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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUAN MANUEL TOLANO, Petitioner.

No. 1 CA-CR 20-0551 PRPC

Petition for Review from the Maricopa County Superior Court

No. CR2016-002031-001, CR2014-006097-001

The Honorable Gregory Como, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Amanda M. Parker

Counsel for Respondent

Juan Manuel Tolano, Tucson

Petitioner

FILED 1-4-2022
STATE v. TOLANO

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the court, in which 

Judge David D. Weinzweig and Judge Paul J. McMurdie joined.

S W A N N, Judge:

¶1 Juan Manuel Tolano petitions this court for review from the 

dismissal of his petition for post-conviction relief filed under Arizona Rule 

of Criminal Procedure 33.1. For the following reasons, we grant review but

deny relief.

¶2 The state charged Tolano, by indictments filed in 2014 and 

2016, with committing multiple assaults (CR2014-006097-001) and drug 

crimes (CR2016-002031-001). In 2017, Tolano accepted plea offers in both 

cases. In the 2014 case, he pleaded guilty to committing aggravated assault 

by injuring his minor nephew. In the 2016 case, he pleaded guilty to 

possessing methamphetamine, a dangerous drug.

¶3 The superior court sentenced Tolano to one year 

imprisonment for each conviction. It awarded him 365 days of presentence 

incarceration credit toward each sentence and ordered the sentences to run 

concurrently with one another and with a sentence imposed in a third case 

(CR2014-133407-001) that is not a part of this proceeding.

¶4 Tolano filed an untimely notice of post-conviction relief,

arguing that his failure to file a timely petition was not his fault. Tolano 

alleged that he was transferred facilities and did not have access to legal 

materials to file the notice in a timely manner. The superior court appointed 

counsel to represent him in his petition for post-conviction relief. After 

Tolano’s attorney stated he could find no viable claim to pursue in either 

case, Tolano filed a petition for post-conviction relief in propria persona.

¶5 With respect to the 2014 assault case, Tolano asserted he was 

selectively prosecuted in violation of his right to equal protection. Tolano

also argued that defense counsel provided ineffective assistance by not

reviewing discovery materials—which allegedly revealed evidence of 

Tolano’s discriminatory treatment and credibility issues on the part of 

victims and witnesses. Tolano contended that because defense counsel did 

not evaluate the discovery, he was “not in a position to make the best nor 
STATE v. TOLANO

Decision of the Court

3

even a reasonably informed decision” whether to plead guilty. With 

respect to the 2016 drug case, Tolano proposed that after he rejected plea 

offers in the 2014 cases that were then pending, the state violated his rights 

to due process and equal protection by intentionally targeting him with an 

unconstitutional stop and search and then initiating a vindictive 

prosecution against him based on the drug evidence it unlawfully obtained. 

Tolano also argued that his pleas in both cases were involuntary because he 

entered them “under duress,” believing “he would not get a fair shake” if 

he went to trial.

¶6 The superior court summarily dismissed Tolano’s petition 

and denied his motion for reconsideration. Tolano seeks review of those 

decisions, asserting he has raised a colorable claim that his guilty pleas were 

not voluntarily made.

¶7 The superior court may summarily dismiss a petition for postconviction relief if the defendant fails to “present[ ] a material issue of fact 

or law that would entitle the defendant to relief” under one or more of the 

enumerated grounds for post-conviction relief. Ariz. R. Crim. P. 33.11(a).

We consider a challenge to the court’s summary dismissal for an abuse of 

discretion. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012).

¶8 “A plea of guilty and the ensuing conviction comprehend all 

of the factual and legal elements necessary to sustain a binding, final 

judgment of guilt and a lawful sentence.” United States v. Broce, 488 U.S. 

563, 569 (1989). Given “the admissions inherent” in a guilty plea, id. at 576, 

a defendant who “voluntarily and knowingly pleads guilty” waives “all 

non-jurisdictional defenses, defects and irregularities in the proceedings.” 

State v. Nicholson, 109 Ariz. 6, 8 (1972). Accordingly, a defendant convicted 

after a plea is limited to challenging “whether the underlying plea was both 

counseled and voluntary” or whether “on the face of the record the court 

had no power to enter the conviction or impose the sentence.” Broce, 488 

U.S. at 569.

