Opinion
No. 2 CA-CR 2014-0012-PR
04-22-2014
THE STATE OF ARIZONA, Respondent, v. MICHAEL COLE BARR, Petitioner.
William G. Montgomery, Maricopa County Attorney By Catherine Leisch, Deputy County Attorney, Phoenix Counsel for Respondent Michael C. Barr, Florence In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR2010148874001SE
The Honorable Warren J. Granville, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Catherine Leisch, Deputy County Attorney, Phoenix
Counsel for Respondent
Michael C. Barr, Florence
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Howard and Judge Miller concurred. VÁSQUEZ, Presiding Judge:
¶1 Michael Barr petitions this court for review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Barr has not met his burden of demonstrating such abuse here.
¶2 Barr pled guilty to sexual conduct with a minor and two counts of attempted sexual conduct with a minor and was sentenced to a twenty-two-year prison term for sexual conduct with a minor, to be followed by concurrent terms of lifetime probation on the remaining convictions. He filed a notice of post-conviction relief, and the trial court appointed counsel, who filed a notice stating he had reviewed the record but had been "unable to find any claims for relief to raise in post-conviction relief proceedings."
¶3 Barr then filed a pro se petition for post-conviction relief asserting his plea had been involuntary because the trial court coerced him into pleading guilty; the state had failed to disclose evidence in accordance with Rule 15, Ariz. R. Crim. P.; he should have been released because the state did not file a complaint within forty-eight hours of his arrest; and, his counsel had been ineffective for failing to provide him with various materials related to his case. The trial court summarily dismissed Barr's petition.
¶4 On review, Barr summarily repeats his claims and argues for the first time that he was "on Zoloft and Hydroxyzine" when he entered his plea. We need not address these arguments because his notice below was not timely filed. Barr was required to file his notice of post-conviction relief "within ninety days after the entry of judgment and sentence." Ariz. R. Crim. P. 32.4(a). "Any notice not timely filed may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h)." Id. The time limits for filing a notice and petition "are jurisdictional, and an untimely filed notice or petition shall be dismissed with prejudice." A.R.S. § 13-4234(G).
¶5 Barr was sentenced on August 16, 2011. He signed his notice of post-conviction relief on Tuesday, November 15, 2011—one day after his notice was due. Cf. State v. Rosario, 195 Ariz. 264, ¶¶ 9-11, 987 P.2d 226, 228 (App. 1999) (notice is timely filed if defendant gives notice to department of corrections for mailing within ninety-day time limit). Barr did not identify any claims in his notice that fall within Rule 32.1(d), (e), (f), (g) or (h); thus, the trial court was required to dismiss his notice. See § 13-4234(G). We may uphold the trial court's resolution of a case if it was correct for any reason. See State v. Banda, 232 Ariz. 582, n.2, 307 P.3d 1009, 1012 n.2 (App. 2013).
The sentencing minute entry was filed August 19, 2011. But our supreme court recently has clarified that the time to file a notice of appeal runs from the pronouncement of sentence. State v. Whitman, No. CR-13-0201-PR, 2014 WL 1385396, ¶ 19 (Ariz. Apr. 9, 2014). The court's reasoning applies with equal force to a notice of post-conviction relief. See State v. Rosario, 195 Ariz. 264, ¶¶ 8, 10, 987 P.2d 226, 228 (App. 1999) (noting that pronouncement of sentence "mark[s] the beginning of the ninety-day period" under Rule 32.4(a) and "the rationale for determining the date of the filing is the same as for a notice of appeal"). Moreover, the trial court advised Barr on August 16, 2011, that he had a right to seek review of the proceedings, but he had to make that request "in writing within 90 days of today or you lose those rights." The written notification of rights, which Barr acknowledged receipt of on August 16, provided the same admonition.
¶6 For the reasons stated, although review is granted, relief is denied.