State v. Tolano

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUAN MANUEL TOLANO, Petitioner.

No. 1 CA-CR 20-0551 PRPC
FILED 1-4-2022

Petition for Review from the Maricopa County Superior Court
No. CR2016-002031-001, CR2014-006097-001
The Honorable Gregory Como, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Respondent

Juan Manuel Tolano, Tucson
Petitioner
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the court, in which
Judge David D. Weinzweig and Judge Paul J. McMurdie joined.

S W A N N, Judge:

¶1 Juan Manuel Tolano petitions this court for review from the
dismissal of his petition for post-conviction relief filed under Arizona Rule
of Criminal Procedure 33.1. For the following reasons, we grant review but
deny relief.

¶2 The state charged Tolano, by indictments filed in 2014 and
2016, with committing multiple assaults (CR2014-006097-001) and drug
crimes (CR2016-002031-001). In 2017, Tolano accepted plea offers in both
cases. In the 2014 case, he pleaded guilty to committing aggravated assault
by injuring his minor nephew. In the 2016 case, he pleaded guilty to
possessing methamphetamine, a dangerous drug.

¶3 The superior court sentenced Tolano to one year
imprisonment for each conviction. It awarded him 365 days of presentence
incarceration credit toward each sentence and ordered the sentences to run
concurrently with one another and with a sentence imposed in a third case
(CR2014-133407-001) that is not a part of this proceeding.

¶4 Tolano filed an untimely notice of post-conviction relief,
arguing that his failure to file a timely petition was not his fault. Tolano
alleged that he was transferred facilities and did not have access to legal
materials to file the notice in a timely manner. The superior court appointed
counsel to represent him in his petition for post-conviction relief. After
Tolano’s attorney stated he could find no viable claim to pursue in either
case, Tolano filed a petition for post-conviction relief in propria persona.

¶5 With respect to the 2014 assault case, Tolano asserted he was
selectively prosecuted in violation of his right to equal protection. Tolano
also argued that defense counsel provided ineffective assistance by not
reviewing discovery materials—which allegedly revealed evidence of
Tolano’s discriminatory treatment and credibility issues on the part of
victims and witnesses. Tolano contended that because defense counsel did
not evaluate the discovery, he was “not in a position to make the best nor

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even a reasonably informed decision” whether to plead guilty. With
respect to the 2016 drug case, Tolano proposed that after he rejected plea
offers in the 2014 cases that were then pending, the state violated his rights
to due process and equal protection by intentionally targeting him with an
unconstitutional stop and search and then initiating a vindictive
prosecution against him based on the drug evidence it unlawfully obtained.
Tolano also argued that his pleas in both cases were involuntary because he
entered them “under duress,” believing “he would not get a fair shake” if
he went to trial.

¶6 The superior court summarily dismissed Tolano’s petition
and denied his motion for reconsideration. Tolano seeks review of those
decisions, asserting he has raised a colorable claim that his guilty pleas were
not voluntarily made.

¶7 The superior court may summarily dismiss a petition for post-
conviction relief if the defendant fails to “present[ ] a material issue of fact
or law that would entitle the defendant to relief” under one or more of the
enumerated grounds for post-conviction relief. Ariz. R. Crim. P. 33.11(a).
We consider a challenge to the court’s summary dismissal for an abuse of
discretion. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012).

¶8 “A plea of guilty and the ensuing conviction comprehend all
of the factual and legal elements necessary to sustain a binding, final
judgment of guilt and a lawful sentence.” United States v. Broce, 488 U.S.
563, 569 (1989). Given “the admissions inherent” in a guilty plea, id. at 576,
a defendant who “voluntarily and knowingly pleads guilty” waives “all
non-jurisdictional defenses, defects and irregularities in the proceedings.”
State v. Nicholson, 109 Ariz. 6, 8 (1972). Accordingly, a defendant convicted
after a plea is limited to challenging “whether the underlying plea was both
counseled and voluntary” or whether “on the face of the record the court
had no power to enter the conviction or impose the sentence.” Broce, 488
U.S. at 569.

