FILED BY CLERK JUL 28 2011 COURT OF APPEALS IN THE COURT OF APPEALS DIVISION TWO STATE OF ARIZONA DIVISION TWO
THE STATE OF ARIZONA, ) 2 CA-CR 2011-0136-PR ) DEPARTMENT A Respondent, ) ) OPINION ) v. ) ) GERARDO POBLETE, ) ) Petitioner. ) )
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PINAL COUNTY
Cause No. S1100CR200500234
Honorable Robert C. Brown, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
Law Offices of Richard La Paglia By Mary Z. La Paglia Eloy Attorneys for Petitioner
B R A M M E R, Judge.
¶1 Petitioner Gerardo Poblete seeks review of the trial court‟s order denying
his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. “We
will not disturb a trial court‟s ruling on a petition for post-conviction relief absent a clear abuse of discretion.” State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App.
2007). Poblete has not sustained his burden of establishing such abuse here.
¶2 Pursuant to a plea agreement, Poblete was convicted of one count of
attempted possession of a narcotic drug for sale. The trial court suspended the imposition
of sentence and placed him on probation for a period of four years, ordering that he serve
sixty days in the county jail as a condition of probation. Poblete‟s probation was
terminated early, in September 2008. Poblete, who is a non-citizen, legal resident of the
United States, later consulted an immigration attorney in 2009, and the attorney informed
him that, as a result of his conviction, he was subject to deportation under 8 U.S.C.A.
§ 1227.
¶3 In December 2010, Poblete initiated Rule 32 proceedings, asserting his
failure to file timely his notice of post-conviction relief had not been his fault, but rather
“was attributable to the ineffectiveness of his prior criminal counsel” in not informing
him of the immigration consequences of his guilty plea. And, he maintained, he was
entitled to relief based on the Supreme Court‟s decision in Padilla v. Kentucky, ___ U.S.
___, 130 S. Ct. 1473 (2010), which he characterized as a significant change in the law for
purposes of Rule 32.1(g). Poblete averred that neither the trial court1 nor his attorney had
1 On review Poblete concedes that the trial court did warn him of the possible immigration consequences of a guilty plea. Indeed, the court advised Poblete:
I also have to advise you by rule that if you are not a citizen of the United States, pleading guilty or no contest to a crime may affect your immigration status.
2 advised him “of the immigration consequences that would result from [his] plea of
guilty” and that he “would not have pled guilty” had he known of those consequences.
The court denied relief, concluding that because it had advised Poblete of the possible
immigration consequences of his plea he was not entitled to relief under Rule 32.2(f) and
that Padilla was not applicable retroactively and did not constitute a significant change in
the law.
¶4 In his petition for review, Poblete again maintains he could not have sought
post-conviction relief timely because “he did not become aware until . . . later that this
plea would result in mandatory removal from the United States” and argues Padilla was a
significant change in the law entitling him to relief. He contends the trial court erred in
concluding otherwise.
¶5 As the trial court correctly pointed out, Poblete‟s petition was untimely.
Therefore he is entitled to relief only on certain grounds, among them that he was
“without fault” for the delay in filing his notice, and that “[t]here has been a significant
change in the law that if determined to apply to defendant‟s case would probably overturn
the defendant‟s conviction or sentence.” Ariz. R. Crim. P. 32.1(f), (g) and 32.4(a).
Admitting guilt may result in your deportation even if the charge is later dismissed. Your plea or admission of guilt could result in your deportation or removal. Could prevent you from ever being able to get legal status in the United States or could prevent you from becoming a United States citizen.
The court then asked Poblete if he understood “these potential consequences,” and Poblete responded, “Yes.” 3 ¶6 Poblete first claims he is entitled to relief under Rule 32.1(f) because he
“was not in a position to seek post-conviction relief within [ninety] days of his conviction
because he did not become aware until a few years later that this plea would result in
mandatory removal from the United States.” Rule 32.1(f) provides that a petitioner may
request the right to file a delayed notice of post-conviction relief if his failure to file
timely was “without fault on the [petitioner‟s] part.” Relief should be granted under this
rule if the trial court failed to advise the defendant of his right to seek of-right post-
conviction relief or if the defendant intended to seek post-conviction relief in an of-right
proceeding and had believed mistakenly his counsel had filed a timely notice or request.
