Opinion
No. 2 CA-CR 2018-0022-PR
05-21-2018
THE STATE OF ARIZONA, Respondent, v. EDUARDO MARTINEZ, Petitioner.
Eduardo Martinez, Kingman 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NOT FOR PUBLICATION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. 31.19(e). Petition for Review from the Superior Court in Maricopa County
No. CR2014005298001DT
The Honorable Mark H. Brain, Judge
REVIEW GRANTED; RELIEF DENIED
Eduardo Martinez, Kingman
In Propria Persona
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Eduardo Martinez seeks review of the trial court's order summarily dismissing his untimely notice of post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Martinez has not shown such abuse here.
¶2 Martinez pled guilty to child molestation and two counts of attempted child molestation. On March 24, 2017, the trial court sentenced him to a twenty-one-year prison term for child molestation and, for the attempt convictions, suspended the imposition of sentence and placed Martinez on lifetime terms of probation. Martinez filed a notice of post-conviction relief, signed on June 26, 2017, and received by the court June 29, in which he indicated only that he wished to raise a claim of ineffective assistance of counsel. The court dismissed the notice, concluding it had not been timely filed and Martinez had not identified any claim exempt from the timeliness requirement of Rule 32.4(a)(2)(C). This petition for review followed.
¶3 On review, Martinez again contends his trial counsel had been ineffective and asserts he had been unable to timely file his notice because he had been moved to another unit, "which did not allow [him] to process [his] Rule 32 forms." He attaches documents showing he had submitted paperwork for copying on June 19 but had been transferred before it was returned to him.
¶4 The time limits of Rule 32.4(a)(2)(C) are jurisdictional. A.R.S. § 13-4234(G); State v. Lopez, 234 Ariz. 513, ¶ 8 (App. 2014). Martinez signed his notice on June 26—four days after it was required to have been filed under Rule 32.4(a)(2)(C). Despite having had the opportunity to do so, Martinez did not assert in his notice that his failure to timely seek post-conviction relief was not his fault. See Ariz. R. Crim. P. 32.1(f). Finally, as the trial court noted, his claim of ineffective assistance cannot be raised in an untimely proceeding, and he has identified no claim that is exempt from the timeliness requirement. See Ariz. R. Crim. P. 32.1(a), 32.4(a)(2)(A).
Because Martinez did not submit his petition for mailing before the ninety-day time limit expired, the prisoner mailbox rule does not apply. See State v. Rosario, 195 Ariz. 264, ¶ 10 (App. 1999) ("If [a prisoner] timely gave his notice of petition for post-conviction relief to the Arizona Department of Corrections . . . for mailing, his notice must be considered timely filed."). --------
¶5 We grant review but deny relief.