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State v. Carlson10/28/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
Petitioner Allen Carlson was charged with driving under the influence of an intoxicant (DUI) while his license was suspended and driving with an alcohol concentration of.10 or more while his license was suspended. The state also alleged Carlson had two prior felony convictions and one previous DUI conviction. Pursuant to a plea agreement, Carlson pled guilty to DUI with a suspended license. The trial court sentenced him to an aggravated prison term of three years based on his criminal history of five felony convictions, sixteen misdemeanor convictions, his failure to rehabilitate himself, and his danger to the community. Carlson seeks review of the trial court's summary dismissal of his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P., 17 A.R.S. We review for an abuse of discretion a trial court's ruling on a petition for post-conviction relief. State v. Watton, 164 Ariz. 323, 325, 793 P.2d 80, 82 (1990). We find none here.
In his Rule 32 petition, Carlson claimed his trial counsel had been ineffective in failing to file motions to dismiss the charges, in advising Carlson to accept the state's plea offer on the day trial was to begin, and in being unprepared for trial. He also claimed that the trial court had erred in rejecting his motion to withdraw his guilty plea, filed just before sentencing, and that his guilty plea was not knowing and voluntary because he was not fully informed about its consequences. To establish a claim of ineffective assistance of counsel, a petitioner must show that counsel's performance fell below objectively reasonable standards under prevailing professional norms and that the deficient performance prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Nash, 143 Ariz. 392, 694 P.2d 222 (1985). If a court determines that a petitioner has failed to establish one aspect of the requirements, it need not inquire into the other aspect. State v. Salazar, 173 Ariz. 399, 414, 844 P.2d 566, 581 (1992).
We do not address Carlson's arguments that his trial counsel was ineffective for "fail to file necessary pretrial motions, fail to investigate and fail to obtain proper discovery," the only claims he raises against counsel in his petition for review. By pleading guilty, Carlson waived all non-jurisdictional defenses and defects. See State v. Hamilton, 142 Ariz. 91, 94, 688 P.2d 983, 986 (1984); State v. Carter, 151 Ariz. 532, 533, 729 P.2d 336, 337 (App. 1986). Because Carlson can no longer challenge any substantive trial court errors that occurred before he entered his guilty plea, he cannot challenge his trial counsel's actions or failure to act during that same period. Moreover, the record does not support Carlson's claim that a crucial witness against him failed to appear for a scheduled interview, making preclusion of his testimony a possible outcome. Instead, it shows that the witness refused to schedule an interview with defense counsel and that counsel had difficulty getting the prosecutor's staff to schedule one. The trial court granted Carlson's motion for a deposition and ordered the witness to appear the day before trial; the witness appeared as ordered and was interviewed. We find no abuse of the trial court's discretion in dismissing this claim.
We also find no merit in Carlson's argument that the trial court should have granted his motion to withdraw from his guilty plea, in which Carlson claimed he had entered his plea under duress. At the sentencing hearing, the trial court questioned Carlson about his claim, reminding him that he had deni
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