See Ariz. R. Crim. P. 32.1(f) 2007 cmt.
¶7 Poblete is not arguing he was unaware of his right to petition for post-
conviction relief or of the time within which a notice of post-conviction relief must be
filed or that he intended to challenge the court‟s decision but his attorney or someone else
interfered with his timely filing of a notice as contemplated by Rule 32.1(f). See Ariz. R.
Crim. P. 32.1(f) 2007 cmt. Indeed, the trial court informed Poblete that he had a right to
seek post-conviction relief. Rather, his claim is essentially that, based on information
that later came to light, he regretted having failed to challenge his conviction. Such a
claim is not cognizable under Rule 32.1(f). See Ariz. R. Crim. P. 32.1(f) 2007 cmt.; cf.
State v. Montez, 102 Ariz. 444, 447, 432 P.2d 456, 459 (1967) (“[A] convicted felon may
acquiesce in the advice and decision of counsel not to appeal, so as to make that decision
his. We will not recognize the claim that the decision of counsel in which he acquiesced
deprived him of the right to counsel . . . so as . . . to permit it to be asserted as the basis of
4 good cause for a delayed appeal.”); David B. Wexler & Andrew Silverman, Representing
Prison Inmates: A Primer on an Emerging Dimension of Poverty Law Practice, 11 Ariz.
L. Rev. 385, 397-400 (1969) (“Plainly . . . a defendant‟s decision not to appeal . . . will
preclude the possibility of a subsequent delayed appeal.”).
¶8 We must then consider whether Poblete is entitled to relief under Rule
32.1(g), which provides relief when there has been a “significant change in the law.”
“Rule 32 does not define „a significant change in the law.‟ But plainly a „change in the
law‟ requires some transformative event, a „clear break from the past.‟” State v. Shrum,
220 Ariz. 115, ¶ 15, 203 P.3d 1175, 1178 (2009), quoting State v. Slemmer, 170 Ariz.
174, 182, 823 P.2d 41, 49 (1991).
¶9 In Padilla, the Supreme Court concluded “Padilla‟s counsel had an
obligation to advise him that the offense to which he was pleading guilty would result in
his removal from this country.” ___ U.S. at ___, 130 S. Ct. at 1478. Because counsel
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FILED BY CLERK JUL 28 2011 COURT OF APPEALS IN THE COURT OF APPEALS DIVISION TWO STATE OF ARIZONA DIVISION TWO
THE STATE OF ARIZONA, ) 2 CA-CR 2011-0136-PR ) DEPARTMENT A Respondent, ) ) OPINION ) v. ) ) GERARDO POBLETE, ) ) Petitioner. ) )
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PINAL COUNTY
Cause No. S1100CR200500234
Honorable Robert C. Brown, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
Law Offices of Richard La Paglia By Mary Z. La Paglia Eloy Attorneys for Petitioner
B R A M M E R, Judge.
¶1 Petitioner Gerardo Poblete seeks review of the trial court‟s order denying
his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. “We
will not disturb a trial court‟s ruling on a petition for post-conviction relief absent a clear abuse of discretion.” State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App.
2007). Poblete has not sustained his burden of establishing such abuse here.
¶2 Pursuant to a plea agreement, Poblete was convicted of one count of
attempted possession of a narcotic drug for sale. The trial court suspended the imposition
of sentence and placed him on probation for a period of four years, ordering that he serve
sixty days in the county jail as a condition of probation. Poblete‟s probation was
terminated early, in September 2008. Poblete, who is a non-citizen, legal resident of the
United States, later consulted an immigration attorney in 2009, and the attorney informed
him that, as a result of his conviction, he was subject to deportation under 8 U.S.C.A.
§ 1227.
¶3 In December 2010, Poblete initiated Rule 32 proceedings, asserting his
failure to file timely his notice of post-conviction relief had not been his fault, but rather
“was attributable to the ineffectiveness of his prior criminal counsel” in not informing
him of the immigration consequences of his guilty plea. And, he maintained, he was
entitled to relief based on the Supreme Court‟s decision in Padilla v. Kentucky, ___ U.S.
