STATE v. LOPEZ

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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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. EVERADO LOPEZ, JR., Petitioner. No. 1 CA-CR 13-0867 PRPC FILED 5-21-2015 Appeal from the Superior Court in Maricopa County No. CR2003-014080-008 DT The Honorable M. Scott McCoy, Judge REVIEW GRANTED; RELIEF DENIED COUNSEL Maricopa County Attorney’s Office, Phoenix By Diane M. Meloche Counsel for Respondent Everado Lopez, Jr., Kingman Petitioner STATE v. LOPEZ Decision of the Court MEMORANDUM DECISION Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Donn Kessler joined. W I N T H R O P, Presiding Judge: ¶1 Petitioner, Everado Lopez, Jr. (“Lopez”), petitions for review of the dismissal of his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. After considering the petition for review, we grant review and deny relief for the reasons stated below. ¶2 A jury convicted Lopez of the use of wire or electronic communication in a drug-related transaction and conspiracy to commit transportation of dangerous drugs for sale. The trial court sentenced Lopez to an aggregate term of fifteen years’ imprisonment, and we affirmed his convictions and sentences on direct appeal. State v. Lopez, 1 CA-CR 04-0534 (Ariz. App. Nov. 17, 2005) (mem. decision). Lopez now seeks review of the summary dismissal of his third successive petition for post-conviction relief. We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c). ¶3 Lopez argues his trial counsel was ineffective when he allegedly gave Lopez erroneous advice during plea negotiations. We deny relief. Lopez could have raised this issue in his prior post-conviction relief proceedings. Any claim a defendant raised or could have raised in an earlier post-conviction relief proceeding is precluded. See Ariz. R. Crim. P. 32.2(a). None of the exceptions under Rule 32.2(b) apply here. ¶4 Lopez argues that Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376 (2012), constitute significant changes in the law that allow him to present an untimely claim of ineffective assistance of counsel. See Ariz. R. Crim. P. 32.1(g), 32.2(b) (recognizing that preclusion does not apply to claims for relief based on a significant change in the law). In both cases, the Supreme Court held a defendant has a right to effective assistance of counsel during the plea bargain process. Frye, ___ U.S. at ___, 132 S. Ct. at 1407-08; Lafler, ___ U.S. at ___, 132 S. Ct. at 1384. Frye and Lafler, however, are not significant changes in the law as applied in Arizona. Arizona has long recognized that the right to effective assistance of counsel extends to the plea bargain 2 STATE v. LOPEZ Decision of the Court process. State v. Donald, 198 Ariz. 406, 413, ¶¶ 14-17, 10 P.3d 1193, 1200 (App. 2000).1 ¶5 Lopez may, however, be able to seek habeas corpus relief in federal court based on ineffective assistance of trial counsel if he can first show either he had no counsel in his first post-conviction relief proceeding or counsel in his first post-conviction relief proceeding was ineffective. See Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309, 1320 (2012). Martinez, however, does not require a state court to consider all untimely claims of ineffective assistance of counsel raised in post-conviction proceedings. ¶6 For the above reasons, we grant review and deny relief. : ama Further, in both Frye and Lafler, the Supreme Court acknowledged it was merely applying the existing law as defined in 1984 in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Frye, ___ U.S. at ___, 132 S. Ct. at 1409; Lafler, ___ U.S. at ___, 132 S. Ct. at 1384. In 1985, the Supreme Court held that the law announced in Strickland applied “to ineffective-assistance claims arising out of the plea process.” Hill v. Lockhart, 474 U.S. 52, 57 (1985). 1 3

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