Opinion
No. 2 CA-CR 2019-0181-PR
12-12-2019
THE STATE OF ARIZONA, Respondent, v. RONY MATUL SARAT-ROJOP, Petitioner.
Rony M. Sarat-Rojop, Florence 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NOT FOR PUBLICATION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 Pima County
No. CR20084597
The Honorable Deborah Bernini, Judge
REVIEW GRANTED; RELIEF DENIED
Rony M. Sarat-Rojop, Florence
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.
EPPICH, Presiding Judge:
¶1 Rony Sarat-Rojop seeks review of the trial court's order summarily 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 abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Sarat-Rojop has not shown such abuse here.
¶2 After a jury trial, Sarat-Rojop was convicted of three counts of sexual assault and one count each of kidnapping, aggravated assault, sexual abuse, and robbery. We affirmed his convictions on appeal but remanded the case to the trial court to clarify his sentences. State v. Sarat-Rojop, No. 2 CA-CR 2009-0398, ¶ 6 (Ariz. App. Feb. 15, 2011) (mem. decision). On remand, the court ordered that Sarat-Rojop's sentences for kidnapping and one count of sexual assault were to be served concurrently, and that the remaining sentences would be consecutive to those counts and to each other, resulting in an aggregate prison term of thirty-six years.
¶3 Sarat-Rojop sought post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but found no "meritorious issue of law or fact" to raise under Rule 32. Sarat-Rojop did not file a pro se supplemental petition, and the trial court dismissed the proceeding in October 2011.
¶4 In June 2019, Sarat-Rojop filed a notice of and petition for post-conviction relief asserting there were "newly discovered material facts" supporting a claim of ineffective assistance of counsel and "juror bias." He claimed that, "with the help of a jailhouse lawyer and translator," he had "discover[ed] evidence" of "juror bias," specifically that the trial transcript showed one juror had not made "an unequivocal statement of impartiality." The trial court summarily dismissed the proceeding, concluding the issues Sarat-Rojop had identified could not be raised in an untimely proceeding and, in any event, had been waived because they
could have been raised on appeal or in his first petition for post-conviction relief. This petition for review followed.
¶5 On review, Sarat-Rojop repeats his claims and asserts they are "not untimely." But the claims he lists are constitutional claims that are cognizable under Rule 32.1(a) and, as such, cannot be raised in an untimely proceeding like this one. See Ariz. R. Crim. P. 32.2(a)(3), (b), 32.4(a)(2)(A). Although Sarat-Rojop characterized his claims below as falling within Rule 32.1(e) and not subject to preclusion under Rule 32.2 or the timeliness requirements in Rule 32.4, that rule does not apply because it does not contemplate a claim of newly discovered ineffective assistance of counsel or trial error and is instead restricted to "newly discovered" material facts that "probably would . . . change[] the verdict." See State v. Serna, 167 Ariz. 373, 374 (1991) (describing five elements of cognizable newly discovered evidence claim).
¶6 And, Sarat-Rojop's reliance on State v. Pruett, 185 Ariz. 128 (App. 1995), is misplaced. There, we concluded a pleading defendant may, in a timely, successive, Rule 32 proceeding, raise a claim of ineffective assistance of counsel who had represented him in his first, "of-right" Rule 32 proceeding. Id. at 131. But Sarat-Rojop's second notice was not timely filed, see Ariz. R. Crim. P. 32.4(a)(2)(D), and, in any event, he is a non-pleading defendant and is not entitled to raise a claim of ineffective assistance of Rule 32 counsel, see State v. Escareno-Meraz, 232 Ariz. 586, ¶ 4 (App. 2013).
¶7 We grant review but deny relief.