___, 130 S. Ct. 1473 (2010), which he characterized as a significant change in the law for
purposes of Rule 32.1(g). Poblete averred that neither the trial court1 nor his attorney had
1 On review Poblete concedes that the trial court did warn him of the possible immigration consequences of a guilty plea. Indeed, the court advised Poblete:
I also have to advise you by rule that if you are not a citizen of the United States, pleading guilty or no contest to a crime may affect your immigration status.
2 advised him “of the immigration consequences that would result from [his] plea of
guilty” and that he “would not have pled guilty” had he known of those consequences.
The court denied relief, concluding that because it had advised Poblete of the possible
immigration consequences of his plea he was not entitled to relief under Rule 32.2(f) and
that Padilla was not applicable retroactively and did not constitute a significant change in
the law.
¶4 In his petition for review, Poblete again maintains he could not have sought
post-conviction relief timely because “he did not become aware until . . . later that this
plea would result in mandatory removal from the United States” and argues Padilla was a
significant change in the law entitling him to relief. He contends the trial court erred in
concluding otherwise.
¶5 As the trial court correctly pointed out, Poblete‟s petition was untimely.
Therefore he is entitled to relief only on certain grounds, among them that he was
“without fault” for the delay in filing his notice, and that “[t]here has been a significant
change in the law that if determined to apply to defendant‟s case would probably overturn
the defendant‟s conviction or sentence.” Ariz. R. Crim. P. 32.1(f), (g) and 32.4(a).
Admitting guilt may result in your deportation even if the charge is later dismissed. Your plea or admission of guilt could result in your deportation or removal. Could prevent you from ever being able to get legal status in the United States or could prevent you from becoming a United States citizen.
The court then asked Poblete if he understood “these potential consequences,” and Poblete responded, “Yes.” 3 ¶6 Poblete first claims he is entitled to relief under Rule 32.1(f) because he
“was not in a position to seek post-conviction relief within [ninety] days of his conviction
because he did not become aware until a few years later that this plea would result in
mandatory removal from the United States.” Rule 32.1(f) provides that a petitioner may
request the right to file a delayed notice of post-conviction relief if his failure to file
timely was “without fault on the [petitioner‟s] part.” Relief should be granted under this
rule if the trial court failed to advise the defendant of his right to seek of-right post-
conviction relief or if the defendant intended to seek post-conviction relief in an of-right
proceeding and had believed mistakenly his counsel had filed a timely notice or request.
See Ariz. R. Crim. P. 32.1(f) 2007 cmt.
¶7 Poblete is not arguing he was unaware of his right to petition for post-
conviction relief or of the time within which a notice of post-conviction relief must be
filed or that he intended to challenge the court‟s decision but his attorney or someone else
interfered with his timely filing of a notice as contemplated by Rule 32.1(f). See Ariz. R.
Crim. P. 32.1(f) 2007 cmt. Indeed, the trial court informed Poblete that he had a right to
seek post-conviction relief. Rather, his claim is essentially that, based on information
that later came to light, he regretted having failed to challenge his conviction. Such a
claim is not cognizable under Rule 32.1(f). See Ariz. R. Crim. P. 32.1(f) 2007 cmt.; cf.
State v. Montez, 102 Ariz. 444, 447, 432 P.2d 456, 459 (1967) (“[A] convicted felon may
acquiesce in the advice and decision of counsel not to appeal, so as to make that decision
his. We will not recognize the claim that the decision of counsel in which he acquiesced
deprived him of the right to counsel . . . so as . . . to permit it to be asserted as the basis of
4 good cause for a delayed appeal.”); David B. Wexler & Andrew Silverman, Representing
Prison Inmates: A Primer on an Emerging Dimension of Poverty Law Practice, 11 Ariz.
L. Rev. 385, 397-400 (1969) (“Plainly . . . a defendant‟s decision not to appeal . . . will
preclude the possibility of a subsequent delayed appeal.”).
¶8 We must then consider whether Poblete is entitled to relief under Rule
32.1(g), which provides relief when there has been a “significant change in the law.”
“Rule 32 does not define „a significant change in the law.‟ But plainly a „change in the
law‟ requires some transformative event, a „clear break from the past.‟” State v. Shrum,
220 Ariz. 115, ¶ 15, 203 P.3d 1175, 1178 (2009), quoting State v. Slemmer, 170 Ariz.
174, 182, 823 P.2d 41, 49 (1991).
