STATE OF ARIZONA v. MARTIN AVILA
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IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Respondent, v. MARTIN AVILA, Petitioner. No. 2 CA-CR 2017-0073-PR Filed March 28, 2017 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Petition for Review from the Superior Court in Maricopa County No. CR2013430072005DT The Honorable Sherry K. Stephens, Judge REVIEW GRANTED; RELIEF DENIED COUNSEL William G. Montgomery, Maricopa County Attorney By E. Catherine Leisch, Deputy County Attorney, Phoenix Counsel for Respondent Martin Avila, Florence In Propria Persona STATE v. AVILA Decision of the Court MEMORANDUM DECISION Judge Vásquez authored the decision of the Court, in which Presiding Judge Howard and Chief Judge Eckerstrom concurred. V Á S Q U E Z, Judge: ¶1 Martin Avila seeks review of the trial court’s ruling summarily dismissing his of-right petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly abused its discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7, 353 P.3d 847, 848 (2015). Avila has not met his burden of demonstrating such abuse here. ¶2 In 2014, Avila pled guilty to charges of armed robbery and kidnapping. The trial court sentenced him to concurrent, 12.5year prison terms for each offense. Avila sought post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record but had found no “claims for relief to raise in postconviction proceedings.” ¶3 Avila then filed a pro se petition, asserting his Fifth Amendment right against self-incrimination had been violated when a police officer “compelled a confession” by interviewing him at a hospital while he was under the influence of pain medication due to a gunshot wound to his leg. He additionally claimed that, contrary to a police report, he “did not shoot himself by accident” but instead had been shot by an accomplice. The trial court summarily denied relief, noting Avila had waived his Fifth Amendment claim by pleading guilty and had not “state[d] a legal basis for his claim” that he had been shot by an accomplice. This petition for review followed. ¶4 On review, Avila reasserts the claims raised below. We agree with the trial court that, by pleading guilty, Avila has waived all non-jurisdictional defects unrelated to the validity of his plea and, thus, has waived his claim that his privilege against self-incrimination 2 STATE v. AVILA Decision of the Court was violated.1 See State v. Flores, 218 Ariz. 407, ¶ 6, 188 P.3d 706, 70809 (App. 2008); State v. Quick, 177 Ariz. 314, 316, 868 P.2d 327, 329 (App. 1993). Avila additionally asserts for the first time in his petition for review that he “would not have pled guilty” had he “known of his 5th Amendment rights.” Even assuming, without deciding, that such a claim is not waived by his guilty plea, we do not address arguments made for the first time on review. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review shall contain “[t]he issues which were decided by the trial court and which the defendant wishes to present” for review). ¶5 And, as the trial court pointed out, even if Avila is correct that he was shot by an accomplice, he has not identified why that would entitle him to relief under Rule 32. Thus, he has waived this claim, and we do not address it further. See State v. Stefanovich, 232 Ariz. 154, ¶ 16, 302 P.3d 679, 683 (App. 2013). ¶6 We grant review but deny relief. 1 Avila also contends he was not under arrest while at the hospital, apparently in response to the state’s characterization of his claim below as a claim that his rights were “violated by police when they questioned him after the arrest.” He has not explained how this issue is relevant to his claim, and, accordingly, we do not address it. See State v. Stefanovich, 232 Ariz. 154, ¶ 16, 302 P.3d 679, 683 (App. 2013) (insufficient argument waives claim on review). 3
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