State v. Perez-Tapia

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. FRANCISCO JAVIER PEREZ-TAPIA, Petitioner. No. 1 CA-CR 16-0664 PRPC FILED 1-18-2018 Petition for Review from the Superior Court in Maricopa County No. CR2012-144809-001 DT The Honorable Karen L. O’Connor, Judge REVIEW GRANTED; RELIEF DENIED COUNSEL Maricopa County Attorney’s Office, Phoenix By Amanda M. Parker Counsel for Respondent Maricopa County Office of the Legal Advocate, Phoenix By Frances J. Gray Counsel for Petitioner STATE v. PEREZ-TAPIA Decision of the Court MEMORANDUM DECISION Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Jon W. Thompson joined. P E R K I N S, Judge: ¶1 Petitioner Francisco Javier Perez-Tapia petitions this Court for review from the dismissal of his first “of right” petition for post- conviction relief. We have considered the petition for review and, for the reasons stated, grant review and deny relief. ¶2 Perez-Tapia pled guilty to possession of narcotic drugs for sale, a class two felony, with a stipulation that he be placed on supervised probation with a term of six months in jail. After the superior court denied his motion to withdraw, based upon an involuntary plea, the judge sentenced him in accordance with the plea, including dismissal of the allegation that the amount of drugs in his possession exceeded the threshold. ¶3 Perez-Tapia filed a pro se petition for post-conviction relief claiming ineffective assistance of counsel. The superior court summarily dismissed his claim as untimely. Perez-Tapia filed a petition for review. The court of appeals found an abuse of discretion by the superior court for dismissing on the notice only, and remanded back to the superior court. State v. Perez-Tapia, 2 CA-CR 2015-0069-PR, 2015 WL 1422374 at *1, ¶¶ 1, 5 (Ariz. App. Mar. 30, 2015) (mem. decision). ¶4 Perez-Tapia, represented by counsel, then filed a petition claiming that his post-conviction relief (“PCR”) was filed late but was excused under Rule 32.1(f), that his plea was not voluntary, and that he received ineffective assistance of counsel. The superior court again summarily dismissed his claims. 1 1The superior court addressed the latter two claims on the merits, but did not address the Rule 32.1(f) issue. Nor did Perez-Tapia raise the issue in his 2 STATE v. PEREZ-TAPIA Decision of the Court ¶5 Perez-Tapia reiterates his claims in his petition for review, claiming that he was not correctly advised on the immigration consequences of his plea by his plea counsel and, as a result, his plea was not entered knowingly, voluntarily, and intelligently. ¶6 We review for an abuse of discretion. State v. Decenzo, 199 Ariz. 355, 356 (App. 2001). We may affirm on any basis supported by the record. State v. Robinson, 153 Ariz. 191, 199 (1987). The petitioner must distinguish personal knowledge from the facts and include ...

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