¶9 In Padilla, the Supreme Court concluded “Padilla‟s counsel had an
obligation to advise him that the offense to which he was pleading guilty would result in
his removal from this country.” ___ U.S. at ___, 130 S. Ct. at 1478. Because counsel
had not so advised Padilla, the Court ruled he had established deficient performance
under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), and
remanded the matter to the state court to determine whether Padilla could establish he had
been prejudiced by counsel‟s failure to advise him of the immigration consequences of
his guilty plea. Padilla, ___ U.S. at ___, 130 S. Ct. at 1483-84. Thus, under Padilla,
failure to advise a client of the immigration consequences of a guilty plea constitutes
deficient performance under Strickland. Id. at ___, 130 S. Ct. at 1483.
¶10 We agree with Poblete that Padilla constitutes a significant change in the
law. Before Padilla, the law in Arizona provided that an attorney‟s failure to advise a
5 defendant of the immigration consequences of his or her plea was not ineffective
assistance of counsel because such advice related to a “collateral” matter. See State v.
Rosas, 183 Ariz. 421, 423, 904 P.2d 1245, 1247 (App. 1995). The majority of other
states and every federal circuit that had considered the issue pre-Padilla followed a
similar rule. See People v. Kabre, 905 N.Y.S.2d 887, 893-94 (Crim. Ct. 2010); see also
Miller v. State, 11 A.3d 340, 349-51 (Md. Ct. Spec. App. 2010). Because the Supreme
Court rejected this approach in Padilla, we conclude Padilla represents a significant
change in the law.
¶11 The question remains, however, whether this significant change in the law
applies to Poblete. See Ariz. R. Crim. P. 32.1(g) (relief based on significant change in the
law “that if determined to apply to defendant‟s case would probably overturn the
defendant‟s conviction or sentence.”) To answer that question, we must determine
whether Padilla is applicable retroactively to cases, like Poblete‟s, that were final at the
time it was decided. State v. Towery, 204 Ariz. 386, ¶ 8, 64 P.3d 828, 831-32 (2003) (“A
defendant‟s case becomes final when „a judgment of conviction has been rendered, the
availability of appeal exhausted, and the time for a petition for certiorari elapsed or a
petition for certiorari finally denied.‟”), quoting Griffith v. Kentucky, 479 U.S. 314, 321
n.6 (1987).
¶12 New constitutional rules generally are not applicable to cases already final
when the rule is announced. See State v. Febles, 210 Ariz. 589, ¶ 8, 115 P.3d 629, 632
(App. 2005); see also Whorton v. Bockting, 549 U.S. 406, 416 (2007) (“[A]n old rule
applies both on direct and collateral review, but a new rule is generally applicable only to
6 cases that are still on direct review.”). A rule clearly is “new” when a court expressly
overturns its own precedent. Saffle v. Parks, 494 U.S. 484, 488 (1990). When, as in
Padilla, the court extends existing law, however, the determination of whether the rule
being announced is new is more complicated. Id.; see also Teague v. Lane, 489 U.S. 288,
301 (1989) (plurality opinion). In Teague, the Supreme Court defined a new rule as a
rule that “breaks new ground,” “imposes a new obligation on the States or the Federal
Government,” or was not “dictated by precedent existing at the time the defendant‟s
conviction became final.” 489 U.S. at 301.
¶13 Poblete argues on review that although Padilla “is new and is a significant
change in the law,” it was “not a new basis for setting aside a conviction,” and was
therefore not a new rule for retroactivity purposes.2 We disagree. We recognize that, as
Poblete suggests, the Padilla Court applied the existing Strickland standard. But,
although a new rule generally is not created by the application of an established rule, a
new rule may be announced if “the prior decision is applied in a novel setting, thereby
extending the precedent.” Stringer v. Black, 503 U.S. 222, 228 (1992). The “new rule”
principle is meant to “„validate[] reasonable, good-faith interpretations of existing
precedents . . . even though they are shown to be contrary to later decisions.‟” Saffle, 494
2 We note, however, in his petition below Poblete asserted Padilla was “new law,” although apparently in the context of the meaning of “a significant change in the law” under Rule 32.1(g). He made no separate argument about the retroactive application of Padilla. Neither, however, did the state; it argued Padilla was “[n]ot new law” because Rule 17.2(F), Ariz. R. Crim. P., was in effect when Poblete pled guilty and was sentenced and Padilla “merely confirm[ed] what the State of Arizona had already codified into statute.”
