Opinion
No. 2 CA-CR 2015-0012-PR
03-04-2015
THE STATE OF ARIZONA, Respondent, v. BRYAN LEVAR BOWLS, Petitioner.
Bryan L. Bowls, Buckeye 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR1998017121
The Honorable Douglas L. Rayes, Judge
REVIEW GRANTED; RELIEF DENIED
Bryan L. Bowls, Buckeye
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
¶1 Petitioner Bryan Bowls seeks review of the trial court's order dismissing his successive, untimely notice of post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb the court's ruling unless it clearly abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here.
¶2 Following a jury trial in 2004, Bowls was convicted of second-degree murder and three counts of aggravated assault. The trial court imposed consecutive, presumptive and aggravated sentences of imprisonment totaling 43.5 years. We affirmed Bowls's convictions and sentences on appeal. State v. Bowls, No. 1 CA-CR 04-0294 (memorandum decision filed Oct. 4, 2005).
In 2003, we reversed Bowls's convictions and sentences following his first trial in this matter and remanded for a new trial. See State v. Bowls, No. 1 CA-CR 01-0325 (memorandum decision filed Feb. 4, 2003). Bowls was subsequently convicted of the same offenses in 2004. This petition for review arises from that trial.
¶3 The trial court dismissed Bowls's first two post-conviction proceedings in 2004 and 2006. Bowls then filed a notice of post-conviction relief in 2013, which the trial court summarily dismissed as untimely and successive, and this petition for review followed. In its ruling dismissing Bowls's most recent notice, the court correctly found: Bowls could not raise a claim of ineffective assistance of counsel in a successive, untimely petition, see Rule 32.4(a); he was not entitled to raise a claim of ineffective assistance of Rule 32 counsel, Osterkamp v. Browning, 226 Ariz. 485, ¶ 18, 250 P.3d 551, 556 (App. 2011); and, he had not established a claim based on a significant change in the law pursuant to Rule 32.1(g).
¶4 In the form Bowls used for his notice of post-conviction relief, he indicated he was raising a claim of ineffective assistance of counsel and checked the space in front of the statement, "There has been a significant change in the law that would probably overturn the conviction or sentence." In specifying the facts upon which he based his contentions, Bowls claimed Rule 32 counsel had been ineffective; he had lacked the resources to file a supplemental Rule 32 petition when the court had given him the opportunity to do so; and, the current notice of post-conviction relief, which he conceded was untimely, raised claims only "pursuant to Rule 32.1(h) [actual innocence]." Notably missing from Bowls's notice, however, was any explanation supporting a claim based either on a significant change in the law or actual innocence pursuant to Rule 32.1(g), (h). See Ariz. R. Crim. P. 32.4(a) ("Any notice [of post-conviction relief] not timely filed may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h)."); see also Rule 32.2(b) (trial court required to dismiss successive notice of post-conviction relief if it fails to "set forth the substance of the specific exception and the reasons for not raising the claim in the previous petition or in a timely manner").
¶5 On review, Bowls asserts Rule 32 counsel was ineffective for failing to challenge trial counsel's conduct, a claim the trial court correctly found precluded. See Osterkamp, 226 Ariz. 485, ¶ 18, 250 P.3d at 556. And, to the extent Bowls claims for the first time on review that Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012), constitutes a significant change in the law and asks that we permit him to supplement his notice of post-conviction relief with this case, we do not address this claim. See State v. Vera, 235 Ariz. 571, ¶ 8, 334 P.3d 754, 756-57 (App. 2014) (appellate court does not review issues not presented to trial court); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review "shall contain . . . issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review").
Bowls refers to his petition for review as a "Petition for Review Notice of Rule 32.1(f) Appeals-PCR." He was apparently misled by the trial court's characterization of his request to file a delayed petition for review as a request for "permission to file a delayed notice of appeal . . . pursuant to Ariz. R. Crim. P. 32.1(f)." To the extent Bowls suggests his untimely notice of post-conviction relief was without fault on his part, or that he now intends to file a "delayed notice of appeal" pursuant to Rule 32.1(f), we note that rule is not available to non-pleading defendants like him, who already had an appeal. See Ariz. R. Crim. P. 32.1(f).
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¶6 Bowls has failed to set forth any reasons substantiating a claim based on a significant change in the law or actual innocence, nor has he explained why any other claim would be exempt from preclusion. Therefore, because Bowls did not demonstrate to the trial court that his claims were excepted from preclusion on any basis, the court did not abuse its discretion in dismissing his successive, untimely notice of post-conviction relief. See Ariz. R. Crim. P. 32.2(b).
¶7 Accordingly, we grant review but deny relief.