State v. Botello-Rangel

248 Ariz. 429

461 P.3d 449

STATE of Arizona, Respondent,

v.Sergio BOTELLO-RANGEL, Petitioner.

No. 1 CA-CR 19-0332 PRPC

Court of Appeals of Arizona, Division 1.

FILED February 25, 2020

Navajo County Attorney’s Office, Holbrook, By Michael R. Shumway, Counsel for Respondent

Aspey Watkins & Diesel, PLLC, Flagstaff, By Kathryn G. Mahady, Counsel for Petitioner

Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Samuel A. Thumma and Jennifer M. Perkins joined.

McMURDIE, Judge:

¶1 Petitioner Sergio Botello-Rangel seeks review from the superior court’s dismissal of his petition for post-conviction relief under Arizona Rule of Criminal Procedure ("Rule") 33.1.¹ We grant review but deny relief, holding: (1) a defendant waives a claim of ineffective assistance of counsel under Rule 33.1(a) by failing to raise the claim in a timely manner; (2) Rule 33.1(e) does not encompass a claim of newly discovered evidence of ineffective assistance of counsel or involuntary guilty plea, and is instead restricted to newly discovered material facts that probably would have changed the judgment or sentence; and (3) a defendant waives a claim of newly discovered evidence by failing to raise it within a reasonable time after discovering the factual predicate for the claim.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2008, the State charged Botello-Rangel with transportation of marijuana and possession of marijuana for sale of approximately 86 pounds of the drug. In January 2009, Botello-Rangel pled guilty. Under the terms of his plea agreement, Botello-Rangel would plead guilty to an amended count of conspiracy to transport marijuana for sale, and the more serious charges would be dismissed. The plea agreement stipulated that Botello-Rangel would be placed on probation with all terms and conditions of probation to be imposed at the discretion of the court.

¶3 The court engaged Botello-Rangel in a colloquy at the change-of-plea hearing:

THE COURT: When you enter this plea of guilty you’ll also be giving up certain Constitutional rights, which [are] listed in paragraph 12 for you.

THE DEFENDANT (through the Interpreter): Yes.

THE COURT: You’ll be giving up the right to have a trial by jury. You give up the right for the jury to decide your innocence or guilt. You give up the right for the jury to decide any aggravating factors in your sentence. You give up the right to have the state prove that you are guilty of this crime beyond a reasonable doubt. You give up the right to have an attorney assist you at the trial. You give up the right for you or your attorney to ask questions of the people that are accusing you of this crime. You give up the right to present witnesses or defenses that you might have. You give up the right to testify yourself or to remain silent, and you give up the right to appeal. Do you understand that you have these Constitutional rights and that you are giving them up today when you make this plea of guilty?

THE DEFENDANT (through the Interpreter): Yes.

THE COURT: If you are not a citizen of the United States, pleading guilty to a crime may affect your immigration status and may result in deportation. Do you understand that?

THE DEFENDANT (through the Interpreter): Yes.

The State provided the following factual basis for the guilty plea:

[THE STATE]: On September 22^nd, 2008, on Interstate 40 near Holbrook, Mr. Rangel was stopped in a pickup truck which he was driving. The pickup truck was, what is commonly referred to as a lifted truck, one that sits up high, and it did not have mud flaps in compliance with Arizona law. A subsequent search of the pickup revealed 86 pounds of hydroponic marijuana concealed in a false compartment in a freshly added auxiliary gas tank. The value of the marijuana, according to the drug interdiction Officer Dean McMains, was in excess of—wholesale in excess of $172,000, and retail in excess of $344,000. Based on the value of the drugs it’s the state’s position that Mr. Rangel was working for other people when he was transporting this marijuana through Navajo County, and that they had conspired to do so ....

THE COURT: And it’s based on the amount also that it’s for sale, right?

[THE STATE]: Yes, sir.

THE COURT: Mr. Rangel, is this true, and is this why you are pleading guilty to this crime?

THE DEFENDANT (through the Interpreter): Yes.

The court accepted the plea and later placed Botello-Rangel on five years of supervised probation. He completed his probation in February 2014.

¶4 Before he finished his probation, in December 2013, the federal government served a notice of removal from the United States on Botello-Rangel because of the criminal conviction in this case. The notice stated his criminal conviction was an aggravated felony conviction under federal law, meaning he was not eligible for any form of relief from deportation. In June 2018, more than four years after his probation terminated, Botello-Rangel filed a notice of post-conviction relief. Although he initially only raised a claim for failing to file a timely notice without fault under Rule 33.1(f), eventually Botello-Rangel raised three substantive claims: (1) ineffective assistance of counsel because counsel "did not advise him that there would be immigration consequences to his guilty plea"; (2) involuntary guilty plea because he "entered a guilty plea without any knowledge that his plea would directly affect his immigration status"; and (3) the existence of newly discovered material facts that supported claims 1 and 2. Botello-Rangel requested that his conviction be vacated. The newly discovered material facts alleged were the December 2013 notice of removal and the initiation of removal proceedings against him because of his conviction. After an evidentiary hearing on the petition, the court denied relief. Botello-Rangel petitioned for review, and we have jurisdiction under Arizona Revised Statutes ("A.R.S.") section 13-4239(C) and Rule 33.16.

