                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                  TELLY ONTURIO BEASLEY, Petitioner.

                         No. 1 CA-CR 16-0604 PRPC
                              FILED 10-3-2017


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2013-450969-001 SE
                  The Honorable Danielle J. Viola, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Telly Onturio Beasley, Douglas
Petitioner



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.
                             STATE v. BEASLEY
                             Decision of the Court

C R U Z, Judge:

¶1           Telly Onturio Beasley petitions this court for review of the
superior court’s dismissal of his petition for post-conviction relief, filed
pursuant to Arizona Rule of Criminal Procedure (“Rule”) 32. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.

¶2             In July 2014, Beasley pleaded guilty to one count of possession
or use of marijuana, a class six felony, with a stipulated sentence of one year
imprisonment. In October 2014, Beasley filed a motion to withdraw from
the plea agreement, arguing actual innocence, disparate treatment, and the
State’s failure to provide him with discovery he believed existed. Beasley
then filed a “reply in support of motion to withdraw the plea,” arguing it
would be a “manifest injustice” to prosecute him as a felon. Beasley
provided no evidence to support his arguments.

¶3            In November 2014, the superior court denied Beasley’s
motion to withdraw his guilty plea and sentenced Beasley to the stipulated
term of one year imprisonment with 339 days of presentence incarceration
credit. The sentence was ordered to be served concurrently with Beasley’s
prison sentence in an unrelated case.

¶4             Beasley filed a timely notice of petition for post-conviction
relief. After several extensions, Beasley filed his petition alleging: (1) illegal
search and seizure related to the automobile stop; (2) misconduct of a police
officer for allegedly providing false testimony at Beasley’s preliminary
hearing; (3) selective prosecution and disparate sentencing; and (4) abuse
of discretion in denial of Beasley’s motion to withdraw his guilty plea,
violating his equal protection and due process rights.

¶5           The superior court summarily dismissed Beasley’s petition.
The court found that Beasley’s claims related to the search and seizure and
testimony of the officer were precluded, that he had not stated a colorable
claim related to disparate sentencing, and that, because Beasley did not
demonstrate a manifest injustice, the court did not abuse its discretion in
denying Beasley’s motion to withdraw his guilty plea.

¶6            After denying Beasley’s motion for rehearing, the superior
court received Beasley’s reply to his motion and a notice of additional
authorities. Because the court previously denied Beasley’s motion, and he
thus did not have a pending Rule 32 proceeding, the court construed




                                        2
                            STATE v. BEASLEY
                            Decision of the Court

Beasley’s notice of additional authorities as a motion for reconsideration
and denied relief.

¶7            Beasley now seeks review, raising the following issues: (1)
whether the superior court erred in finding Beasley’s claims precluded; (2)
whether Beasley’s conviction and sentence violates the Arizona and United
States Constitutions because of a significant change in the law; (3) whether
Beasley’s claims of State and police misconduct are exempt from
preclusion; (4) whether Beasley’s claim of selective prosecution under an
unconstitutional statute is exempt from preclusion; and (5) whether the
superior court abused its discretion in denying Beasley’s motion to
withdraw from the plea agreement.

¶8             We review the summary dismissal of a petition for post-
conviction relief for abuse of discretion. State v. Schrock, 149 Ariz. 433, 441
(1986). An abuse of discretion occurs if the court makes an error of law or
fails to adequately investigate the facts necessary to support its decision.
State v. Wall, 212 Ariz. 1, 3, ¶12 (2006); State v. Douglas, 87 Ariz. 182, 187
(1960).

¶9            A superior court may properly deny a defendant’s request to
withdraw a guilty plea when the defendant does not demonstrate an
injustice associated with the guilty plea or with the acceptance of it. See
State v. Faunt, 139 Ariz. 111, 113 (1984). Once a defendant enters a guilty
plea, he waives all non-jurisdictional defenses, errors, and defects which
occurred prior to the plea. State v. Moreno, 134 Ariz. 199, 200 (App. 1982).
The waiver of non-jurisdictional defects includes deprivations of
constitutional rights. Tollett v. Henderson, 411 U.S. 258, 267 (1973). A
defendant’s guilty plea

       represents a break in the chain of events which has preceded
       it in the criminal process. When a criminal defendant has
       solemnly admitted in open court that he is in fact guilty of the
       offense with which he is charged, he may not thereafter raise
       independent claims relating to deprivation of constitutional
       rights that occurred prior to the entry of the guilty plea.

Id.

¶10         Beasley failed to show an injustice associated with the plea
agreement or with the acceptance of it. Accordingly, the superior court
properly denied Beasley’s motion to withdraw his guilty plea.
Furthermore, Beasley waived his claims relating to the search and seizure
of the automobile and the alleged false testimony of the police officer by


                                      3
                          STATE v. BEASLEY
                          Decision of the Court

accepting the plea agreement and entering a voluntary guilty plea.
Beasley’s claim that he could not corroborate his allegations against the
police officer until he received additional discovery is not persuasive.
Beasley was aware of the allegation prior to the plea agreement, and did
not raise the issue at any time prior to the plea. Finally, Beasley has
provided no evidence or support of new law that would impact his arrest,
plea, or conviction and sentence.

¶11          We therefore grant review and deny relief.




                         AMY M. WOOD • Clerk of the Court
                          FILED: AA




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