Opinion
No. 2 CA-CR 2018-0224-PR
10-12-2018
THE STATE OF ARIZONA, Respondent, v. MICHAEL ISIDORO SANCHEZ, Petitioner.
Michael I. Sanchez, 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NOT FOR PUBLICATION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 Cochise County
No. CR201300346
The Honorable Karl D. Elledge, Judge
REVIEW GRANTED; RELIEF DENIED
Michael I. Sanchez, Kingman
In Propria Persona
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Vásquez concurred.
BREARCLIFFE, Judge:
¶1 Michael Sanchez seeks review of the trial court's order summarily dismissing his successive notice of post-conviction relief filed pursuant to Rule 32.4(a), 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). Sanchez has not shown such abuse here.
¶2 Sanchez pleaded guilty to sexual conduct with a minor under the age of fifteen and attempted sexual conduct with a minor under the age of fifteen. The trial court sentenced him to a twenty-five year prison term on the first count and, for the second, suspended the imposition of sentence and placed him on lifetime probation. He sought post-conviction relief, raising various claims including that his trial counsel had been ineffective and that there was newly discovered evidence. The trial court summarily denied relief, and we denied relief on review. State v. Sanchez, No. 2 CA-CR 2015-0359-PR (Ariz. App. Dec. 22, 2015) (mem. decision).
¶3 In 2016, Sanchez filed a second petition for post-conviction relief, again raising claims of ineffective assistance of counsel and newly discovered evidence. The trial court dismissed the petition, and this court denied relief on review. State v. Sanchez, No. 2 CA-CR 2017-0123-PR (Ariz. App. July 14, 2017) (mem. decision).
¶4 Sanchez filed another notice of post-conviction relief in August 2017. Appointed counsel filed a notice stating she had reviewed the record but found no claims to raise in a Rule 32 proceeding. After denying Sanchez's second motion seeking additional time to file a pro se petition, the trial court dismissed the proceeding, determining the claims of ineffective assistance of counsel Sanchez had identified in his notice were without merit. This petition for review followed.
¶5 On review, Sanchez first argues the trial court erred by denying his motion for an extension. He asserts that he was unable to
timely file his petition because of delays in his receipt of legal materials, constituting "extraordinary circumstances." After appointed counsel has filed a notice that there are no colorable claims to be raised, a court is permitted to grant a defendant an extension to file a pro se petition "only on a showing of extraordinary circumstances." Ariz. R. Crim. P. 32.4(d)(2)(B). Sanchez has not identified any claim raisable in this untimely and successive proceeding, see Ariz. R. Crim. P. 32.4(a)(2)(A), nor has he explained how the materials he sought would have aided him in raising any such claim. In the absence of some indication that Sanchez sought to raise a viable claim for relief, we cannot find the court abused its discretion in denying his request for an extension.
¶6 Sanchez next claims the trial court erred by dismissing his proceeding without allowing him to file a petition. As we understand his argument, he argues he was entitled to file a petition to challenge the effectiveness of his first Rule 32 counsel. For the same reason, he asserts the court erred by "treating" his notice "as a Rule 32 petition." But the opportunity for Sanchez to raise a claim of ineffective assistance of post-conviction counsel has passed—he was required to raise that claim in a second, timely proceeding. Ariz. R. Crim. P. 32.4(a)(2)(C). And we find no error in the court's decision to dismiss the proceeding when Sanchez failed to timely file a petition.
¶7 Sanchez further argues the trial court erred by "allow[ing]" appointed counsel "to become advisory counsel" without first finding his "appeal to be frivolous," citing Anders v. California, 386 U.S. 738 (1967). But this court has determined Anders review is not required for pleading defendants. State v. Chavez, 243 Ariz. 313, ¶ 1 (App. 2017). And, insofar as Sanchez asserts this most-recent proceeding is "of right" and he is thus entitled to effective counsel, he is mistaken. See Ariz. R. Crim. P. 32.1 (defining "of-right" proceeding). For that reason, we also deny his related claim that the court erred by denying his request that new counsel be appointed. A defendant is not entitled to counsel in a third, untimely Rule 32 proceeding. Ariz. R. Crim. P. 32.4(b)(2).
¶8 Last, Sanchez argues that his first Rule 32 counsel had been ineffective and that his enhanced sentence violated his due process rights. As we have explained, the time for Sanchez to raise the first claim has passed. See Ariz. R. Crim. P. 32.4(a)(2)(C). And, even were Sanchez's second claim raisable in an untimely proceeding like this one, see id., he did not raise it below. Accordingly, we do not address it further. See Ariz. R. Crim. P. 32.9(c)(4)(B)(ii) (petition for review must contain "a statement of
issues the trial court decided that the defendant is presenting for appellate review"); see also State v. Ramirez, 126 Ariz. 464, 467-68 (App. 1980).
¶9 We grant review but deny relief.