¶9 Tolano’s claims that the state selectively and vindictively 

prosecuted him, and that it violated his Fourth Amendment rights, are nonjurisdictional defenses that he waived by pleading guilty. See Tollett v. 

Henderson, 411 U.S. 258, 267 (1973) (“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 the deprivation of constitutional rights that occurred prior to the 

entry of the guilty plea.”); State v. Murphy, 97 Ariz. 14, 15 (1964) (holding 

that a defendant’s guilty plea forecloses challenges to the legality of a search 
STATE v. TOLANO

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4

or seizure); State v. Webb, 140 Ariz. 321, 323 (App. 1984) (holding that a

vindictive prosecution claim is a non-jurisdictional defense waived by a 

guilty plea).

¶10 A guilty plea does not bar a claim “that counsel’s ineffective 

assistance led the defendant to make an uninformed decision to accept . . .

a plea bargain, thereby making his or her decision involuntary.” State v. 

Banda, 232 Ariz. 582, 585, ¶ 12 (App. 2013). To establish such a claim, the 

defendant must show that counsel’s performance “fell below an objective 

standard of reasonableness” and “there is a reasonable probability that, but 

for counsel’s errors, [the defendant] would not have pleaded guilty and 

would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 57, 59 

(1985) (citation and internal quotation marks omitted). The showing of 

prejudice requires the defendant to allege “specific facts which would allow 

a court to meaningfully assess why [counsel’s] deficiency was material to 

the plea decision.” State v. Bowers, 192 Ariz. 419, 425, ¶ 25 (App. 1998).

¶11 Here, Tolano’s ineffective-assistance claim is based on his 

conclusory assertion that none of his defense attorneys ever reviewed the 

discovery in the 2014 assault case. Assuming for the sake of argument that 

this unsubstantiated claim is correct, it is not colorable because Tolano fails 

to demonstrate that counsel’s alleged incompetence led him to plead guilty

rather than proceed to trial. See id. Tolano acknowledges in his petition for 

post-conviction relief that he knew the contents of the discovery when he 

decided to plead guilty. When he entered the plea, he confirmed that he 

had sufficient time to discuss it with his attorney and that the attorney had 

answered all his questions. He also admitted that he had committed the 

charged offense. “Such ‘[s]olemn declarations in open court carry a strong 

presumption of verity,’ and ‘constitute a formidable barrier’ in a 

subsequent challenge to the validity of the plea.” State v. Leyva, 241 Ariz. 

521, 525, ¶ 12 (App. 2017) (quoting Blackledge v. Allison, 431 U.S. 63, 73–74 

(1977)). Because Tolano does not articulate, and the record does not 

otherwise disclose, how defense counsel’s review of the discovery would 

have altered Tolano’s decision to plead guilty, he fails to establish a 

colorable claim.

¶12 Tolano did not waive his claim that he pleaded guilty by 

reason of duress. See State v. Murray, 101 Ariz. 469, 469 (1966) (“A showing 

that a plea of guilty was induced by fraud or duress is clearly grounds for 

setting aside a judgment on the plea.”). But the superior court permissibly 

denied relief. Tolano told the court that nobody had forced him to plead 

guilty, and the record shows no evidence to the contrary. The only concern 

Tolano expressed during the change-of-plea proceeding was that he receive 
STATE v. TOLANO

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5

the stipulated sentence of time served without any additional incarceration 

or term of probation. On this record, Tolano’s claim that he pleaded guilty 

because he believed he would not receive a fair trial is unconvincing and 

does not demonstrate that his plea was procured by duress. See Leyva, 241 

Ariz. at 525, ¶ 12; see also United States v. Jimenez-Dominguez, 296 F.3d 863, 

869 (9th Cir. 2002) (“Although it is difficult to probe the highly subjective 

state of mind of a criminal defendant, the best evidence of his 

understanding when pleading guilty is found in the record of the [changeof-plea] colloquy”); United States v. Pellerito, 878 F.2d 1535, 1541–42 (1st Cir. 

1989) (distinguishing between the defendant’s motivation to plead guilty 

and whether the plea was involuntary because it was the product of 

duress).

¶13 Accordingly, we grant review but deny relief.