Opinion
No. 2 CA-CR 2015-0306-PR
12-07-2015
THE STATE OF ARIZONA, Respondent, v. MILES L. KAUFMAN, Petitioner.
COUNSEL Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Miles Kaufman, Tucson 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NOT FOR PUBLICATION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 Pima County
Nos. CR20074582001; CR20080894001; CR20082641001; CR20083466001
The Honorable James E. Marner, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent Miles Kaufman, Tucson
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Kelly concurred. VÁSQUEZ, Presiding Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Kaufman seeks review of the trial court's order dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court clearly abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Kaufman has not met his burden of demonstrating such abuse here.
¶2 Pursuant to jury verdicts in one cause number and guilty pleas in three other cause numbers, Kaufman was convicted of two counts of possession of a narcotic drug and one count each of possession of drug paraphernalia, solicitation to possess a narcotic drug for sale, endangerment, and aggravated driving under the influence. The trial court sentenced him to concurrent and consecutive prison terms totaling 15.75 years. We affirmed Kaufman's trial convictions and the relevant sentences on appeal. State v. Kaufman, No. 2 CA-CR 2009-0138 (memorandum decision filed Jan. 11, 2010). Kaufman initiated post-conviction proceedings in each cause number, and appointed counsel filed notices stating he had reviewed the record but found no claims to raise in a petition for post-conviction relief. The court dismissed the proceedings when Kaufman did not file a pro se petition.
¶3 In April 2015, Kaufman filed a petition for post-conviction relief listing each cause number and claiming: (1) his counsel had been ineffective in each case for various reasons; (2) related to two charges to which he had pled guilty, a police officer improperly continued to question him after he had requested counsel, and; (3) the restitution determination was improper. He also suggested his claims were based on newly discovered evidence. The trial court summarily dismissed the petition, and this petition for review followed.
¶4 On review, Kaufman lists the claims raised below and argues he is entitled to an evidentiary hearing. In this untimely proceeding, Kaufman was permitted to raise only those claims falling within Rule 32.1(d) through (h). See Ariz. R. Crim. P. 32.4(a). Kaufman identifies no claim on review falling within those subsections, emphasizing that his claims are properly analyzed pursuant to Rule 32.1(a) as violations of his constitutional rights. He suggests that his claims are not subject to preclusion due to their constitutional basis, citing State v. Espinosa, 200 Ariz. 503, 29 P.3d 278 (App. 2001).
He apparently has abandoned any claim of newly discovered evidence pursuant to Rule 32.1(e). --------
¶5 Espinosa does not provide Kaufman relief. In that case, we stated that claims of sufficient constitutional magnitude were not subject to preclusion pursuant to Rule 32.2(a)(3) absent a knowing, voluntary, and intelligent waiver of the underlying constitutional right. Espinosa, 200 Ariz. 503, ¶ 7, 29 P.3d at 280; see also Stewart v. Smith, 202 Ariz. 446, ¶ 10, 46 P.3d 1067, 1071 (2002). But, as we explained in State v. Lopez, that analysis does not apply to claims like Kaufman's that have been raised in an untimely proceeding. 234 Ariz. 513, ¶ 8, 323 P.3d 1164, 1166 (App. 2014). Because Kaufman's claims are time-barred pursuant to Rule 32.4(a), the trial court did not err in summarily rejecting them.
¶6 We grant review but deny relief.