Opinion
2 CA-CR 2013-0070-PR
04-24-2013
THE STATE OF ARIZONA, Respondent, v. CHAD LEE BUMPUS, Petitioner.
Sheila S. Polk, Yavapai County Attorney By Steven A. Young Attorneys for Respondent In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF YAVAPAI COUNTY
Cause No. P1300CR20080078
Honorable Celé Hancock, Judge
REVIEW GRANTED; RELIEF DENIED
Sheila S. Polk, Yavapai County Attorney
By Steven A. Young
Prescott
Attorneys for Respondent
Chad Lee Bumpus Kingman
In Propria Persona
ECKERSTROM, Presiding Judge. ¶ Petitioner Chad Bumpus seeks review of the trial court's dismissal of his pro se notice of post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P., and the court's denial of his motion for reconsideration of that ruling. Pursuant to a plea agreement, Bumpus was convicted in May 2008 of transportation of a dangerous drug for sale and misconduct involving weapons. The court imposed concurrent, mitigated and aggravated sentences, the longer of which was 7.5 years. In May 2011, Bumpus filed his first notice of post-conviction relief. In that notice, he asserted he intended to raise claims of ineffective assistance of counsel and newly discovered evidence and maintained that his failure to file a timely notice of post-conviction relief was "without fault" on his part. He also asserted he "was diagnosed before the instant crime as bipolar" and he had "now ceased taking" his prescribed medication and was "more lucid." ¶2 The trial court summarily dismissed the notice of post-conviction relief, concluding it was untimely, and denied Bumpus's motion for reconsideration. Bumpus then filed a delayed petition for review seeking review of both of those rulings. We review a trial court's denial of post-conviction relief for an abuse of discretion. State v. Watton, 164 Ariz. 323, 325, 793 P.2d 80, 82 (1990). We find no such abuse here. ¶3 On review, Bumpus asks that we "review his medical records as new evidence," asserting he is unable to receive proper treatment for his mental condition while incarcerated. Noticeably missing from Bumpus's notice of post-conviction relief and his petition for review, however, is any explanation for his untimely filing. See Ariz. R. Crim. P. 32.2(b) (untimely notice of post-conviction relief that fails to state specific exception to preclusion or "meritorious reasons . . . substantiating the claim . . . shall be summarily dismissed"). Bumpus's notice, filed nearly three years after he was sentenced, was patently untimely. See Ariz. R. Crim. P. 32.4(a) (notice of post-conviction relief in noncapital case "must be filed within ninety days after the entry of judgment and sentence"). In addition, Bumpus fails on review to address the trial court's finding that his claims are untimely. ¶4 Apparently in an attempt to avoid preclusion, Bumpus asserted he was seeking relief based on newly discovered evidence pursuant to Rule 32.1(e). However, to be entitled to relief on a claim of newly discovered evidence, a petitioner first must demonstrate the evidence is, in fact, newly discovered. See State v. Serna, 167 Ariz. 373, 374, 807 P.2d 1109, 1110 (1991) (describing five elements of successful newly discovered evidence claim). Bumpus has not explained why his mental condition, which he maintains existed before he committed the underlying offenses, and of which he apparently was aware, should be treated as newly discovered evidence. In the absence of any exception to preclusion set forth in Rule 32.2(b), Bumpus's notice of post-conviction relief was untimely and, therefore, precluded. See Ariz. R. Crim. P. 32.2(b). ¶5 Accordingly, although we grant the petition for review, we deny relief.
Because Rule 32 contains no provision for a motion for reconsideration, we construe Bumpus's motion as a motion for rehearing, which is permitted by Rule 32.9(a).
In November 2011, the trial court granted Bumpus's motion to file a delayed petition for review.
Bumpus appears to be raising this claim for the first time in his petition for review, having failed to mention it in his notice of post-conviction relief as a claim he intended to raise and develop in a petition for post-conviction relief. We will not address claims or arguments raised for the first time in a petition for review. State v. Rodriguez, 227 Ariz. 58, n.4, 251 P.3d 1045, 1048 n.4 (App. 2010). We note, too, that the assertion that Bumpus is not receiving proper mental health treatment in prison is not a cognizable claim under Rule 32.1.
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________________________
PETER J. ECKERSTROM, Presiding Judge
CONCURRING: ________________________
JOSEPH W. HOWARD, Chief Judge
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MICHAEL MILLER, Judge