State v. Orozco

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

RONNIE BUSTAMANTE OROZCO, Petitioner.

No. 1 CA-CR 13-0015 PRPC
FILED 4-3-2014

Petition for Review from the Superior Court in Maricopa County
No. CR2011-114544-003
The Honorable Cynthia Bailey, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche

Counsel for Respondent

Ronnie Bustamante Orozco, Buckeye

Petitioner
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Decision of the Court

MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Maurice Portley joined.

N O R R I S, Judge:

¶1 Petitioner Ronnie Bustamante Orozco petitions this court for
review from the dismissal of his petition for post-conviction relief. We
have considered the petition for review and, for the reasons stated, grant
review but deny relief.

¶2 Orozco pleaded guilty to theft and theft of means of
transportation. The superior court sentenced him to a stipulated term of
14 years for the theft offense and eight years for the theft of means of
transportation offense, with the sentences to run concurrently. Orozco
filed an in propria persona petition for post-conviction relief of-right after
his counsel found no colorable claims for relief. See Ariz. R. Crim. P.
32.4(c)(2). The superior court summarily dismissed the petition, and
Orozco now seeks review. We have jurisdiction pursuant to Arizona Rule
of Criminal Procedure 32.9(c).

¶3 Orozco argues he is entitled to post-conviction relief because
his counsel was ineffective by failing to adequately investigate his case.
Orozco asserts that had counsel been more thorough, counsel would have
learned there was neither a warrant for Orozco’s arrest, which Orozco
contends occurred on private property, nor probable cause to make a
warrantless arrest. Orozco relatedly argues the absence of a warrant
invalidates the sufficiency of the factual basis for his pleas.

¶4 “Probable cause to arrest without a warrant exists if the
arresting officer possesses information sufficient to justify a reasonable
and prudent person in believing that a felony has been committed by the
individual arrested.” State v. Valle, 196 Ariz. 324, 330, ¶ 21, 996 P.2d 125,
131 (App. 2000) (citation omitted). Here, the record reveals law
enforcement officers conducted surveillance and observed Orozco operate
a stolen backhoe. Officers later observed Orozco pulling a stolen trailer
behind his truck. When officers tried to pull Orozco over, he ran from
them. Officers later arrested him at the courthouse following a hearing in
another matter. The officers did not need to obtain a warrant because they

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 STATE v. OROZCO
Decision of the Court

had observed Orozco operating stolen equipment. Thus, Orozco’s counsel
did not have a basis to challenge the warrantless arrest and was not
ineffective. We therefore reject Orozco’s argument he is entitled to post-
conviction relief for ineffective assistance of counsel and insufficiency of a
factual basis for his pleas.1

¶5 Orozco also argues he is entitled to post-conviction relief
because of newly discovered evidence. In support of this argument, he
again relies on the absence of a warrant and counsel’s failure to conduct a
thorough investigation as well as the absence of DNA evidence to connect
him to the offenses.

¶6 As already discussed, Orozco’s counsel was not ineffective
in not challenging the warrantless arrest. And, the absence of DNA
evidence is irrelevant. As the superior court correctly noted, “the
warrantless arrest, lack of probable cause and lack of DNA [evidence]
were known to [Orozco] at the time of the plea agreement and therefore
are inappropriate for relief under a newly discovered evidence remedy.”
Accordingly, we reject Orozco’s argument he is entitled to post-conviction
relief because of newly discovered evidence.

¶7 The petition for review presents additional issues, but
Orozco did not raise those issues in his petition for post-conviction relief.
Therefore, we will not address them. See State v. Bortz, 169 Ariz. 575, 577,
821 P.2d 236, 238 (App. 1991) (petition for review may not present issues
not first presented to the superior court); Ariz. R. Crim. P. 32.9(c)(1)(ii).

¶8 For the above reasons, we deny relief.

:MJT

1We also note that at the change of plea hearing, defense
counsel summarized the factual basis for Orozco’s pleas, and he
confirmed its accuracy.

3