Opinion
No. 2 CA-CR 2014-0198-PR
09-08-2014
THE STATE OF ARIZONA, Respondent, v. MARTIN E. HUSSAK, Petitioner.
COUNSEL M. Lando Voyles, Pinal County Attorney By Rosemary Gordon Pánuco, Appellate Bureau Chief, Florence Counsel for Respondent Martin E. Hussak, Douglas 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NOT FOR PUBLICATION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 Pinal County
No. S1100CR201102374
The Honorable Robert C. Brown, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
M. Lando Voyles, Pinal County Attorney
By Rosemary Gordon Pánuco, Appellate Bureau Chief, Florence
Counsel for Respondent
Martin E. Hussak, Douglas
In Propria Persona
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred.
HOWARD, Judge:
¶1 Martin Hussak petitions this court for review of the trial court's order summarily dismissing his untimely notice of 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). Hussak has not met his burden of demonstrating such abuse here.
¶2 Hussak pled guilty to aggravated assault and was sentenced to a presumptive, 3.5-year prison term. Hussak sought post-conviction relief raising various claims, and the trial court denied relief, concluding Hussak's plea was knowing, voluntary, and intelligent; his counsel had rendered effective assistance; and, his sentence was lawful and consistent with the plea agreement. We denied relief on review. State v. Hussak, No. 2 CA-CR 2013-0216-PR, ¶ 9 (memorandum decision filed Jan. 14, 2014). Our mandate issued on April 15, 2014. After we filed our decision but before our mandate issued, Hussak filed a second notice of post-conviction relief, which the trial court also denied.
¶3 On June 5, 2014, Hussak filed a third notice of post-conviction relief, stating he wished to raise a claim of newly discovered material facts, his failure to file a timely notice of post-conviction relief was without fault on his part, and there had been a significant change in the law applicable to his case. He attached a memorandum to his notice in which he claimed he had not received a copy of our mandate until May 5, that he had requested a receipt from the prison mail system, and that he would provide it to the court.
¶4 In the remainder of his memorandum, Hussak asserted the trial court had erred in rejecting his claims based on State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000), raised both in his first post-conviction proceeding and in his second notice of post-conviction relief. The trial court summarily dismissed the notice, and this petition for review followed.
¶5 On review, Hussak repeats his argument that the trial court erred in dismissing his second post-conviction proceeding and in failing to appoint him counsel in that proceeding. But, to obtain review of the trial court's ruling, Hussak was required to file a petition for review in this court pursuant to Rule 32.9(c). Nothing in Rule 32 permits a trial court to review a decision in a previous post-conviction proceeding.
¶6 Hussak further asserts that his late receipt of the mandate in our decision on review was a "due process error." But he does not explain this claim nor develop any argument in support of it, and we therefore do not address it further. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (failure to develop legal argument waives argument on review).
¶7 For the reasons stated, we grant review but deny relief.