DISCUSSION

¶5 We review the superior court’s denial of post-conviction relief for an abuse of discretion, State v. Gutierrez , 229 Ariz. 573, 577, ¶ 19, 278 P.3d 1276, 1280 (2012), but review the interpretation of the Arizona Rules of Criminal Procedure de novo , State v. Mendoza , 248 Ariz. 6, 14–15, ¶ 12, 455 P.3d 705 (App. 2019). Post-conviction relief "is applied quite restrictively to overturn guilty pleas," primarily because by pleading guilty, a defendant waives all non-jurisdictional defenses. State v. Fritz, 157 Ariz. 139, 140, 755 P.2d 444, 445 (App. 1988). To be eligible for post-conviction relief, a defendant must strictly comply with the post-conviction rules. Canion v. Cole , 210 Ariz. 598, 600, ¶ 11, 115 P.3d 1261, 1263 (2005) ; State v. Carriger, 143 Ariz. 142, 146, 692 P.2d 991, 995 (1984) ("Petitioners must strictly comply with Rule 32 or be denied relief.").

¶6 In his petition for review, Botello-Rangel raises the same three claims he raised in his petition for post-conviction relief. But Botello-Rangel has not complied with the applicable post-conviction relief procedures to obtain relief.

A. Botello-Rangel Waived the Right to Raise Claims Regarding the Effectiveness of His Attorney and the Voluntariness of His Plea by Failing to File Timely for Post-Conviction Relief.

¶7 Under Rules 33.1(a) and 33.4, a defendant must file a notice of post-conviction relief within 90 days of the sentence to assert a claim that the plea was obtained in violation of the United States or Arizona constitutions. See A.R.S. § 13-4234(G) (time limits for filing a notice and petition "are jurisdictional, and an untimely filed notice or petition shall be dismissed with prejudice"); State v. Lopez , 234 Ariz. 513, 515, ¶ 8, 323 P.3d 1164, 1166 (App. 2014) (time requirement to bring a claim "is not based on waiver, but instead on the defendant’s timeliness in seeking relief"); accord State v. Spreitz, 202 Ariz. 1, 2, ¶ 4, 39 P.3d 525, 526 (2002) (as a general rule, when "ineffective assistance of counsel claims ... could have been raised, in a Rule 32 post-conviction relief proceeding, subsequent claims of ineffective assistance will be deemed waived and precluded" (emphasis added)).

¶8 If a defendant fails to file a timely notice, he or she is precluded from raising claims under Rule 33.1(a) and may only raise claims under Rule 33.1(b) through (h). Ariz. R. Crim. P. 33.4(b)(3)(B) (non-precluded claims must be brought within a reasonable time after discovering the basis for the claim); Ariz. R. Crim. P. 33.2(b)(1) (defendant must explain why non-precluded claims were raised in an untimely manner); A.R.S. § 13-4232(B) (listing claims that are not precluded); A.R.S. § 13-4234(G). Here, the parties agree that Botello-Rangel filed for post-conviction relief in an untimely manner. Therefore, he may only raise non-precluded claims. Ariz. R. Crim. P. 33.4(b)(3)(A); A.R.S. § 13-4232(B).

¶9 Under the statute and rule, Botello-Rangel is precluded from raising his claims for ineffective assistance of counsel and involuntary guilty plea. Ariz. R. Crim. P. 33.1(a) ; Ariz. R. Crim. P. 33.4(b)(3)(A); A.R.S. § 13-4234(G). Botello-Rangel attempts to avoid preclusion of these two claims by arguing that he has "newly discovered evidence" of his counsel’s ineffective assistance during the plea proceedings that rendered his "plea involuntary." Botello-Rangel cannot use these grounds to escape the rule barring his ineffective assistance and involuntary guilty plea claims.

¶10 A claim of ineffective assistance of counsel is not cognizable as a non-precluded claim because it is recognized under Rule 33.1(a). See State v. Petty , 225 Ariz. 369, 373, ¶ 11, 238 P.3d 637, 641 (App. 2010) ; see also Ariz. R. Crim. P. 33.1(a) cmt. (noting claims of ineffectiveness of counsel and violations of other constitutional rights fall under this subsection). This court has consistently found that claims of ineffective assistance of counsel cannot be raised in an untimely proceeding. See, e.g. , Petty , 225 Ariz. at 373, ¶ 11,...