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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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,
Petitioner,
v.
JOSE L. TORRES,
Respondent.
No. 1 CA-CR 19-0601 PRPC
FILED 11-24-2020
Petition for Review from the Superior Court in Yuma County
No. S1400CR201201045
The Honorable Lawrence C. Kenworthy, Judge
REVIEW GRANTED; RELIEF DENIED; REMANDED
COUNSEL
Yuma County Attorney’s Office, Yuma
By Charles V. S. Platt
Counsel for Respondent
Yuma County Public Defender’s Office, Yuma
By Robert J. Trebilcock
Counsel for Petitioner
STATE v. TORRES
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge D. Steven Williams and Judge David D. Weinzweig joined.
T H U M M A, Judge:
¶1 The State seeks review of an order granting Jose L. Torres
post-conviction relief (PCR) under Arizona Rule of Criminal Procedure 33.1
Accepting review, because the superior court properly concluded Torres’
appointed counsel provided ineffective assistance, relief is denied.
However, this matter is remanded to resolve issues that pertain to Torres’
remaining obligation, if any, to pay a statutory fee.
¶2 Torres pled guilty to sexual conduct with a minor, a class 2
felony, and luring a minor for sexual exploitation, a class 3 felony, both
dangerous crimes against children (DCAC). The court imposed a 13-year
prison term followed by ten years’ probation. For restitution, the State
requested Torres reimburse the Yuma County Attorney’s Office (YCAO)
$2,200, the amount the YCAO paid a private third-party to conduct a
forensic medical examination of the victim. Defense counsel initially
objected to the request but, upon further investigation, agreed it was
reasonable. Accordingly, in an October 2013 order, the court ordered Torres
to pay $2,200 in restitution for the benefit of YCAO (Restitution Award).
¶3 Torres timely filed PCR proceedings. He primarily challenged
both the amount of the Restitution Award and plea counsel’s failure to
challenge the propriety of the award itself. After the parties stipulated to
the facts relevant to the amount of the Restitution Award, the court denied
relief. In doing so, the court determined $2,200 was an economic loss
suffered by YCAO, making the Restitution Award proper. The court did
not address Torres’ ineffective assistance of counsel (IAC) claim. Torres
petitioned for review.
1 Effective January 1, 2020, the Arizona Supreme Court amended the
post-conviction relief rules. State v. Botello-Rangel, 248 Ariz. 429, 430 ¶ 1 n.1
(App. 2020). Because there were no substantive changes related to this
decision, this court applies and cites the current rules.
2
STATE v. TORRES
Decision of the Court
¶4 In 2018, Torres obtained partial relief based on the Restitution
Award not being authorized by law. State v. Torres, 2 CA-CR 2018-0061 PR,
2018 WL 2435390 at *2 ¶ 6 (App. May 30, 2018) (mem. dec.). Relief was
warranted pursuant to State v. Linares, 241 Ariz. 416 (App. 2017), which held
that restitution to reimburse a county for the costs of a sex offense victim’s
forensic medical examination was improper. The matter was then
remanded for consideration of Torres’ IAC claim. Id. ¶ 8.
¶5 On remand, Torres filed an amended PCR petition, arguing
his plea counsel’s failure to challenge the propriety of the Restitution
Award was, as a matter of law, objectively unreasonable under prevailing
professional norms. See Strickland v. Washington, 466 U.S. 668, 687–88 (1984).
The court found Torres’s plea counsel provided constitutionally deficient
assistance and granted relief as to the Restitution Award. The State
unsuccessfully sought a rehearing before timely petitioning for review.
¶6 According to the State’s petition for review, the superior court
abused its discretion by granting Torres relief on his IAC claim. The State
contends plea counsel’s failure to challenge the Restitution Award could
not be deemed constitutionally deficient because the restitution hearing
occurred before Linares was published.
¶7 The State is correct, as a general matter, that “[f]ailure to
predict future changes in the law is not ineffective assistance because
clairvoyance is not a required attribute of effective representation.” State v.
Febles, 210 Ariz. 589, 597 ¶ 24 (App. 2005) (internal quotation marks and
citation omitted). However, this court will affirm a superior court’s ruling
“on any basis supported by the record.” State v. Wassenaar, 215 Ariz. 565,
577 ¶ 50 (App. 2007).
¶8 Along with the Restitution Award, the superior court also
imposed the statutorily required $500 DCAC Assessment. See A.R.S. § 12-
116.07 (requiring courts to impose a non-waivable $500 assessment on
defendants who are convicted of DCAC offenses and to “transmit the
monies collected pursuant to this section to the county treasurer for the
purpose of defraying the cost of investigations pursuant to § 13-1414”).
Because the DCAC Assessment was mandated by statute to cover the same
investigative costs as those contemplated by the Restitution Award, this
court gave the parties an opportunity to file supplemental briefs addressing
whether Torres’ plea counsel provided ineffective assistance for failing to
challenge the Restitution Award on that basis.
3
STATE v. TORRES
Decision of the Court
¶9 In its supplemental brief, the State concedes Torres’ plea
counsel provided ineffective assistance in this respect. This court accepts
the State’s concession of error. The State also argues, however, that Torres’
relief is limited to a $500 reduction in the amount of the Restitution Award.
That argument fails because, in resolving Torres’ prior petition for appellate
review in 2018, the Restitution Award was found to be improper as a matter
of law. See generally State v. Torres, 2 CA-CR 2018-0061 PR, 2018 WL 2434390
at *2 ¶ 6 (App. May 30, 2018) (mem. dec.).
¶10 According to the parties, Torres has paid $1,204.28 in
restitution. It is not clear, however, whether that amount, or a portion of
that amount, was paid as reimbursement to YCAO for the costs associated
with the victim’s forensic medical examination. Accordingly, this matter is
remanded to the superior court to address that issue and, ultimately, to
determine whether Torres has satisfied his obligation under the DCAC
Assessment. Any amount Torres has paid for the benefit of the YCAO more
than the $500 authorized by § 12-116.07 for reimbursement of costs
associated with the victim’s forensic medical examination shall be refunded
to him.
¶11 The court grants review, but because the State properly
concedes Torres’ counsel provided ineffective assistance, denies relief. This
matter is remanded for further proceedings consistent with this decision.
AMY M. WOOD • Clerk of the Court
FILED: AA
4