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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 in the petition
all supporting affidavits and evidence available. Fitzgerald v. Myers, 243
Ariz. 84, 84, ¶ 1 (2017) (“Rule 32.5 sets forth the required contents of a PCR
petition”) (citing Ariz. R. Crim. P. 32.5).
¶7 As a threshold, we note that Perez-Tapia did not provide or
attach any documentary evidence relating to his immigration proceedings
to support his PCR. Ariz. R. Crim. P. 32.5 (“Affidavits, records, or other
evidence currently available to the defendant supporting the allegations of
the petition shall be attached to it.”). Additionally, when the court denied
his motion to withdraw from the plea, his new counsel indicated he was
going to obtain additional evidence, including possibly obtaining an
affidavit from his plea counsel. The court granted Perez-Tapia a
continuance, and he then failed to obtain an affidavit. Perez-Tapia also fails
to attach any factual affidavits (the opinion affidavit of an attorney
notwithstanding) to his PCR or explain the absence of this critical evidence.
Therefore, he has not supported his claims with sufficient evidence.
¶8 Factually, the claim that he is subject to mandatory
deportation is belied by the record, which establishes that Perez-Tapia was
released from probation early based upon a probation report that noted he
was no longer in State or Federal custody; received authorization to work;
and has a social security number. “[C]ompliance with Rule 32 is not a mere
formality.” Canion v. Cole, 210 Ariz. 598, 600, ¶ 11 (2005). A petitioner must
“strictly comply” with Rule 32 to be entitled to relief. Id.
¶9 To state a colorable claim of ineffective assistance of counsel,
a defendant must show that counsel’s performance fell below reasonable
standards and that deficient performance prejudiced the defendant.
Strickland v. Washington, 466 U.S. 668, 687 (1984). If a defendant fails to make
petition for review. We need not address this because we find his remaining
claims otherwise without merit.
3
STATE v. PEREZ-TAPIA
Decision of the Court
a sufficient showing on either prong of the Strickland test, the court need not
determine whether the defendant satisfied the other prong. State v. Salazar,
146 Ariz. 540, 541 (1985). Perez-Tapia, who concedes that he was at least
told he would “probably” be deported, has failed to support his claims or
to establish prejudice.
¶10 A plea agreement waives all non-jurisdictional defenses,
errors, and defects which occurred prior to the plea. State v. Moreno, 134
Ariz. 199, 200 (App. 1982). A defendant’s decision to plead guilty must be
voluntary, knowing, and intelligent. See Boykin v. Alabama, 395 U.S. 238, 242
(1969); State v. Brown, 212 Ariz. 225, 229, ¶ 15 (2006); see also Ariz. R. Crim.
P. 17.1(b). A defendant’s statements to the trial court at a change of plea
regarding voluntariness are normally binding on the defendant. State v.
Hamilton, 142 Ariz. 91, 93 (1984). A plea will be found involuntary only
where a defendant lacks information of “true importance in the decision-
making process.” State v. Pac, 165 Ariz. 294, 295–96 (1990) (quoting State v.
Crowder, 155 Ariz. 477, 481 (1987)).
¶11 Perez-Tapia has not met the most basic evidentiary
requirements in presenting a colorable claim to the court. Therefore, we
find that he has not established a claim that counsel was ineffective, or that
he was even negatively impacted based upon what we have before us, and
has not established that the plea was constitutionally invalid.
¶12 Counsel must inform a client whether a plea carries a risk of
deportation. Padilla v. Kentucky, 559 U.S. 356, 372 (2010). When the
deportation consequence is truly clear, the duty to give correct advice is
equally clear. Id. at 369. To obtain relief on this type of claim, a petitioner
must convince the court that a decision to reject the plea bargain would
have been rational under the circumstances. Id. at 372.
¶13 To establish prejudice in the context of a plea agreement, a
defendant must show a reasonable probability that, except for his lawyer’s
error, he would not have waived the right to trial and entered a plea. State
v. Ysea, 191 Ariz. 372, 377 (1998), superseded by statute (citation omitted). A
defendant who has detrimentally relied upon erroneous legal advice has
been prejudiced because the plea could not have been knowing and
voluntary and thus has not made an informed choice. Id. Additionally, the
prejudice requirement is satisfied when a petitioner demonstrates a
“reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” State v. Bowers,
192 Ariz. 419, 424, ¶ 19 (1998) (quoting Hill v. Lockhart, 474 U.S. 52, 58
(1985)); see also Lee v. United States, 137 S. Ct. 1958, 1965 (2017).
4
STATE v. PEREZ-TAPIA
Decision of the Court
¶14 We find that Perez-Tapia has not met his burden to show a
colorable claim. Perez-Tapia received an immigration advisement of the
immigration consequences prior to entering into his plea. The plea also
contained a paragraph advising him of possible immigration consequences.
The plea was favorable in that the State agreed to dismiss the allegation that
the amount of drugs in his possession was above the threshold, which
would, upon conviction, have subjected him to a mandatory prison range
of 3 to 12.5 years, with the presumptive being 5 years in the Arizona
Department of Corrections. See Ariz. Rev. Stat. §§ 13-3408(A)(2), (D), 13-
702(D). We note that his affidavit in support of his claims does not state he
would have “insisted on going to trial,” but rather indicates he would not
have accepted this plea.
¶15 Based upon the information presented, the failure to attach
relevant documents, and the failure to provide an affidavit from his original
plea counsel prior to sentencing or in his PCR, we do not find Perez-Tapia
has shown that he was not aware of the consequences that he might be
deported, that the consequences are “clear,” or that he would have chosen
trial.
¶16 We grant review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
5