. 288, 292, 903 P.2d 596, 600 (1995)
(recognizing a defendant has a right to effective assistance of counsel in a
post-conviction of-right proceeding). The court did not find the claim was
timely, but simply allowed Caratachea to proceed. A different judge then
appointed counsel to represent Caratachea, but did so only in cases A and
B as identified in the caption of the notice of post-conviction relief. Ten
months later, counsel moved for appointment in cases C and D as well, and
the court granted the motion.
¶6 Through appointed counsel, Caratachea ultimately filed a
successive petition for post-conviction relief in all four cases. He raised
several claims of ineffective assistance of his post-conviction relief of-right
counsel. The trial court summarily dismissed the petition, and Caratachea
now seeks review. We have jurisdiction pursuant to Arizona Rule of
Criminal Procedure 32.9(c).
¶7 Caratachea contends his post-conviction relief of-right
counsel was ineffective when counsel failed to present claims that
Caratachea’s trial counsel was ineffective when he failed to adequately
communicate and/or maintain sufficient contact with Caratachea; when he
failed to adequately explain to Caratachea the State’s plea offers and the
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STATE v. CARATACHEA
Decision of the Court
evidence against him; and when he failed to adequately explain and/or
timely provide disclosed evidence to Caratachea. Caratachea supports his
claims with information that indicates the State Bar placed Caratachea’s
trial counsel on probation in June 2011 for what Caratachea describes as
similar conduct in another case.1 Caratachea further argues that post-
conviction counsel was aware of his claims because he provided that
counsel with copies of letters he sent to the State Bar, in which he
complained about trial counsel’s conduct even before he accepted the plea
offers.
¶8 We deny relief. Caratachea could have raised these claims in
his second notice and petition for post-conviction relief in 2010. In general,
claims a defendant could have raised in an earlier post-conviction relief
proceeding are precluded. Ariz. R. Crim. P. 32.2(a). None of the exceptions
provided under Rule 32.2(b) apply here. That the trial court allowed the
claims to “proceed” does not mean, as argued by Caratachea, that the
claims are timely or they cannot now be precluded. The same court that
allowed this matter to proceed ultimately determined the claims were
precluded as untimely. Further, any court on review may find an issue is
precluded. Ariz. R. Crim. P. 32.2(c); State v. Peek, 219 Ariz. 182, 183, ¶ 4, 195
P.3d 641, 642 (2008).
¶9 We grant review and deny relief.
:ama
1 Caratachea did not provide copies of any documents from the
disciplinary proceedings, but simply provided information from the State
Bar webpage. Further, that information does not specifically indicate when
the conduct in the other case occurred. Although the information
references three “File Nos.,” the information addresses only one matter and
one client.
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