State v. Acuna

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

PHILLIP ANTHONY ACUNA, Petitioner.

No. 1 CA-CR 19-0485 PRPC
FILED 7-7-2020

Petition for Review from the Superior Court in Maricopa County
No. CR2018-005296-001
CR2018-103479-001
The Honorable Jay R. Adleman, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Daniel Strange
Counsel for Respondent

Phillip Anthony Acuna, Florence
Petitioner
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Cynthia J. Bailey joined.

T H U M M A, Judge:

¶1 Petitioner Phillip Anthony Acuna seeks review of the
superior court’s order summarily denying his post-conviction relief (PCR)
petition. See Ariz. R. Crim. P. (Rule) 33.1 Absent an abuse of discretion or
error of law, this court will not disturb a superior court’s ruling on a PCR
petition . State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012). Because Acuna has
shown no such error, this court grants review but denies relief.

¶2 This proceeding arises out of two cases. In CR2018-103479-
001, Acuna pled guilty to burglary in the third degree, a Class 4 felony with
one prior felony conviction. In CR2018-005296-001, Acuna pled guilty to
child abuse, a Class 4 felony. During plea negotiations in ‘5296, a prosecutor
not primarily responsible for Acuna’s case agreed to withdraw a reference
to Arizona Revised Statute (A.R.S.) Section 13-118 in the plea agreement.2
At the change of plea hearing, however, the assigned prosecutor included
the statutory reference in the written agreement.

¶3 Agreeing with the parties’ sentencing stipulations, the
superior court imposed a presumptive four-and-a-half-year prison term for
the burglary conviction to be followed by a lifetime probation grant for the
child abuse conviction. The court also directed the probation department to

1 Although the post-conviction rules were amended effective January 1,

2020, because there were no substantive changes to the rules applicable here
this decision applies the current rules. Similarly, absent material revisions
after the relevant dates, statutes cited refer to the current version unless
otherwise indicated.

2A prosecutor is authorized to allege a defendant’s sexual gratification
motivated the commission of a charged offense that is not a sexual offense.
A.R.S. § 13-118. If the finder of fact concludes the allegation is proven by a
preponderance of evidence, the sentencing judge then has discretion to
require the defendant register as a sex offender. A.R.S. §§ 13-118(B), -
3821(C).

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Decision of the Court

request a hearing no later than Acuna’s prison release date to determine
whether sex offender registration should be required as a condition of
Acuna’s probation.

¶4 Acuna timely filed a PCR petition in both matters. Appointed
PCR counsel filed notices of completion, informing the court that he was
unable to find a colorable claim in either case. Acuna proceeded to
represent himself.

¶5 In Acuna’s subsequent petition, he generally challenged the
condition of probation he claimed required him to register as a sex offender.
In doing so, Acuna specifically raised claims of prosecutorial misconduct
(based on an allegation the prosecutor “induced” Acuna to accept the plea
by agreeing not to require sex offender registration), and ineffective
assistance of counsel (IAC) (based on allegations that counsel failed to
advise Acuna regarding sex offender registration as a possible condition of
probation and then failed to challenge the plea agreement’s inclusion of the
registration requirement). Acuna also asserted the prison library provided
insufficient legal resources, thereby restricting his access to the courts.
Finally, Acuna argued the State’s reference to his prior felonies at
sentencing violated its agreement in the burglary case to dismiss the
allegation of prior convictions. The State responded to Acuna’s petition,
and Acuna filed a reply.

¶6 The superior court summarily dismissed the petition, noting
agreement with arguments in the State’s response and erroneously noting
Acuna had not filed a reply. The court subsequently denied Acuna’s motion
for reconsideration. This timely petition for review followed.

¶7 Acuna first contends the superior court was required to make
express independent findings in its dismissal order as opposed to “merely”
agreeing with the arguments presented in the State’s response. Similarly,
Acuna claims the court violated Rule 33 by failing to consider his reply
brief. Rule 33 does not require the court to detail its findings in summarily
dismissing a PCR petition. See, e.g., Ariz. R. Crim. P. 33.11 (“If, after
identifying all precluded and untimely claims, the court determines that no
remaining claim presents a material issue of fact or law that would entitle
the defendant to relief under this rule, the court must summarily dismiss
the petition.”). And although the court failed to consider Acuna’s reply
before dismissing the petition, it did consider that filing before denying
Acuna’s motion for reconsideration, thereby curing that oversight.

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Decision of the Court

¶8 Acuna next argues his prosecutorial misconduct and IAC
claims were colorable, meaning the court erred by summarily dismissing
them. Both of these claims hinged on Acuna’s voluntariness in accepting
sex offender registration as a condition of probation. The record reflects
that, when Acuna pled guilty, he agreed the court would have discretion at
sentencing whether to order such a condition. See State v. Hamilton, 142 Ariz.
91, 93 (1984) (noting defendant’s statements to the court during a change of
plea colloquy regarding voluntariness are normally binding). Acuna agreed
that he committed the offense for his own sexual gratification. Moreover,
contrary to his assertion, Acuna initialed the handwritten correction to the
child abuse case plea agreement that added the statutory reference to the
sexual motivation allegation, an allegation he knew could ultimately result
in a requirement that he register as a sex offender. Finally, the court did not
impose sex offender registration, but deferred that decision until Acuna is
released from prison. On this record, Acuna’s claims were not colorable,
meaning he had no right to an evidentiary hearing. See State v. Amaral, 239
Ariz. 217, 220 ¶ 11 (2016); see also State v. D’Ambrosio, 156 Ariz. 71, 73 (1988)
(noting defendant is entitled to an evidentiary hearing if he or she presents
a colorable claim.).

¶9 Finally, Acuna repeats his claim regarding his purported lack
of access to the courts. This claim is not cognizable in a PCR proceeding. See
Ariz. R. Crim. P. 33.1.

CONCLUSION

¶10 Because Acuna has not shown the superior court abused its
discretion by summarily dismissing his PCR petition, this court grants
review but denies relief.

AMY M. WOOD • Clerk of the Court
FILED: AA

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