Opinion
2 CA-CR 2023-0132-PR
02-13-2024
The State of Arizona, Respondent, v. Robert C. Echols, Petitioner.
Kent P. Volkmer, Pinal County Attorney By Geraldine L. Roll, Deputy County Attorney, Florence Counsel for Respondent Law Office of Florence M. Bruemmer P.C., Anthem By Florence M. Bruemmer Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pinal County No. S1100CR200701774 The Honorable Lawrence M. Wharton, Judge Pro Tempore
Kent P. Volkmer, Pinal County Attorney By Geraldine L. Roll, Deputy County Attorney, Florence Counsel for Respondent
Law Office of Florence M. Bruemmer P.C., Anthem By Florence M. Bruemmer Counsel for Petitioner
Judge O'Neil authored the decision of the Court, in which Vice Chief Judge Staring and Judge Sklar concurred.
MEMORANDUM DECISION
O' NEIL, Judge
¶1 Robert Echols seeks review of the trial court's order summarily dismissing his successive petition for post-conviction relief filed under Rule 32, Ariz. R. Crim. P. We will not disturb this ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Echols has not met his burden of establishing such abuse here.
¶2 After a jury trial, Echols was convicted of two counts of discharging a firearm at a residential structure and ten counts of aggravated assault. The trial court sentenced him to a combination of consecutive and concurrent and presumptive prison terms totaling sixty-eight years. We affirmed his convictions and sentences on appeal. State v. Echols, No. 2 CA-CR 2008-0271 (Ariz. App. July 8, 2009) (mem. decision). Echols has sought and been denied post-conviction relief multiple times. State v. Echols, No. 2 CA-CR 2018-0250-PR (Ariz. App. Nov. 16, 2018) (mem. decision); State v. Echols, No. 2 CA-CR 2012-0016-PR (Ariz. App. Apr. 3, 2012) (mem. decision).
¶3 In November 2022, Echols filed a notice of and petition for post-conviction relief asserting he had recently discovered that he could not apply for commutation of his aggregate prison term but had to apply for commutation of each sentence once he began serving that sentence. He asserted that had he been aware of what he described as "special conditions regarding his sentence, parole, or commutation," he would have accepted a plea offer from the state rather than proceed to trial. Echols argued he was entitled to relief under Rule 32.1(a) for ineffective assistance of counsel and Rule 32.1(e) based on newly discovered evidence. He further argued that he was entitled to raise his claims under Rule 32.4(b)(3)(D) because he had only recently discovered them and, thus, his failure to timely seek post-conviction relief was not his fault. The trial court summarily dismissed the proceeding. The court concluded that counsel had no obligation to inform Echols of "all the details of clemency and/or commutation" and, in any event, the claim was precluded as waived under Rule 32.2(a)(3) and was untimely under Rule 32.4(b)(3). This petition for review followed.
¶4 On review, Echols reasserts his claims of ineffective assistance of counsel and newly discovered evidence and argues the trial court erred in finding his claims precluded and untimely. We find no error. Echols's claim of ineffective assistance of counsel cannot be raised in an untimely proceeding. See Ariz. R. Crim. P. 32.4(b)(3)(A) (time for filing a Rule 32.1(a) claim); State v. Petty, 225 Ariz. 369, ¶ 11 (App. 2010) (ineffective assistance claim cognizable under Rule 32.1(a)). And Echols is incorrect that Rule 32.4(b)(3)(D) allows him to raise this claim in such a proceeding. That provision states a trial "court must excuse an untimely notice requesting post-conviction relief . . . if the defendant adequately explains why the failure to timely file a notice was not the defendant's fault." But even assuming Rule 32.4(b)(3)(D) could apply to a successive notice like the one here, it does not apply to a defendant's belated discovery of a claim. See State v. Poblete, 227 Ariz. 537, ¶¶ 6-7 (App. 2011). Instead, it may allow an untimely notice when the defendant "was unaware of his right to petition for post-conviction relief or of the time within which a notice of post-conviction relief must be filed or that he intended to challenge the court's decision but his attorney or someone else interfered with his timely filing of a notice." Id. ¶ 7 (addressing similar allowance for untimely notice in former Rule 32.1(f)). Finally, although a claim of newly discovered evidence may be raised at any "reasonable time after discovering the basis of the claim," Ariz. R. Crim. P. 32.4(b)(3)(B), Echols has identified no such evidence. A post-conviction claim of newly discovered evidence under Rule 32.1(e) is restricted to "newly discovered material facts" that "probably would . . . change[] the judgment or sentence." Ariz. R. Crim. P. 32.1(e). Executive branch policies for clemency and commutation are material to neither the judgment nor the sentence. They do not qualify as newly discovered evidence, no matter when Echols learned of them. Nor does Rule 32.1(e) contemplate a claim of newly discovered ineffective assistance of counsel. See State v. Serna, 167 Ariz. 373, 374 (1991) (describing five elements of cognizable newly discovered evidence claim).
¶5 We grant review but deny relief.