STATE v. RODRIGUEZ
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DIVISION ONE FILED: 12/13/2012 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Respondent, ) ) v. ) ) HECTOR GONZALEZ RODRIGUEZ, ) ) Petitioner. ) ) ) ) __________________________________) No. 1 CA-CR 11-0205 PRPC DEPARTMENT A Yuma County Superior Court No. S1400CR200801430 DECISION ORDER Petitioner Hector Gonzalez Rodriguez petitions this court for review from the summary dismissal of his petition for postconviction relief. Presiding Judge John C. Gemmill, and Judges Margaret H. Downie and Diane M. Johnsen have considered this petition for review and, for the reasons stated, grant review and relief. Rodriguez pleaded guilty to possession of drug paraphernalia, a class 6 felony, and the trial court placed him on two years' probation. sentencing written proceedings, "Notice of (I. 35.) the Rights." court At the conclusion of the provided Among other Rodriguez with information, a that notice informed Rodriguez of his right to file an "of-right" petition for post-conviction relief pursuant to Rule 32 of the 1 CA-CR 11-0205 PRPC (Page 2) Arizona Rules of Criminal Procedure. The notice further informed Rodriguez that he must file a notice of post-conviction relief within ninety days after the entry of judgment and warned him of the consequences of the failure to do so. The notice further informed Rodriguez he could obtain a form for the notice of post-conviction relief from the court, the jail or the prison and informed him where to file the form once completed. (I. 38.) Rodriguez filed his first notice of post-conviction relief fifty-one days after the ninety-day deadline expired. (I. 40.) Rodriguez argued in his notice and in a subsequent motion for reconsideration that the failure to file a timely notice was not his fault. Rodriguez argued that after the trial court placed him on probation, federal authorities took him into custody for deportation proceedings. Rodriguez claimed no one informed him he could be deported if convicted in this matter and it was only then he relief. 1 1 believed he had a valid claim for post-conviction The federal facilities, however, did not have the form The transcripts of hearings are not contained unknown whether the trial possibility of deportation Criminal Procedure 17.2(f). the change of plea and sentencing in the record. Therefore, it is court warned Rodriguez of the as required by Arizona Rule of We also note that the Supreme Court 1 CA-CR 11-0205 PRPC (Page 3) for a notice of post-conviction relief. help of family his to immigration seek the counsel, help of who his Rodriguez sought the told Rodriguez original trial and his counsel. Rodriguez argued that his family then made several attempts to seek the help of Rodriguez's trial counsel either could not or would not help them. who, they claim, Rodriguez claimed he and his family eventually gave up trying to seek the help of his trial counsel and retained Rodriguez's current counsel, who immediately filed the notice of post-conviction relief at issue. (I. 40, 44.) untimely. The trial court summarily dismissed the notice as (I. 43.) The trial court reexamined the matter pursuant to Rodriguez's motion for reconsideration but denied the motion. (I. 45.) We grant review and relief. While Rodriguez's notice of post-conviction relief was not timely, Rule 32.1(f) expressly provides that any person convicted of a criminal offense may seek post-conviction relief on the ground that "[t]he issued the decision in Padilla v. Kentucky approximately one week before Rodriguez entered his guilty plea. In Padilla, the Supreme Court held that the failure to inform a pleading defendant of the possibility of deportation following a guilty plea constitutes ineffective assistance of counsel. Padilla v. Kentucky, __ U.S. __, 130 S.Ct. 1473, 1486 (2010). 1 CA-CR 11-0205 PRPC (Page 4) defendant's failure to file a notice of post-conviction relief of-right [] within the prescribed time was without fault on the defendant's part[.] Ariz. R. Crim. P. 32.1(f). Rodriguez presented a colorable claim that he was without fault in the failure to file a notice within the prescribed time. of post-conviction relief of-right A colorable claim is one that, if the allegations are true, might have changed the outcome. State v. Runningeagle, 176 Ariz. 59, 63, 859 P.2d 169, 173 (1993). defendant who presents evidentiary hearing. P.2d 14, 16 (1988). a colorable claim is entitled to A an State v. D'Ambrosio, 156 Ariz. 71, 73, 750 Rodriguez is therefore entitled to an evidentiary hearing to determine whether his failure to file a timely notice of post-conviction relief was without fault on his part. We grant review and relief and remand for proceedings consistent with this decision order. ____/s/___________________________ JOHN C. GEMMILL, Presiding Judge
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