State v. Gutierrez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHRISTOPHER ALLEN GUTIERREZ, Petitioner.

No. 1 CA-CR 23-0513 PRPC
FILED 08-27-2024

Petition for Review from the Superior Court in Maricopa County
No. CR2020-113524-001
The Honorable Justin Beresky, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Johnny Jacquez
Counsel for Respondent

Christopher Allen Gutierrez, Buckeye
Petitioner

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Anni Hill Foster joined.
 STATE v. GUTIERREZ
Decision of the Court

P A T O N, Judge:

¶1 Christopher Allen Gutierrez petitions for review from the
superior court’s order dismissing his amended first petition for post-
conviction relief. We grant review and deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 The State charged Gutierrez with two counts of aggravated
assault for placing two police officers in reasonable apprehension of
imminent physical injury in March 2020. During the proceedings,
Gutierrez requested new counsel. Before Gutierrez moved to change his
first counsel, the State disclosed 26 videos from police officers’ body worn
cameras to her. Gutierrez’s second appointed counsel represented him
during the plea agreement process and sentencing.

¶3 Gutierrez pled guilty to one count of aggravated assault as a
class 2, non-dangerous felony with one prior felony conviction. See A.R.S.
§ 13-1204(A)(2), (F). At the change of plea hearing, Gutierrez’s counsel
provided the following factual basis: “Gutierrez, using a motor vehicle, . . .
intentionally did place the named victim, a peace officer, in reasonable
apprehension of imminent physical injury.” The superior court sentenced
Gutierrez to a less-than-presumptive term of eight years’ imprisonment.
See A.R.S. § 13-703(B), (I).

¶4 Gutierrez filed a timely petition for post-conviction relief
under Arizona Rule of Criminal Procedure (“Rule”) 33.1(a) which the
superior court summarily dismissed. This petition for review followed. We
have jurisdiction under Arizona Revised Statutes (“A.R.S.”) Section 13-
4239(C).

DISCUSSION

¶5 Gutierrez argues the State failed to disclose 19 body camera
videos to his second counsel and that had he known about those videos, he
would have rejected the plea offer. He also contends that his second
counsel was ineffective when she failed to discover that her copy of the case
file was missing the 19 videos.

¶6 We review the superior court’s denial of post-conviction relief
for an abuse of discretion. State v. Bigger, 251 Ariz. 402, 407, ¶ 6 (2021).
When the superior court determines that a petition presents no “material
issue of fact or law that would entitle the defendant to relief under [Rule

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Decision of the Court

33], the court must summarily dismiss the petition.” Ariz. R. Crim. P.
33.11(a) (emphasis added).

¶7 To state a colorable claim of ineffective assistance of counsel,
a defendant must show that counsel’s performance fell below objectively
reasonable standards and the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687–88 (1984); State v.
Nash, 143 Ariz. 392, 397 (1985). To show deficient performance during the
plea-bargaining process, a defendant must prove either that counsel’s
advice was erroneous or that counsel did not provide the necessary
information for “the petitioner to make an informed decision whether to
accept the plea.” State v. Donald, 198 Ariz. 406, 413, ¶ 16 (App. 2000). To
prove prejudice, a defendant “must show that there is a reasonable
probability that, but for the counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” State v. Bowers, 192 Ariz.
419, 422, ¶ 13 (App. 1998) (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)). If
a defendant fails to make a sufficient showing on either prong of the
Strickland test, we need not determine whether he satisfied the other prong.
State v. Salazar, 146 Ariz. 540, 541 (1985).

¶8 Gutierrez contends the State violated his due process rights
by failing to disclose some of the videos to his second counsel even though
he conceded that the State disclosed all the videos to his first counsel. But
he cites no authority requiring the State to disclose materials a second time
when a defendant changes counsel, or to ensure defendant’s new counsel
obtained a complete copy of his first counsel’s case file. Even if the State
failed to re-disclose the videos, Gutierrez’s argument involves the
deprivation of his constitutional due process right, which he waived by
accepting the plea agreement. See State v. Chavez, 243 Ariz. 313, 318, ¶ 14
(App. 2017) (non-jurisdictional defenses include deprivations of
constitutional rights).

¶9 Gutierrez argues the videos contained information that
would have prevented him from pleading guilty such as his interview
statements, contradictory statements from officers, and an unflattering
picture of law enforcement. A plea agreement is considered “involuntary
only where a defendant lacks information of ‘true importance in the
decision-making process.’” State v. Pac, 165 Ariz. 294, 295–96 (1990)
(citation omitted). But the information Gutierrez claims is in the videos, if
true, is irrelevant to Gutierrez’s guilt of the aggravated assault counts he
was charged with. He concedes the videos did not record any portion of
the charged offenses. We therefore cannot say that Gutierrez’s plea was
involuntary because he lacked this information. See State v. Crowder, 155

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Decision of the Court

Ariz. 477, 481 (1987) (“[w]here the missing information does not go to
defendant’s essential objective in making the agreement, where it involves
secondary or minor terms collateral to the decision to plead, and where it is
not ‘of the essence’ of the agreement, it is in the public interest that the
agreement be enforced.”) (citation omitted) (overruled on other grounds by
E.H. v. Slayton, 249 Ariz. 248, 253, ¶ 10 (2020)).

¶10 Gutierrez also contends he received ineffective assistance of
counsel because his second counsel did not review the available body
camera footage. The allegation that a defendant would not have pled guilty
but for counsel’s error “must be accompanied by an allegation of specific
facts which would allow a court to meaningfully assess why that deficiency
was material to the plea decision.” Bowers, 192 Ariz. at 425, ¶ 25.

¶11 Gutierrez points to no specific exculpatory evidence from the
videos indicating that he did not commit the aggravated assault.
Importantly, as previously mentioned, he concedes that the videos did not
record any portion of the charged offense. And while Gutierrez argues that
the videos show unmarked police cars following him, this is not
exculpatory evidence because under Section 13-1204(A)(2), the statutory
basis for his plea, placing a victim in reasonable apprehension of imminent
physical injury does not require knowledge that the victim was a police
officer. See A.R.S. § 13-1204(A). Thus, Gutierrez has not shown that but for
his counsel’s deficient performance, he would not have accepted the plea
offer and “would have insisted on going to trial.” See Bowers, 192 Ariz. at
422, 424, ¶¶ 13, 19 (quoting Hill, 474 U.S. at 58).

CONCLUSION

¶12 We grant review and deny relief.

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

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