STATE OF ARIZONA v. MARK FERNANDO CASTANEDA

Annotate this Case

Download PDF

FILED BY CLERK NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 NOV 29 2010 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. MARK FERNANDO CASTANEDA, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2010-0252-PR DEPARTMENT A MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20071255 Honorable Howard Fell, Judge Pro Tempore REVIEW GRANTED; RELIEF DENIED Barbara LaWall, Pima County Attorney By Jacob R. Lines Robert S. Wolkin, P.C. By Robert S. Wolkin Tucson Attorneys for Respondent Tucson Attorney for Petitioner H O W A R D, Chief Judge. ¶1 Mark Castaneda petitions this court for review of the trial court s April 7, 2010, order denying his of-right petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., and the court s April 30 order denying his motion for rehearing. We will not disturb these rulings unless the court clearly has abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). ¶2 Castaneda pled guilty to second-degree murder and aggravated assault with a deadly weapon. The trial court sentenced him to presumptive, consecutive prison terms of sixteen and 7.5 years, respectively. Castaneda filed a notice of post-conviction relief, and appointed counsel filed a notice stating she had reviewed the case and found no issues of merit . . . to argue on Mr. Castaneda s behalf. See Ariz. R. Crim. P. 32.4(c)(2). The court granted Castaneda leave to file a pro se petition for post-conviction relief. Castaneda retained counsel, who filed a petition on his behalf asserting a claim of ineffective assistance of trial counsel. In that petition and his supporting affidavits, Castaneda claimed his trial counsel had told him he would be sentenced to concurrent prison terms upon pleading guilty. Castaneda asserted he would not have pled guilty had he known the court could impose consecutive sentences. ¶3 Accepting Castaneda s affidavits as true, the trial court concluded trial counsel s actions fell below objectively reasonable standards. The court summarily denied relief, however, finding Castaneda had failed to demonstrate he had been prejudiced by his counsel s actions. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (to establish claim of ineffective assistance of counsel warranting relief, defendant must show counsel s performance both deficient and prejudicial). The court stated that, at the change-of-plea hearing, it had made [Castaneda] aware that he could be sentenced consecutively, Castaneda had stated he understood that fact, and he nonetheless had pled 2 guilty without objection. The court further noted Castaneda had agreed that no one had made any promises to him regarding the outcome of his case, that he had gone over the plea agreement with his attorney, and that he had read and signed it. Thus, the court concluded, the misinformation provided by [trial counsel] as to how [Castaneda] would be sentenced would have been corrected by [Castaneda s] reading of the agreement and the plea colloquy with the Court. The court reiterated these findings in denying Castaneda s motion for rehearing. ¶4 On review, Castaneda asserts the trial court erred in finding he had not presented a colorable claim of prejudice and therefore erred in denying his petition without an evidentiary hearing. See State v. Runningeagle, 176 Ariz. 59, 63, 859 P.2d 169, 173 (1993) ( [A] defendant is entitled to an evidentiary hearing only when he presents a colorable claim one that, if the allegations are true, might have changed the outcome. ). As we understand his argument, Castaneda contends the court s providing of correct information was insufficient to change his actual subjective belief he would receive concurrent sentences because the court did not expressly tell him his attorney had given him incorrect information. ¶5 We reject this argument. In this context, a claim of ineffective assistance is essentially a claim that the guilty plea was not knowing, intelligent, and voluntary because the defendant relied on incorrect information provided by his attorney in deciding whether to accept the plea. See Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); see also State v. Soto, 223 Ariz. 407, ¶ 10, 224 P.3d 223, 226 (App. 2010) (valid guilty plea 3 has sufficient factual basis and is entered knowingly, intelligently, and voluntarily). But such a claim necessarily evaporates when the defendant ultimately is provided the correct information before pleading guilty. See State v. Short, 23 Ariz. App. 59, 60-61, 530 P.2d 905, 906-07 (1975) (when court correctly informs defendant of sentencing range, incorrect sentencing information counsel previously provided does not render plea invalid). ¶6 Castaneda does not cite, nor do we find, authority suggesting that, in order to ensure a plea is voluntary, a trial court must determine if counsel has provided incorrect information before the court, as required by our rules, provides the correct information and conducts the plea colloquy. See Ariz. R. Crim. P. 17.2, 17.3. As the court noted, it advised Castaneda he could face consecutive sentences, Castaneda stated he understood the potential sentences, and Castaneda avowed he had not been promised a particular sentence. Moreover, the plea agreement specifically provided there had been no agreement regarding whether the sentences would be consecutive or concurrent. In light of these facts, Castaneda s assertions in his affidavit, even assuming their truth, do not demonstrate he was prejudiced by his trial counsel s conduct. Any incorrect information given Castaneda by his trial counsel was corrected before Castaneda pled guilty, and the incorrect information thus could not render the plea invalid. See Short, 23 4 Ariz. App. at 60-61, 530 P.2d at 906-07. The court therefore did not err in summarily denying Castaneda s petition for post-conviction relief.1 Although we grant Castaneda s petition for review, we deny relief. ¶7 /s/ Joseph W. Howard JOSEPH W. HOWARD, Chief Judge CONCURRING: /s/ J. William Brammer, Jr. J. WILLIAM BRAMMER, JR., Presiding Judge /s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge 1 Castaneda also asserts the trial court erred in finding he had failed to demonstrate prejudice because he had not shown he would have received a lesser sentence had he rejected the plea and gone to trial. Because we conclude the court correctly found Castaneda was not prejudiced because any misinformation was corrected at the changeof-plea hearing, we need not address this argument. 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.