State v. Cervantez, 2 CA-CR 2024-0034-PR (2024)

2 CA-CR 2024-0034-PR

06-24-2024

The State of Arizona, Respondent, v. Timothy Cervantez, Petitioner.

Gary Griffith, Greenlee County Attorney, Clifton Counsel for Respondent Timothy Cervantez, Florence In Propria Persona

O'NEIL, Judge

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).

O'NEIL, Judge

¶1 Petitioner Timothy Cervantez seeks review of the trial court's order summarily dismissing his second petition for post-conviction relief, filed under Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Cervantez has not demonstrated such abuse here.

¶2 After a jury trial, Cervantez was convicted of two counts of aggravated assault and one count of weapons misconduct and sentenced to consecutive prison terms totaling 46.25 years. We affirmed his convictions and sentences on appeal. State v. Cervantez, No. 2 CA-CR 2019-0031 (Ariz. App. Jan. 30, 2020) (mem. decision). Cervantez sought post-conviction relief, and appointed counsel filed a notice of no colorable claims under Rule 32.6(c). Cervantez then filed a pro se petition raising numerous claims, including that the state had suppressed exculpatory body camera footage of the crime scene. Following an evidentiary hearing, the trial court denied Cervantez's petition in December 2022, and Cervantez did not timely seek review of that order.

¶3 Cervantez initiated his second proceeding for post-conviction relief in November 2023. He argued, again, that exculpatory body camera footage exists that would generally undercut his conviction. He also argued Rule 32 counsel had been ineffective in his first proceeding. The trial court summarily dismissed the petition in February 2024. This petition for review followed.

¶4 Cervantez first claims the trial court abused its discretion by dismissing his petition "with no investigation or consideration" and before Cervantez had replied to the state's response. Although the court initially "den[ied] any and all requested relief in any motions and requests" the same day the state filed its response to Cervantez's petition, that order did not reference the petition. Rather, that ruling denied Cervantez's "Motion for Judgment on the Merits," noting that "all matters were resolved" in the December 2022 ruling. Only after Cervantez filed his reply did the court summarily dismiss his petition for post-conviction relief. Thus, Cervantez's claim is not supported by the record. And, in any event, in post-conviction proceedings, the court is entitled to summarily dismiss precluded and untimely claims as well as those that fail to present a material issue of fact or law that would entitle the defendant to relief. Compare Ariz. R. Crim. P. 32.11(a) (discussing summary dismissal), with Ariz. R. Crim. P. 32.13(d)(1) (requiring specific findings of fact and conclusions of law after evidentiary hearing).

¶5 Cervantez also reasserts his claim that the state suppressed favorable body camera footage from the crime scene. The trial court, however, resolved this claim after an evidentiary hearing in his first post-conviction proceeding, finding no evidence that body camera footage existed and "no basis" for Cervantez's claims that the state had deprived him of any information or evidence in his case. Accordingly, Cervantez was precluded from raising this claim in this successive proceeding. See Ariz. R. Crim. P. 32.2(a)(2) ("A defendant is precluded from relief under Rule 32.1(a) based on any ground . . . finally adjudicated on the merits in an appeal or in any previous post-conviction proceeding."). The court therefore did not abuse its discretion in dismissing this claim.

¶6 To the extent Cervantez frames the same issue as an independent claim of newly discovered evidence based on the state's response to his motion for disclosure, the argument fails for three reasons. First, Cervantez did not adequately raise it in his petition for post-conviction relief. See Ariz. R. Crim. P. 32.16(c)(2)(B) (petition for review must contain "statement of issues the trial court decided that the defendant is presenting for appellate review"); State v. Vera, 235 Ariz. 571, ¶ 8 (App. 2014) (we do not consider "issues on review that have not been considered and decided by the trial court"). Second, Cervantez's argument relies on a misstatement of what he requested from the state. He contends body camera footage must exist because a witness at the evidentiary hearing testified that he had mistakenly said he had body camera footage when he meant photographs, but when Cervantez requested those photographs, the state said they did not exist. However, Cervantez's motion for disclosure requested any photographs that had not already been disclosed to him. Because all such photographs had been disclosed, there was nothing new for the state to disclose. Third, any new evidence must have been "in existence at the time of trial but not discovered until after trial." State v. Sanchez, 200 Ariz. 163, ¶ 11 (App. 2001). Here, Cervantez points to the state's response that no photographs exist as the newly discovered evidence. Because that did not exist at the time of trial, the claim is not cognizable.

¶7 Finally, Cervantez reasserts his claim of ineffective assistance of Rule 32 counsel, arguing she "refused to represent" him at the evidentiary hearing in his first post-conviction relief proceeding. Cervantez appears to misapprehend the role of his Rule 32 counsel. After counsel filed a notice of no colorable claims, she was retained only as advisory counsel; thus, she properly stood by while Cervantez represented himself at the evidentiary hearing. She nevertheless offered to answer any legal questions he may have had in advance of the hearing. In any event, because Cervantez does not have a constitutional right to advisory counsel, a claim of ineffective assistance of such counsel is not cognizable. See State v. Russell, 175 Ariz. 529, 534-35 (App. 1993); see also Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (there can be no deprivation of effective assistance if no constitutional right to counsel).

¶8 We grant review but deny relief.