Opinion
No. 1 CA-CR 14-0359 PRPC
08-09-2016
STATE OF ARIZONA, Respondent, v. MANUEL L. OCHOA, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent Manuel L. Ochoa, San Luis Petitioner Pro Se
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Petition for Review from the Superior Court in Maricopa County
No. CR2008-114600-001
The Honorable Bruce R. Cohen, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent
Manuel L. Ochoa, San Luis
Petitioner Pro Se
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.
THUMMA, Judge:
¶1 Petitioner Manuel L. Ochoa seeks review of the superior court's order denying his petition for post-conviction relief, filed pursuant to Arizona Rule of Criminal Procedure 32.1. Absent an abuse of discretion or error of law, this court will not disturb a superior court's ruling on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012). Because Ochoa has shown no such error, this court grants review but denies relief.
¶2 In June 2012, Ochoa pled guilty to possession of marijuana for sale, a Class 2 felony, with one historical felony conviction, and possession of drug paraphernalia, a Class 6 designated felony. In July 2012, the superior court sentenced him to a presumptive 9.25-year prison term on the possession of marijuana for sale conviction followed by a two-year term of probation on the paraphernalia conviction.
¶3 In January 2014, Ochoa filed a notice of post-conviction relief and motion for delayed Rule 32 post-conviction relief expressing an intent to claim newly discovered evidence, constitutional issues, and ineffective assistance of counsel for failure to file a timely notice of post-conviction relief. In the space provided in the notice for a petitioner to state the facts that support the claims and the reasons for not raising the claims in a timely manner, Ochoa claimed he was not law-trained and without legal material or resources, adding that "[e]vidence will show that defendant was not in possession or control of marijuana that was found at the residence in which defendant was not the owner or a tenant thereof."
¶4 The superior court summarily dismissed Ochoa's claims as untimely and that he failed to state a claim for which relief can be granted in an untimely Rule 32 proceeding. Ochoa unsuccessfully sought reconsideration and this petition for review followed.
¶5 When a conviction is entered on a guilty plea, a defendant must file a notice of post-conviction relief in a Rule 32 "of-right" proceeding within 90 days after entry of judgment or sentence. Ariz. R. Crim. P. 32.4(a). Ochoa's notice was filed more than 17 months after entry of judgment and sentencing. A trial court may summarily dismiss a notice of post-conviction relief as untimely if the defendant did not file the notice within 90 days. State v. Rosario, 195 Ariz. 264, 266 ¶ 7 (App. 1999).
¶6 Although Ochoa claims that the failure to file a timely Rule 32 notice was not his fault, he provides no facts to support that claim in either
his notice of post-conviction relief or his petition for review. If a defendant who seeks post-conviction relief does not state meritorious and supported reasons for why the defendant did not raise a claim in a timely manner, the superior court "shall" dismiss the post-conviction relief proceedings. Ariz. R. Crim. P. 32.2(b). "[C]ompliance with Rule 32 is not a mere formality." Canion v. Cole, 210 Ariz. 598, 600 ¶ 11 (2005). A petitioner must "strictly comply" with Rule 32 in order to be entitled to relief. Id. For these reasons, Ochoa has not shown the superior court erred in dismissing his claims.
¶7 Accordingly, although this court grants review, we deny relief.