¶9 Tolano’s claims that the state selectively and vindictively
prosecuted him, and that it violated his Fourth Amendment rights, are non-
jurisdictional defenses that he waived by pleading guilty. See Tollett v.
Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendant has
solemnly admitted in open court that he is in fact guilty of the offense with
which he is charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that occurred prior to the
entry of the guilty plea.”); State v. Murphy, 97 Ariz. 14, 15 (1964) (holding
that a defendant’s guilty plea forecloses challenges to the legality of a search

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or seizure); State v. Webb, 140 Ariz. 321, 323 (App. 1984) (holding that a
vindictive prosecution claim is a non-jurisdictional defense waived by a
guilty plea).

¶10 A guilty plea does not bar a claim “that counsel’s ineffective
assistance led the defendant to make an uninformed decision to accept . . .
a plea bargain, thereby making his or her decision involuntary.” State v.
Banda, 232 Ariz. 582, 585, ¶ 12 (App. 2013). To establish such a claim, the
defendant must show that counsel’s performance “fell below an objective
standard of reasonableness” and “there is a reasonable probability that, but
for counsel’s errors, [the defendant] would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 57, 59
(1985) (citation and internal quotation marks omitted). The showing of
prejudice requires the defendant to allege “specific facts which would allow
a court to meaningfully assess why [counsel’s] deficiency was material to
the plea decision.” State v. Bowers, 192 Ariz. 419, 425, ¶ 25 (App. 1998).

¶11 Here, Tolano’s ineffective-assistance claim is based on his
conclusory assertion that none of his defense attorneys ever reviewed the
discovery in the 2014 assault case. Assuming for the sake of argument that
this unsubstantiated claim is correct, it is not colorable because Tolano fails
to demonstrate that counsel’s alleged incompetence led him to plead guilty
rather than proceed to trial. See id. Tolano acknowledges in his petition for
post-conviction relief that he knew the contents of the discovery when he
decided to plead guilty. When he entered the plea, he confirmed that he
had sufficient time to discuss it with his attorney and that the attorney had
answered all his questions. He also admitted that he had committed the
charged offense. “Such ‘[s]olemn declarations in open court carry a strong
presumption of verity,’ and ‘constitute a formidable barrier’ in a
subsequent challenge to the validity of the plea.” State v. Leyva, 241 Ariz.
521, 525, ¶ 12 (App. 2017) (quoting Blackledge v. Allison, 431 U.S. 63, 73–74
(1977)). Because Tolano does not articulate, and the record does not
otherwise disclose, how defense counsel’s review of the discovery would
have altered Tolano’s decision to plead guilty, he fails to establish a
colorable claim.

¶12 Tolano did not waive his claim that he pleaded guilty by
reason of duress. See State v. Murray, 101 Ariz. 469, 469 (1966) (“A showing
that a plea of guilty was induced by fraud or duress is clearly grounds for
setting aside a judgment on the plea.”). But the superior court permissibly
denied relief. Tolano told the court that nobody had forced him to plead
guilty, and the record shows no evidence to the contrary. The only concern
Tolano expressed during the change-of-plea proceeding was that he receive

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the stipulated sentence of time served without any additional incarceration
or term of probation. On this record, Tolano’s claim that he pleaded guilty
because he believed he would not receive a fair trial is unconvincing and
does not demonstrate that his plea was procured by duress. See Leyva, 241
Ariz. at 525, ¶ 12; see also United States v. Jimenez-Dominguez, 296 F.3d 863,
869 (9th Cir. 2002) (“Although it is difficult to probe the highly subjective
state of mind of a criminal defendant, the best evidence of his
understanding when pleading guilty is found in the record of the [change-
of-plea] colloquy”); United States v. Pellerito, 878 F.2d 1535, 1541–42 (1st Cir.
1989) (distinguishing between the defendant’s motivation to plead guilty
and whether the plea was involuntary because it was the product of
duress).

¶13 Accordingly, we grant review but deny relief.

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

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