Opinion
No. 2 CA-CR 2013-0469-PR
01-24-2014
THE STATE OF ARIZONA, Respondent, v. RAUL EDUARDO GONZALEZ, Petitioner.
Raul E. Gonzalez, Indian Springs, Nevada 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NOT FOR PUBLICATION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. CR2007006240001DT
The Honorable Jo Lynn Gentry-Lewis, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Raul E. Gonzalez, Indian Springs, Nevada
In Propria Persona
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Judge Espinosa and Judge Miller concurred.
ECKERSTROM, Judge:
¶1 Raul Gonzalez petitions this court for review of the trial court's order summarily dismissing his successive petition for postconviction 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). Gonzalez has not met his burden of demonstrating such abuse here.
¶2 Gonzalez pled no contest in 2009 to seven counts of armed robbery and was sentenced to consecutive, twenty-year prison terms for each offense. He filed a notice of post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but found no claim to raise in a Rule 32 proceeding. Despite being granted leave to do so, Gonzalez did not file a pro se petition for post-conviction relief, and the trial court dismissed the proceeding in November 2010.
¶3 In June 2012, Gonzalez filed a "Motion to Withdrawal [sic] Plea" claiming he did not remember signing the plea agreement and his trial counsel had been ineffective because he did not adequately advise him about the consequences of the plea. The trial court treated the motion as a successive petition for post-conviction relief and summarily dismissed it, concluding Gonzalez had not stated a claim upon which relief could be granted in an untimely petition. See Ariz. R. Crim. P. 32.3, 32.6(c).
¶4 In his petition for review, Gonzalez merely restates his claims without addressing the trial court's conclusion that he was not entitled to relief. And we agree with the court that Gonzalez
cannot raise these claims in an untimely, successive post-conviction proceeding. His claims for relief fall within Rule 32.1(a) and, pursuant to Rule 32.4(a), cannot be raised in an untimely petition. See Ariz. R. Crim. P. 32.1, 32.4(a); see State v. Pruett, 185 Ariz. 128, 131, 912 P.2d 1357, 1360 (App. 1995) (pleading defendant's second petition for post-conviction relief must be filed within thirty days of finality of first petition). Furthermore, he is precluded from raising them now because he could have raised them in his previous Rule 32 proceeding. See Ariz. R. Crim. P. 32.1, 32.2(a)(3).
¶5 Although review is granted, relief is denied.