7 U.S. at 488. The question then is whether a “court considering [a defendant‟s] claim at
the time his conviction became final would have felt compelled by existing precedent to
conclude that the rule . . . was required by the Constitution.” Id.; Teague, 489 U.S. at
301. As discussed above, before Padilla, courts uniformly rejected claims of ineffective
assistance of counsel based on counsel‟s failure to advise the defendant of the
immigration consequences of a guilty plea.
¶14 Indeed, in Padilla, the Court noted that although it never had applied the
“distinction between direct and collateral consequences,” many other courts had. 3 ___
U.S. at ___, 130 S. Ct. at 1481, 1481 n.9. And, in his concurrence in Padilla, Justice
Alito characterized the Court‟s decision as a “dramatic departure from precedent.” Id. at
1488 (Alito, J., concurring). Although “the mere existence of conflicting authority does
not necessarily mean a rule is new,” Williams v. Taylor, 529 U.S. 362, 410 (2008), as to
this issue, significantly more than mere conflicting authority existed in the case law.
Most courts, including those in Arizona, would not have felt compelled to reach the same
conclusion as did the Court in Padilla; instead, they would have been compelled to reach
precisely the opposite conclusion. Thus, Padilla introduced a new rule. See Teague, 489
U.S. at 301.
¶15 Padilla therefore is not applicable to Poblete‟s case unless it falls within
certain narrow exceptions established by Teague. See Febles, 210 Ariz. 589, ¶ 8, 115
3 We note, however, that although the “denial of a writ of certiorari imports no expression of opinion upon the merits of the case,” United States v. Carver, 260 U.S. 482, 490 (1923) (Holmes, J.), the Supreme Court denied certiorari in at least one case that applied the “collateral consequences” rule. See United States v. Amador-Leal, 276 F.3d 511 (2002), cert. denied, 535 U.S. 1070 (2002). 8 P.3d at 632. “The first exception does not apply because it only relates to new rules that
forbid punishment of certain conduct and rules that prohibit a certain category of
punishment for a class of defendants because of their status offense.” Id. ¶ 14.
¶16 Likewise, we conclude the second Teague exception does not apply. That
exception provides that “watershed rules of criminal procedure that implicate the
fundamental fairness and accuracy of the proceeding” are applicable retroactively. Id.
¶ 15. This exception is extremely narrow and applies “„only to a small core of rules
requiring observance of those procedures that . . . are implicit in the concept of ordered
liberty.‟” Id., quoting Beard v. Banks, 542 U.S. 406, 417 (2004). Such a rule must be
“„central to an accurate determination of innocence or guilt.‟” Id., quoting Beard, 542
U.S. at 417. We cannot say the rule Padilla announced constitutes such a “core” rule.
See State v. Sepulveda, 201 Ariz. 158, ¶ 6, 32 P.3d 1085, 1087 (App. 2001) (noting
“second exception is construed narrowly to facilitate the finality of criminal convictions”
and no new constitutional rule satisfied second exception since Teague decided). “The
Teague watershed exception actually requires two showings. First, „[i]nfringement of the
rule must seriously diminish the likelihood of obtaining an accurate conviction.‟ In
addition, „the rule must alter our understanding of the bedrock procedural elements
essential to the fairness of a proceeding.‟” Towery, 204 Ariz. 386, ¶ 17, 64 P.3d at 833
(citations omitted), quoting Tyler v. Cain, 533 U.S. 656, 665 (2001) (alterations in
Towery). We cannot say a violation of the rule introduced in Padilla would impact the
accuracy of conviction, and therefore it is not a watershed rule. Thus, although a
9 significant change in the law, we agree with the trial court that Padilla does not apply to
Poblete‟s case. Therefore, although we grant the petition for review, we deny relief.
/s/ J. William Brammer, Jr. J. WILLIAM BRAMMER, JR., Judge
CONCURRING:
/s/ Joseph W. Howard JOSEPH W. HOWARD, Chief Judge
/s/ Virginia C. Kelly VIRGINIA C. KELLY, Judge